Objective historical reasoning — distinct from the political impulse to ransack the past for useful bits and the lawyerly impulse to torture desired meanings out of archaic language — offers a way out of the present impasse over birthright citizenship.
At issue is the meaning of the Citizenship Clause of the Fourteenth Amendment, which was framed in response to the refusal of state officials to acknowledge black Americans as citizens.
Congress had attempted to address this issue in the Civil Rights Act of 1866, but opponents cited the Supreme Court’s decision in Dred Scott v. Sandford, 60 U.S. 393 (1857) that Black Americans could not be citizens.
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