On February 24, 2025, Kurt Lash posted 8 pages on SSRN. It was an introduction to a work-in-progress about the original public meaning of the Citizenship Clause. Lash stated his intention to challenge a scholarly consensus which spans the ideological and methodological spectrum, asserting that "children born in the United States to noncitizen parents who intentionally refuse to comply with the legal requirements for entry into United States" are not constitutionally entitled to citizenship. He gave assurances that although the paper was still in production, it would be "written with all deliberate speed."
We now have 80 more pages. Lash has described the resulting 88 as a "completed article." I expect Lash's paper to be the leading academic defense of the constitutional position articulated in President Trump's January 20, 2025 executive order, "Protecting the Meaning and Value of American Citizenship" ("EO"). The EO purports to end birthright citizenship for the children of people who have entered the country unlawfully ("unlawful entrants"), as well as the children of temporary visitors. Lash's status as one of the leading Fourteenth Amendment scholars in the country compels careful attention to his arguments.
