Season 5, Episode 5 (Show 213): Birthright and Birthwrong

January 29, 2025

Birthright citizenship and the first sentence of the 14th Amendment are immediately fired upon by the newly minted Trump Administration.  We help you defend the Constitution.

CLE Credit Available for this episode from podcast.njsba.com.

The Trump Administration takes office, and the Constitution is immediately in the crosshairs. An executive order targeting birthright citizenship and the Fourteenth Amendment is issued on the first day, with an even more extreme version of its renouncement than had previously been contemplated.  The pushback begins in a Washington courtroom, and a Federal District Judge shoots it down with a nationwide injunction. But surely the legal battle continues; we are here to arm you with Professor Amar’s arguments, articulated over many years and well in advance of this crisis.  Text, history, structure, precedent, and more are placed in the service of the Constitution and one of its most fundamental and consequential sentences.  You should be in a position to argue this case before the Supreme Court after listening to this episode.

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)

Show Notes:

How to get Continuing Legal Education Credit for listening!

Virtually all lawyers and judges admitted to practice anywhere in the USA can obtain CLE (Continuing Legal Education) credit after listening to this episode by visiting podcast.njsba.com.  You do not have to be a New Jersey lawyer or resident or admitted to the NJ Bar; essentially every state has reciprocity arrangements with New Jersey.  When you visit the site you fill out a form and provide the code Andy read during the episode, pay a small fee, and within two weeks you will receive the certificate from New Jersey.  It couldn’t be easier.  Thanks to the New Jersey Bar Association for making this possible!  Note, too, that other podcast episodes from our “back catalog” now qualify for this credit as well.

Click to go to the website for CLE credit

Interpretation of the Citizenship Clause - Akhil Amar for the National Constitution Center

Professor Amar’s analysis of the Citizenship Clause – the first sentence of the 14th Amendment – from the National Constitution Center’s “Interactive Constitution.”

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What the Constitution Really Says About Birthright Citizenship - Time.com

Professor Amar is joined by Steven G. Calabresi, co-founder of the Federalist Society,  in a piece for Time.com in 2018, during the first Trump Administration.

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United States v. Wong Kim Ark (1898)

The landmark 19th century Supreme Court case on birthright citizenship, later reaffirmed by the Court and encoded in statute by Congress in the mid 20th century.

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Citizenship Of Children Born In The United States Of Alien Parents - Attorney General Bates (1862)

The 1862 opinion of the Attorney General, Bates, in the Lincoln Administration on the nature of US citizenship prior to the 14th Amendment, making reference to the earlier opinion by the New York Court of Chancery as well as the British Common Law.

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