A Civil War-era treason case may be the secret weapon against Trump's Supreme Court case

President Donald Trump's administration had a disastrous day at the Supreme Court trying to argue in favor of the executive order rewriting the 14th Amendment and eviscerating birthright citizenship — but there was one compelling argument against his plan that has hardly featured in any of the legal discussion, Steven Lubet argued for Slate on Thursday, and it all comes back to one of America's most famous cases of political violence in 1859: the uprising of John Brown.

The entire argument, Lubet said, turns on the fact that the 14th Amendment guarantees citizenship to everyone born in the United States who is "subject to the jurisdiction thereof." That phrase, in this context, simply means "subject to the laws of the U.S.," which would be true of everyone in the U.S. — unauthorized immigrants included — with some very narrow exceptions like visiting diplomats or a hypothetical invading military force.

In Trump's formulation, though, said Lubet, "The 14th Amendment’s use of the word jurisdiction [must] be reinterpreted to mean 'allegiance.' Then, allegiance must be defined to exclude the children of temporary visitors and immigrants lacking legal status. Both parts of the argument are wrong, but the claim about limited allegiance is especially wrong in a way that has not been widely addressed."

As it turns out, said Lubet, we've already had a court case testing whether "allegiance" requires someone to have permanent residence, and it was the treason case of John Brown, an abolitionist radical who led an army into Virginia in 1859 to liberate slaves, leading to shootouts that killed over a dozen people.

For this, Lubet wrote, Brown, who survived the ordeal to be arrested, was charged with murder, insurrection, and treason against the Commonwealth of Virginia — offenses which carried a death sentence.

"The latter charge, comprising a breach of allegiance owed to a sovereign or state, was crucial because it was not subject to reprieve or commutation by the governor without consent of the Legislature," wrote Lubet. "Seeing virtually no hope of acquittal, Brown’s attorneys were desperate to preserve the possibility of commutation. They repeatedly moved to dismiss the treason count, noting that conviction required a 'breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary.'" In other words, since Brown didn't live in Virginia, he couldn't commit treason against Virginia.

Ultimately, he wrote, this didn't work.

"The prosecution responded that Brown’s very presence in Virginia imposed an obligation of temporary allegiance, which he violated by conspiring and attempting to 'break down the existing government of the Commonwealth,'" wrote Lubet. "Judge Richard Parker agreed with the prosecutors, holding that treason may be committed 'wherever allegiance is due.'" Brown was convicted and hanged for his crimes — and the precedent set by his case would have been well known to everyone writing the 14th Amendment.

"The Supreme Court has increasingly relied on history and tradition as the key to constitutional meaning," Lubet concluded. "Thus, even if the 14th Amendment’s reference to 'jurisdiction' were intended to include an obligation of allegiance — which the challengers of Trump’s executive order do not concede — the Framers would have recognized that temporary presence imposed sufficient allegiance for even a life-and-death decision."