Our hosts, law professor Ilan Wurman and Kathryn Johnson, finally take their promised deep dive into the birthright citizenship case that the Supreme Court will hear next week. Ilan recently testified in Congress on the issue, and has a lot to get off his chest. He and Kathryn discuss Peter Schweizer's testimony about Saipan, an island north of Guam for which there is statutory birthright citizenship and lax visa rules for Chinese citizens. Schweizer estimates that upwards of hundreds of thousands of children might have been born in Saipan to Chinese parents who would now be American citizens if the conventional wisdom prevails. They talk about legislative solutions to problems that might occur if the Supreme Court rules in favor of the Trump Administration, including using Congress's naturalization power. They observe how the Democrats had mostly emotional arguments at the hearing. Ilan talks about his argument: how at common law, the test was not birth alone, but rather birth to parents under the sovereign's protection. He explains how consent was a precondition to protection, and protection was necessary to jurisdiction. Ilan talks about his disagreement with Chuck Cooper, who thinks Wong Kim Ark was wrongly decided. Our hosts then talk about the government's argument about temporary sojourners, and whether we're allowed to cite as evidence sources written by people in the past who held racist views. They talk about some amicus briefs, including Akhil Amar's "under the flag" brief, which obscures more than it helps. Finally, they talk about Adrian Vermeule's post in the New Digest, arguing that the nature of republics and general principles of jurisprudence answer the question at hand better than originalism can.
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Show Notes/Resources:
Listen to Ilan's opening remarks at the Senate Judiciary Committee hearing.
Ilan's Amicus Brief to the Supreme Court.
The Invisible Coup by Peter Schweizer.
National security amicus brief by Joshua Steinman.
Akhil Amar's amicus brief.
Adrian Vermeule on birthright citizenship and originalism.
Apr 23 20261 h et 7 min