Teaching the Trump v. Barbara Case: A Practical Lesson Plan

Trump v. Barbara ranks among the Supreme Court’s most consequential rulings of the recent period. Most landmark decisions emerge from a lineage of related cases. Slaughter followed from Seila Law, which sprang from Justice Scalia’s Morrison dissent. Dobbs followed from Casey, which traces back to Roe. Students for Fair Admission followed Grutter, which followed Bakke. Occasionally, the Court decides an issue in a relatively uncharted territory. Heller represented one such instance where the Court created an entirely new domain of jurisprudence; Barbara stands as another. Both cases rest on textual, historical, and traditional foundations, and both ended with a 5-4 division on the constitutional question.

The challenge of teaching Barbara is substantial. Several difficult pedagogical choices arise. First, where does it fit within the curriculum? It does not neatly align with typical discussions of the Fourteenth Amendment’s Due Process or Equal Protection Clauses. Second, how much of the case should be included? The full ruling runs nearly 200 pages, and the dissents exceed the majority by more than triple in length. Third, which issues deserve focus? The narrative spans multiple eras: the English common law era, antebellum America, the Reconstruction period, and the late nineteenth century. Fourth, is it still necessary to address Wong Kim Ark? The Chief Justice argued that the majority opinion flowed naturally from that precedent; the dissent argued that Wong Kim Ark does not control. Fifth, should the assignment be forward-looking? This question arises in light of ongoing efforts to curb birthright citizenship.

Randy Barnett and I wrestled with these questions for a considerable time. In the end, we settled on dividing the decision into six excerpts totaling about sixty pages to be taught across two classes. If a professor prefers, three excerpts amounting to roughly thirty pages can be covered in a single class. The choice of excerpts depends on what the instructor intends to emphasize. We placed the material at the close of our chapter on the Fourteenth Amendment, immediately following Plessy, which struck us as the most logical placement for including the decision.

You can obtain the excerpt from our supplement here. Our explanation of the breakdown runs as follows:

The Barbara decision extends to nearly two hundred pages, and every opinion provides a thorough historical examination of citizenship dating back to seventeenth-century England. To render the material more approachable, we have partitioned Barbara into six distinct sections. The first section contrasts the majority’s and the dissenters’ competing conceptions of “subject to the jurisdiction”; the next three sections present different types of evidence regarding the meaning of the term “subject to the jurisdiction”; the fifth section advances a view that the outcome is statutory rather than constitutional in nature.

• The initial excerpt lays out the rival understandings of “subject to the jurisdiction” held by the majority and the dissenters. Specifically, the majority posits that the Fourteenth Amendment adopts a tempered version of the English common-law birthright citizenship rule, whereas the dissenters contend that America charts a different course.
• The second, third, and fourth excerpts examine several strands of evidence about the original meaning of the Citizenship Clause: (a) an analysis of the text itself; (b) the context supplied by the Citizenship Clause within the Civil Rights Act of 1866; (c) the congressional debates surrounding the Citizenship Clause during the formation of the Fourteenth Amendment; and (d) the executive branch’s post-ratification practices.
• The fifth excerpt offers a synopsis of how the judiciary has interpreted the Citizenship Clause—centered on the Supreme Court’s decision in United States v. Wong Kim Ark (1898), a ruling issued some decades after ratification. Before this excerpt, we print a portion of Wong Kim Ark to allow readers to evaluate what the case held prior to examining the Justices’ competing characterizations of it.
• In the sixth and final excerpt, Justice Kavanaugh adopts a markedly different route. On one hand, he aligns with the other dissenters in rejecting the majority’s reading of the Fourteenth Amendment. He contends that the President’s executive orders clash with the Constitution’s original meaning. On the other hand, there is agreement that the Naturalization Clause empowers Congress to extend citizenship beyond the original scope of the Citizenship Clause. Kavanaugh insists that Congress did precisely that when it enacted the Immigration and Nationality Act of 1952. According to his analysis, Congress could retract part of this expansion by passing a statute that returns to the original understanding of the Fourteenth Amendment. No other Justice accepts Kavanaugh’s interpretation of the 1952 statute. We also include a brief rebuttal from Justice Thomas.

I welcome feedback and suggestions on effective approaches to teaching this case.