Is Trump’s Plan to End Birthright Citizenship ‘Dred Scott II’?

The 14th Amendment overturned the 1857 decision that denied citizenship to Black people. Scholars say President Trump’s proposal betrays that history.

Thirty years ago, Congress considered a bill much like President Trump’s recent executive order on birthright citizenship. It sought to deny automatic citizenship to children born in the United States to parents who were not legal residents. Such bills have been introduced from time to time, and they have never gone anywhere.

The Citizenship Reform Act of 1995 was notable mostly because it provoked a remarkable statement on the deeper meaning of birthright citizenship from one of the witnesses who testified against the bill, a lawyer named Walter Dellinger. A constitutional scholar then in charge of the Office of Legal Counsel, the elite unit of the Justice Department that advises the executive branch on the law, Mr. Dellinger first addressed a question he thought barely worth discussing.

“My office grapples with many difficult and close issues of constitutional law,” he said. “The lawfulness of this bill is not among them. This legislation is unquestionably unconstitutional.”

That statement anticipated one on Thursday from Judge John C. Coughenour of the Federal District Court in Seattle. At a hearing before issuing a temporary restraining order blocking Mr. Trump’s order, Judge Coughenour said: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”

If birthright citizenship is to be revoked, Mr. Dellinger said in 1995, it will require a constitutional amendment. That led to his larger point, which was that changing the rules would be a catastrophic betrayal of American values forged in the Civil War.

“To adopt such an amendment would not be technically unlawful,” he said, “but it would flatly contradict our constitutional history and our constitutional traditions.”