Amicus With Dahlia Lithwick | Immigration Myths and Birthright Citizenship
March 14, 2026
Guest: Anna O. Law
Episode Overview
In this episode, host Dahlia Lithwick sits down with constitutional and immigration scholar Anna O. Law to debunk enduring myths about American immigration, citizenship, and the origins of "birthright citizenship" under the 14th Amendment. With the Supreme Court poised to hear arguments in a case challenging birthright citizenship for children of non-citizens, the conversation stresses the urgent need to understand the deep—and often misunderstood—history of U.S. migration and citizenship law. Drawing from Law’s new book, Migration and the Origins of American, African Americans, Native Americans and Immigrants, the episode explores how bad history and collective memory have fueled legal and political misconceptions, influencing modern debates and the courts.
Key Discussion Points & Insights
1. The Central Myth of American Immigration
[05:03] Anna O. Law:
- The prevailing myth: Before the late 19th century, "America had open borders”—anyone could come, work hard, and achieve the American Dream.
- In reality, “there were states enforcing migration laws in the 19th century…from the colonial period [onward], states had elaborate sets of laws recruiting certain groups of people to come and restricting other people so they don’t come.”
- Early migration restrictions, such as the “public charge” rule, have roots in colonial laws.
[07:50] Law & Lithwick:
- The distorted collective memory fuels both political and legal “bad originalism,” allowing false narratives about American generosity to shape Supreme Court debates.
"If memory tells us a story of how things came to be, erasure occludes origins, disguises, causes, hides, defeats, and falsifies achievements."
—Quoting Jack Balkin, recited by Dahlia Lithwick [06:37]
2. State vs. Federal Power—Who Controlled Migration?
[09:59] Anna O. Law:
- States, not the federal government, ran both interstate and international migration through the 19th century:
- States had the power to deport people and restrict them (e.g., Massachusetts deporting the poor to Ireland/Europe; slave states banning free Blacks).
- Internal migration was also state-controlled, often used to reinforce race-based exclusions.
3. The Reality of the Colonial Era
[14:27] Anna O. Law:
-
Colonial migration policy focused more on "producing a population"—importing people (indentured servants, convicts) to occupy and work the land, often violently taken from Native Americans.
-
Indentured servitude was primarily a migration, not simply a labor category.
- Indentured servants signed contracts to work a set number of years in exchange for passage.
- There was a legal and moral distinction between indentured servants and enslaved Africans; contracts and finite terms vs. perpetual, hereditary enslavement.
[17:38] Law:
- Enslaved people had no legal recourse; their condition (and that of their children) was permanent. Indentured servants retained legal protections and the hope of eventual freedom.
4. Transition from Indentured Servitude to Slavery
[20:11] Anna O. Law:
- By the 1680s, the transatlantic slave trade overtook indentured servitude as the dominant labor migration:
- Word spread in Europe of the harsh conditions and lack of land, reducing voluntary migration.
- The British entry into the slave trade lowered the price of enslaved Africans, increasing incentives for planters.
5. Early Sovereignty Clashes: Colonies vs. Imperial Britain
[22:27] Anna O. Law:
- The colonies vigorously defended their right to control migration against the Crown, sometimes clashing over issues like South Carolina’s attempts to restrict the slave trade.
- These tensions are reflected in grievances articulated in the Declaration of Independence.
6. Native Americans and Citizenship—A Different Paradigm
[24:58] Anna O. Law:
- Native Americans were not migrants but the original inhabitants; colonial states promoted migration by offering “free” land that was in fact stolen.
- The goal of Native nations was not U.S. citizenship but sovereignty; citizenship often came at the cost of collective treaty rights and autonomy.
"[For Native people], what they most want is their sovereignty and their land ownership respected...Citizenship is not always a great thing for Native Americans."
—Anna O. Law [24:58]
7. Federal and State Power Struggles
[32:06] Anna O. Law:
- Before the Civil War, states held primary power over migration. The Alien Friends Act of 1798 revealed deep resistance to federal power, especially among slave states worried about federal deportation powers being used to emancipate enslaved people.
"[The] prospect of John Adams...saying, 'the president can have the right to deport aliens...' the slave states went nuts..."
—Anna O. Law [33:15]
8. The Reconstruction Amendments: Promise and Limits
[35:19] Anna O. Law:
- The 14th Amendment’s birthright citizenship clause was transformative for African Americans, but did not benefit all minorities equally.
- The amendments inadvertently facilitated other forms of labor exploitation and enabled anti-Chinese policies:
- Chinese immigrants’ labor was cast as “unfree,” paving the way for the Chinese Exclusion Act (1882).
9. "Subject to the Jurisdiction Thereof"—What Did It Mean?
[39:47] Anna O. Law:
- At the adoption of the 14th Amendment, the phrase excluded only diplomats’ children, Native Americans under tribal sovereignty, and invading soldiers’ children—not children of non-citizens or migrants.
- Misconceptions persist that the framers couldn’t have meant to include children of “illegal aliens.” Law rebuts this as “ahistorical and wrong”:
"...there were unauthorized people...did the 14th Amendment include their children? Yes, it did, and they knew that."
—Anna O. Law [41:11]
- The framers explicitly debated and included children of reviled groups, particularly Chinese immigrants, despite their parents being ineligible for naturalization.
10. Federalism: Myth vs. Reality
[42:12] Dahlia Lithwick & Anna O. Law:
- Federalism is often idealized as protective of individual rights, but in practice, it sometimes allows both the state and federal government to shirk responsibility—especially in the context of Native nations' sovereignty and minority rights.
"Federalism can actually become the three card Monty by which nobody’s rights are protected."
—Dahlia Lithwick [42:12]
- The “valence” of state vs. federal power shifts: states were once the main source of discriminatory policies, but today, some states are now more migrant-supportive than the federal government.
11. Supreme Court Precedent: The Wong Kim Ark Case
[47:11] Anna O. Law:
- United States v. Wong Kim Ark (1898) affirmed that children born in the U.S. to non-citizen parents—including those ineligible for naturalization—are U.S. citizens.
- The case involved a despised minority (Chinese immigrants) and reinforced that the 14th Amendment applies universally, regardless of parents’ status.
"[The Justices] are just as racist and as discriminatory. But...if the birthright citizenship is to have its full force, you can’t be carving out exceptions for ethnic groups and racial groups."
—Anna O. Law [48:01]
- Arguments from the dissent in Wong Kim Ark echo in present efforts to dismantle birthright citizenship.
12. Why "All Persons" Matters
[51:40] Anna O. Law:
- “All persons,” not just citizens, are protected under the 14th Amendment.
“They could have said that the rights of equal protection and due process are for all citizens. They chose not to use all citizens. It says all persons...”
—Anna O. Law [51:40]
- This was to ensure a national standard above discriminatory state citizenship rules.
- Birthright citizenship was enshrined as a constitutional amendment (not just statute) to prevent its easy erosion by later Congresses or executives.
“Birthright citizenship is not just a law. ...You certainly cannot change it by executive order.”
—Anna O. Law [53:41]
Notable Quotes & Memorable Moments
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On the myth of open borders:
“All the other states who controlled international and interstate migration, those laws were restrictionist.”
—Anna O. Law [07:50] -
On federalism and rights:
“From the Native nations’ point of view, it doesn’t matter whether the federal government or the state government is bestowing or withholding rights…We want the right and the ability to self-govern…”
—Anna O. Law [43:02] -
On the intent behind the 14th Amendment:
“They meant to make [birthright citizenship] more durable...you certainly cannot change it by executive order.”
—Anna O. Law [53:41] -
On the lasting impact of citizenship laws:
“The birthright citizenship clause...is not a tide that lifts all boats.”
—Anna O. Law [36:15]
Timeline & Timestamps for Key Segments
- [05:03] – The biggest myth about American immigration and its realities
- [14:27] – Indentured servitude as a migration category, not just labor
- [17:38] – Legal and social distinctions between indentured servants and enslaved Africans
- [20:11] – Transition from indentured servitude to slavery, economic forces, and British politics
- [24:58] – The role and exclusion of Native Americans in citizenship and migration law
- [32:06] – Early confusion over state vs. federal migration authority; the Alien Friends Act
- [35:19] – 14th Amendment impacts: the promise of black citizenship, the exclusion of others, and the roots of Chinese Exclusion
- [39:47] – Deconstructing “subject to the jurisdiction thereof”
- [47:11] – The significance of Wong Kim Ark and the endurance of the 14th Amendment
- [51:40] – Why “all persons” is critical in the Constitution and can’t be altered by ordinary law
Context for Upcoming Supreme Court Case
The discussion is especially timely with the Supreme Court soon to hear a case that could challenge established birthright citizenship. The episode emphasizes the deeply-rooted legal, historical, and political consensus—rooted in both practice and the text and intent of the 14th Amendment—behind birthright citizenship. Anna O. Law and Dahlia Lithwick illustrate how current arguments to overturn this principle rely on misunderstandings and willfully bad history, warning of the real constitutional stakes involved.
Resources & Further Reading
- Anna O. Law, Migration and the Origins of American, African Americans, Native Americans and Immigrants (March 24, 2026)
- United States v. Wong Kim Ark (1898)
- 14th Amendment, U.S. Constitution
- Chinese Exclusion Act (1882)
This episode is a rigorous yet accessible primer for anyone eager to understand the authentic history of American citizenship—and why getting it right is crucial as the Supreme Court faces new challenges to longstanding rights.