The Supreme Court will soon hear arguments in the historic birthright citizenship case. It is a hearing that has been over 150 years in the making, since the ratification of the 14th Amendment. It is not just a long-debated question that has divided the nation, but it has divided many lawyers as well.
For that reason, there was one brief that stood out before the court: the amicus brief of the American Bar Association.
The ABA filed its “friend of the court” brief to argue that the matter is clear: Anyone who gives birth on our soil, even if here illegally or only briefly, may claim U.S. citizenship for their child
Most nations on Earth, including many of our European allies, reject birthright citizenship, and many of us in this nation believe that it is a foolish policy. Yet, even as someone who opposes birthright citizenship, I have long believed and argued that there are good-faith arguments on both sides of this debate.
The sponsors of this language clearly disagreed on the issue at the time of its enactment. Some stated at the time that the language did not allow for birthright citizenship.
The debate comes down to six poorly chosen words: “and subject to the jurisdiction thereof.” Those words were not in the original draft, but were inserted by an amendment. Thus, they were not superfluous or casual verbiage, but an intentional condition. They were placed in the middle of an otherwise clear statement that “all persons born or naturalized in the United States … are citizens of the United States.”
For more than a century, many have argued that the words reflect an intent to limit the amendment to citizens and legal residents who are subject fully to the jurisdiction of the United States.
That brings us back to the bar association. Regardless of how one comes out in the fascinating historical and constitutional debate, this is a case one would expect the ABA to sit out. It clearly does not speak for all lawyers on the issue, yet, it filed a strident brief and laid out a parade of horribles about what would happen if the Supreme Court were to reject birthright citizenship.
I found the brief to be one of the least compelling submissions to the court. But, once again, the media will portray the brief as speaking for American lawyers, even though the ABA represents less than two out of every ten attorneys.
I previously wrote a column on these pages on “the rise and fall of the American Bar Association,” exploring how the ABA has alienated many lawyers with its partisan advocacy. When it was founded on August 21, 1878, in Saratoga Springs, New York, the 75 lawyers present from 20 states (and the District of Columbia) wanted an organization to create a national system of standards for “the advancement of the science of jurisprudence, the promotion of the administration of justice.” It was created to focus on professional accreditation, education, and training.
That changed in 1990, when advocates overrode earlier votes to remain neutral on the constitutional interpretations supporting the right to abortion. The adoption of a pro-abortion position shocked many and fundamentally changed the culture at the ABA. (It is worth noting that the very arguments embraced by the bar association were later rejected by the Supreme Court in the Dobbs decision.)
Since that time, the ABA has become fully captive to partisans who use the organization to support liberal and often Democratic Party positions. The result has been a steady decline in membership.
Today, there are roughly 1.3 million lawyers in the U.S. Even if the ABA represented just half of that number, it would have 650,000 members. As recently as 2015, it still had 400,000. But more recently, membership has fallen to 227,000, or just 17 percent of the bar.
Despite complaints that the ABA has become a partisan organization, its leadership has doubled down with positions and programming that are echo chambers for the left. During Trump’s terms, the ABA has uniformly opposed him and his policies.
The ABA brief in favor of birthright citizenship is signed by ABA President Michele Behnke. It simply declares the language and history clear and resolved. It then predicts a virtual meltdown of order and due process in this country if birthright citizenship is not upheld.
The decline of the ABA to the point where it does not speak for most lawyers has followed a familiar model. The media also abandoned neutrality in covering such stories, with many journalism schools now teaching students that they are advocates for social justice. Likewise, academia largely purged its departments of Republicans, conservatives, and libertarians, as it increasingly prioritized advocacy over education.
All three of these groups have one thing in common beyond their liberal ideological bias and advocacy: They are all increasingly unpopular. Higher education and the media have plummeted in public trust to record lows. Like the ABA, which can no longer claim to speak even for most lawyers, there is little indication that the loss of trust is causing the leadership to do any soul-searching.
As memberships and revenues decline, the use of these institutions for advocacy remains personally beneficial. Behnke is leading an organization that is a shell of its former self, but she (like academics and journalists) is lionized for taking these positions.
Ironically, Behnke has a role in two of these areas, as a board member for the University of Wisconsin Law School and the University of Wisconsin Foundation and Alumni Association Board.
Faced with an ABA doubling down on these controversial positions, various states are moving to do away with its historical role in bar memberships.
The brief reaffirmed for many lawyers that the ABA is no longer a neutral and fair representative for all lawyers. It will continue to speak authoritatively longer after most lawyers abandoned the organization. That is why, whatever the outcome in Trump v. Barbara, the American Bar Association is likely to be the loser.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
