Season 5, Episode 6 (Show 214): Birthright Citizenship – Judges on Benches v Judges on Barstools

February 5, 2025

We continue our deep dive into birthright citizenship, this time by examining the arguments offered in support of the President’s position.

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

In the aftermath of a scathing ruling by the Federal District Court and its issuance of an order blocking President Trump’s executive order which attempted to abridge birthright citizenship, one might think the matter closed. But appeals await, no doubt.  Last podcast we offered Professor Amar’s arguments in support of his interpretation – and the interpretation of most legal experts – of the matter, but obviously there were arguments made in opposition.  We address these arguments, starting with those made in Trump’s brief in the case, and going beyond them as well.  In doing so, we revisit a familiar name: Justice Joseph Story, who Trump’s lawyers attempt to enlist in support of their position, with arguments that perhaps don’t tell the whole story.

(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

Elk v. Wilkins (1884)

John Elk seeks to be a U.S. Citizen, notwithstanding his birth on what we now term an Indian Reservation. Trump’s lawyers cite this case in their brief for reasons Professor Amar finds dubious, to say the least.

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John Bingham on Section One of the 14th Amendment

Professor Gerard Magliocca brought this quote from John Bingham, principal author of the first sentence of the 14th Amendment – indeed, of the entirety of the amendment – to our attention.  He makes clear the intended effect of the citizenship clause.

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Defendant's Brief in Washington v. Trump (2025)

Arguments set forth by the President’s lawyers in support of his executive order purporting to abridge birthright citizenship.  We review and address them in this podcast.

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