Judge Ho, Original Intent, and the Citizenship Clause
15th May 2025
In 2006, James C. Ho wrote an article titled “Defining ‘American’: Birthright Citizenship and the Original Understanding of the Fourteenth Amendment.” Since his appointment to the Fifth Circuit Court of Appeals in 2018, his article has gained greater attention and authority than it otherwise might have done. Judge Ho was nominated by President Trump as an adherent of original intent jurisprudence, and the president’s confidence in Judge Ho’s fidelity to the Constitution seems to have been amply borne out by some of his early opinions. In one concurring opinion, he wrote that “it is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case.”
“Text and original understanding” are, indeed, the reliable touchstones of constitutional jurisprudence. But Judge Ho did not live up to those standards in his attempt to uncover the meaning of the Citizenship Clause of the 14th Amendment, even as he has recently indicated he understands the high stakes involved. He did write that “under our Constitution, the people are not subjects, but citizens.” While Judge Ho provides no acknowledgment, this is a close paraphrase of a statement made by signer of the Declaration and the Constitution and Supreme Court Justice James Wilson quoted in chapter two. “Under the Constitution of the United States,” Wilson wrote in 1793, in the case of Chisolm v. Georgia, “there are citizens, but no subjects.”
There are crucial differences. Justice Wilson was criticizing Blackstone and the common law as providing no legitimate ground for republican government. Judge Ho, however, argues that the holding in Wong Kim Ark is correct—that the Citizenship Clause of the 14th Amendment rests on the English common law, despite the fact that the principal architects of the Citizenship Clause clearly argued that it did not. It would be difficult, then, to argue that Judge Ho was an original intent jurisprude on the issue of citizenship.