Justice John Marshall Harlan's 1898 Lecture Could Uphold Part of Trump's Birthright Citizenship Order

Justice John Marshall Harlan’s 1898 Lecture Resurfaces in Birthright Citizenship Debate

One of the most unexpected developments in the ongoing birthright citizenship case is the renewed attention on Justice John Marshall Harlan, a figure whose legal legacy continues to shape constitutional interpretation. A closer examination of Harlan’s lectures, including a 1898 constitutional law lecture, suggests that part of President Donald Trump’s 2018 executive order on birthright citizenship may withstand judicial review—specifically, the provision concerning children born to mothers on temporary visas.

Trump’s Executive Order and the Supreme Court’s Likely Ruling

The conventional wisdom holds that the U.S. Supreme Court will strike down Trump’s entire executive order, which sought to deny birthright citizenship to children born in the U.S. to non-citizens. In 2018, the analysis concluded that children of illegal aliens are citizens at birth. However, recent scholarship has complicated this view, making the question far closer than initially assumed. Despite this, the order should not apply to children of illegal aliens who are domiciled in the United States.

Where the analysis diverges is in the second part of Trump’s order, which targets children born to mothers on tourist or other temporary visas. Here, the Supreme Court may find unexpected support in Harlan’s 1898 lecture, where he argued that children of tourists—who cannot legally naturalize—would not be birthright citizens.

Harlan’s 1898 Argument and Its Relevance Today

In his 1898 lecture, Justice Harlan stated that children born to mothers on temporary visas would not automatically qualify for birthright citizenship. This position was later echoed during Supreme Court oral arguments, where Justice Neil Gorsuch and counsel for the ACLU dismissed Harlan’s views due to his dissent in the landmark case United States v. Wong Kim Ark (1898).

However, Wong Kim Ark did not establish a binding precedent on the status of temporary sojourners. More critically, Harlan’s dissenting opinions—often vindicated by history—should not be dismissed lightly. If Harlan’s interpretation is correct, the Supreme Court could adopt a middle-ground approach: upholding birthright citizenship for children of illegal aliens who intend to remain in the U.S., while restricting it for children born to mothers on temporary visas.

Revisiting Wong Kim Ark and the Fourteenth Amendment

The 1898 case Wong Kim Ark addressed birthright citizenship but did not conclusively rule on the status of children born to temporary visitors. Instead, the decision serves as persuasive rather than binding precedent. Harlan’s dissent in the case offers a compelling alternative interpretation, one that aligns with the original public meaning of the Fourteenth Amendment.

The Fourteenth Amendment, ratified in 1868, was a subject of vigorous debate among the justices who lived through its ratification. The majority and dissenting opinions in Wong Kim Ark reflected starkly different interpretations of the amendment’s original intent. Harlan’s dissent argued that the amendment did not extend birthright citizenship to children of temporary visitors, a view that may now gain traction in the Supreme Court’s deliberations.

Why Harlan’s Dissent Matters

Justice Harlan, often referred to as the "Great Dissenter," was known for his prescient legal views, many of which were later vindicated. His dissent in Plessy v. Ferguson (1896), for example, laid the groundwork for the eventual overturning of "separate but equal." Similarly, his interpretation of the Fourteenth Amendment in Wong Kim Ark may prove more aligned with originalist principles than the majority opinion.

If the Supreme Court adopts Harlan’s reasoning, it could uphold part of Trump’s executive order, creating a legal distinction between children born to undocumented immigrants who are domiciled in the U.S. and those born to mothers on temporary visas. This would mark a significant shift in how birthright citizenship is interpreted under the Fourteenth Amendment.

Key Takeaways

• Trump’s 2018 executive order sought to deny birthright citizenship to children born to non-citizens, including those on temporary visas.
• Justice John Marshall Harlan’s 1898 lecture argued that children of tourists would not qualify for birthright citizenship.
• Wong Kim Ark (1898) did not conclusively address the status of temporary visitors, leaving Harlan’s dissent as a persuasive alternative.
• The Fourteenth Amendment’s original public meaning remains a subject of debate, with Harlan’s interpretation gaining renewed relevance.
• A potential Supreme Court ruling could uphold birthright citizenship for some groups while restricting it for others.