The Bookshelf: Equal Citizenship 

Last month I had the pleasure of attending Princeton’s Constitution Day lecture, given by Yale law professor Akhil Reed Amar. It’s a pity that it was apparently not video-recorded, for while it was a somewhat loose and unstructured performance, it drew on deep reservoirs of learning and scholarship, and in many respects summarized the argument of Amar’s most recent book, Born Equal: Remaking America’s Constitution, 1840–1920, published last year. His lecture prompted me to pick up that book several days later, and I found it richly rewarding, for reasons I’ll explain in due course. 

Meanwhile, before having time to read Amar’s book, I had a Constitution Day lecture to deliver two days later at Providence College in Rhode Island. I had a fairly hectic travel day getting to Providence, but some leisure the following day before returning home, and so naturally I sniffed out the city’s best used bookstore, recommended by a Providence faculty member. The store, Paper Nautilus Books, turned out to be a real treasure house. Had I thousands to spend on rare and beautiful books, I would have come away with boxes of them from this store, where I must have spent a good two hours browsing. 

As it was, I came away with just one. I love to browse such stores because I regularly find books I never heard of that, as soon as I see them, I know I must have. (It’s the same reason one should browse library stacks whenever possible.) And what I found in Providence just happened to touch on a subject to which I had devoted part of my lecture the previous day. The book is The Development of American Citizenship, 1608–1870 by James H. Kettner, who spent his career teaching in Berkeley’s history department. Published in 1978, the book was adapted from his prize-winning 1975 Harvard dissertation, written under Bernard Bailyn.  

Kettner’s title seems rather dry, I know, but what makes his book newly important after almost a half century is that it makes an important contribution to a controversy that President Donald Trump set off at the beginning of his second term. On his first day in office in January 2025, Trump issued an executive order attempting to deny citizenship to the children born in the United States to immigrant parents who are in the country either unlawfully or temporarily. This immediately prompted litigation by parties intent on preventing this change in immigration law and policy—and renewed and intensified a scholarly debate that had previously been pretty desultory. (I joined in the debate here that spring.) Ultimately, after first reversing a nationwide injunction against Trump’s executive order in June 2025, the Supreme Court reached the merits (in Trump v. Barbara) a year later, holding that the order contradicted the opening sentence of the Fourteenth Amendment. 

That sentence reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Drafted in 1866 and ratified in 1868, this language is discussed near the conclusion of Kettner’s Development of American Citizenship, where he takes the same view that the Court took decades later: that the Fourteenth Amendment reflected a preexisting “presumption that membership [i.e., citizenship] was acquired automatically by all those born under the Republic.”   

Kettner’s signal contribution, for our purposes, is his detailed showing that this presumption of birthright citizenship was continuous and unbroken in American law long before the Fourteenth Amendment was added to the Constitution. The reason this is important is that everyone on either side of this issue agrees that the citizenship clause of the amendment was restorative—that it restated and revived the basis of American citizenship that the Supreme Court had traduced in the Dred Scott case. There the Court had said that no free black persons, even those born free in the United States, could ever be considered citizens of the nation or of any of the states. The original Constitution lacked any plain statement about who was a citizen, other than those foreign-born citizens who were naturalized under terms set by an act of Congress. The status of persons born in the United States was partly inferred from other provisions (such as the requirement that the president be a “natural born Citizen”), but otherwise left to state legislation and—most importantly—to the common law. 

All of this colonial, founding-era, and antebellum background, chiefly in the common law, is Kettner’s subject. His book closes with Reconstruction, but it begins with the 1608 decision of Calvin’s Case, a judgment involving the status in England of a Scottish-born subject of King James VI of Scotland, born after the monarch’s accession to the English throne as James I. As Lord Edward Coke explained, a person born on any soil governed by the sovereign had the rights and duties of a subject of that sovereign wherever he reigned. The relation was a reciprocal and perpetual one: reciprocal because it meant protection of the subject by the sovereign, and allegiance to the sovereign by the subject. Its perpetual character was such that neither the protection nor the allegiance could ever be dissolved or abrogated—say, by the subject’s emigration to another realm, even if he became a naturalized subject or citizen there. Coke underscored, moreover, that the court’s ruling for Calvin was no innovation, but a recognition of a common-law principle already centuries old. 

Fast-forward to the American Revolution. In rebelling against George III and declaring independence, the American patriots were breaking their allegiance to their erstwhile sovereign en masse, contrary to the perpetual-allegiance principle of the common law. No more were they to be anyone’s subjects; now they were to be citizens of the United States. The principle expressed by Coke was half-abandoned, as Kettner explains, under the influence of Locke and Blackstone (reflecting also the experience of the Glorious Revolution of 1688, when Britain threw off one sovereign and accepted another). But only half-abandoned: birth on the soil made one unqualifiedly a citizen, a member of the sovereign people (no crowned head now having the sovereignty), but allegiance was now defeasible, an obligation that could be abrogated by collective revolutionary action. 

The Revolution established, in Kettner’s phrase, “the idea of volitional allegiance” in the new country. During the revolutionary war itself, and for years afterward, a kind of sorting took place in the law, with courts deciding property, inheritance, and debt cases (under treaties, statutes, and the common law) according to differing claims by “whigs” (patriots) and “tories” (loyalists) regarding where their allegiance lay. For not all former colonists now considered themselves American citizens. “Even more perplexing,” writes Kettner, “was the question whether the Revolution had created one community of allegiance or many,” given the ambiguities of federal-state relations, especially before the Constitution was adopted. 

There are great riches of scholarship in Kettner’s book—about the concept of naturalization, which accepts the volitional character of allegiance by recognizing it can be transferred to the United States as one’s new country; about the persistent trouble for the idea of citizenship generated by slavery and racism in antebellum law, culminating in the travesty of Dred Scott; and about the evolving recognition that native-born Americans too could individually expatriate themselves by emigration, renunciation of their citizenship, and naturalization elsewhere. But a through-line of Kettner’s findings, a core around which everything else is wrapped, is the steady and unvarying presumption in antebellum American law that birth on our soil makes one a citizen. There was no other requirement such as the citizenship, “domicile,” or immigration status of one’s parents. That side of the common-law inheritance, he convincingly shows, was unaffected by the Revolution and Founding. 

As I read Kettner’s authoritative work, it occurred to me to wonder whether it had been cited in Trump v. Barbara, for it superbly answers the question, what was the Fourteenth Amendment’s citizenship clause restoring in our law? It turns out that Chief Justice Roberts, in his opinion for the Court holding the president’s executive order unconstitutional, cited Kettner twice: first, for the proposition that tribal Indians were not considered citizens in the early republic, and second, as a source on the chicanery practiced by antebellum slave states that tried to “deny citizenship to black Americans.” Kettner’s book is undoubtedly sound on these minor points, but it’s a shame that it was not given a more prominent place in the Court’s collation of evidence for the core principle of birthright citizenship. For reading Kettner (an author who died long before Donald Trump revived this issue) virtually decides the case, so thorough is his history. 

Given the age and relative obscurity of the book, I then mused, how did the chief justice (or his clerks perhaps) come across it? Did any of the briefs by parties or amici curiae cite it? The answer to this question was very interesting. Just two amicus briefs filed in the case cited Kettner—one with the citation buried in a passage quoted from a circuit court ruling on a different question, the other glancing at Kettner on the difficulties of sorting out the federal-state citizenship relation. But both briefs were filed in support of the president’s executive order, and failed to mention (of course) that the order could not possibly survive a reading of Kettner’s entire book.  

What about the contemporary flood of law-journal writings on the matter? In my own (admittedly non-exhaustive) files of recent scholarship on the birthright citizenship question, I found three articles citing Kettner. (Obviously I may have missed others.) Two recent articles coming down against birthright citizenship cited Kettner several times for this or that discrete piece of evidence in his book, but without acknowledging the overwhelming evidence he assembles for birthright citizenship’s continuity. Another article, this one by a scholar who affirmed birthright citizenship, cited Kettner on the status of tribal Indians and on slave states’ denials of black Americans’ citizenship (and so was possibly the source for the chief justice’s citation)—but again with no evident awareness of the overwhelming case the book makes for the continuity of the common-law birthright citizenship principle. 

Perhaps this small sample indicates nothing much; Kettner’s work may be better known and understood than I realize. But it may indicate something else—a penchant among legal scholars to engage in a kind of advocacy-driven cherry-picking, in which dense works of legal history, written in a disinterested detachment from contemporary legal controversies, are foraged in for stray bits of citation support, rather than really read, as one should read a book. There’s a reason, in other words, for the hoary expression “law-office history.” 

Which, in a way, brings me back to Akhil Amar and his book Born Equal, which is definitely not law-office history. Amar has now published eight books—I reviewed his third, America’s Constitution: A Biography, more than twenty years ago—and his latest is the second volume in a projected trilogy covering the whole of America’s constitutional history. Covering the years 1840–1920, Born Equal follows on the heels of The Words that Made Us: America’s Constitutional Conversation, 1760–1840 (2021), and will be followed in due course by the tentatively titled Earth’s Best Hope, bringing the story to the present. I have not read the first volume of this history, but now having read the second, I intend to, for this is truly first-rate constitutional and political history. (It is far better than the book that won the most recent Pulitzer Prize for history, Jill Lepore’s We the People.) 

Indeed, I trust Amar will not be offended by my saying that it is much better history than I expected from a law professor with no formal training in historical research. Twenty years ago, I thought America’s Constitution was very good, but Born Equal is superb. I have some disagreements with Amar on certain questions that are, from a legal standpoint, pretty important (I still don’t think he has put across the case for the “incorporation” of the Bill of Rights by the Fourteenth Amendment, for instance). But the great strength of this work is that it is not a legal history narrowly focused on the jurisprudence of the Supreme Court. Born Equal is emphatically extra-judicial history, treating our constitutional history as an ongoing conversation of our political life.  

The central figure, and hero, in Amar’s book is Abraham Lincoln, whom he calls the nineteenth century’s greatest originalist—the greatest interpreter and defender, in speech and in practice, of the principles of the founders’ constitutional order. Of Lincoln books we have no shortage, yet Amar’s treatment is fresh and lively. But Born Equal has a great cast of other characters—statesmen, abolitionists, woman suffragists; writers, politicos, and agitators; heroes and villains. What is at stake in the fourscore years covered by the book is the survival and reform of the American experiment, and how the country made progress from being founded on the principle of natural equality, to the vindication of citizen equality, to the achievement of political equality. 

In his closing pages, Amar remarks that he finished the manuscript of the book before President Trump issued his executive order undermining birthright citizenship for the children of some immigrants. Amar has, in the months since that order was issued, taken part in public commentary and legal advocacy on the question. But the reader will not find this matter directly addressed in Born Equal. Nevertheless, the thorough treatment Amar gives of the vicissitudes of black Americans’ status in nineteenth-century America makes it hard not to come to this conclusion: that the purpose of the Fourteenth Amendment was to settle, unequivocally, the claim of everyone born on American soil to membership in the American community. For students of American law and history, Born Equal is required reading. 

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