Justice John Marshall Harlan and Birth Tourism
The article examines the potential legal impact of Justice John Marshall Harlan's 1898 constitutional law lecture on the issue of birthright citizenship for children born to mothers on temporary visas, suggesting his views could support part of President Trump's executive order. While the author maintains that children of undocumented immigrants domiciled in the U.S. should retain birthright citizenship, he argues the Supreme Court may uphold restrictions on citizenship for children of temporary visitors. Harlan’s historical dissents, often later vindicated, lend credibility to reconsidering his stance on birthright citizenship for tourists despite limited precedent on the matter.
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Justice John Marshall Harlan and Birth Tourism Josh Blackman | 4.30.2026 9:17 AM One of the more unexpected aspects of the Birthright Citizenship case was the return of Justice John Marshall Harlan. But I think a more careful study of Harlan's lectures suggests that at least part of Trump's order may survive: specifically, the status of children whose mother is in the United States on a tourist or other limited visa. I discuss this question in a new Civitas Outlook essay. Here is the introduction: The conventional wisdom is that the Supreme Court will strike down President Trump's entire birthright citizenship order. In 2018, I wrote that children of illegal aliens are citizens at birth.
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