A new interpretation of the 14th Amendment is emerging that could amount to President Trump’s best argument for ending birthright citizenship, which is surfacing as the White Whale of his immigration policy.  

To say that such a ban, codified in an executive order on the first day of Mr. Trump’s second presidency, is facing judicial headwinds, is putting it mildly.  Two federal judges have determined that the order is unconstitutional and enjoined it from taking effect. More challenges are pending. A date at the Supreme Court appears likely for a dispute that transpires on constitutional bedrock.

Judge John Coughenour of Washington found that it is “blatantly” at odds with parchment and that it “boggles the mind.” The Department of Justice has appealed his injunction. Judge Deborah Boardman, who sits in Maryland, determined that “No court in the country has ever endorsed the president’s interpretation. This court will not be the first.” She reckoned that Mr. Trump’s intention “runs counter to our nation’s 250-year history of citizenship” and the “plain language” of the parchment.

Judge Judge Leo Sorokin, a federal judge at Boston, on Friday heard oral arguments with respect to two more birthright citizenship suites. He did not immediately issue a ruling. Before the hearing the attorney general of Massachusetts, Andrea Joy Campbell,  called birthright citizenship a “century-old promise made to American-born babies” and “a promise of equality born out of a collective fight against oppression, against slavery.” 

Dissenters from that position, though, are emerging. The Sun has learned that two legal scholars, Ilan Wurman and Randy Barnett, are readying a case for why Mr. Trump’s position is correct — the Enlightenment notion of a “social contract,” a term taken from a book by the French philosopher Jean-Jacques Rousseau and also chewed on by such worthies as John Locke and Thomas Hobbes.

America’s Constitution owes much to this idea, which centers the consent of the governed as the basis for the legitimacy of the state. Messrs. Wurman and Barnett will soon publish their position in writing, but Mr. Wurman offered the Sun an exclusive early glimpse.    

Mr. Wurman tells the Sun that the federal judges who have enjoined the order are mistaken. He ventures that Mr. Trump’s reading of the 14th Amendment could be consistent with that of those who drafted it. He explains that “It is at least a question whether persons who entered illegally have entered into the social compact, giving allegiance to America through an act of breaking its laws.” 

Mr. Trump’s executive order mandates that the government shall not “issue documents recognizing United States citizenship” to any children born on American soil to parents who were in the country unlawfully, or lawfully but temporarily. It would withhold automatic citizenship rights from newborns if neither of their parents was an American citizen or lawful permanent resident. It was scheduled to go into effect on February 19, but now faces two injunctions blocking it.

The 14th Amendment ordains that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The amendment overturned the Supreme Court’s decision in Dred Scott v. United States, which denied citizenship to slaves — and to those who have been freed. 

The crucial words in the amendment, Mr. Wurman tells me, are “subject to the jurisdiction” of the United States. That carve out has been understood to exempt certain categories of persons from birthright citizenship — diplomats, foreign forces, Native Americans, to take a few — who are in some sense immune from this nation’s laws. The Supreme Court, in the 1898 case of United States v. Wong Kim Ark, held that the child of Chinese immigrants was an American citizen. 

Those parents, though, were in America legally, which suggests that the more than century old case could be an inexact precedent for today’s controversy over the children of illegal migrants. Mr. Wurman tells the Sun that “the drafters of the 14th Amendment intended to link protection by the state and allegiance to it.” 

Mr. Wurman adds that “the background common law principle of citizenship by birth required the parents to have given allegiance to the sovereign in exchange for its protection. In other words, it seems to have required the parents to enter into the social compact with the polity. This did not require citizenship,” but could also apply to legal residents, as was the case in the circumstances that gave rise to Wong Kim Ark.

Mr. Wurman explains that he and Mr. Barnett are not going so far as some  who maintain that citizenship can only be acquired by blood and never geography. Mr. Wurman explains that “Some scholars have argued that the Fourteenth Amendment tied citizenship to blood but there’s basically no evidence for that. The drafters definitely adopted birthright citizenship, but the status of the parents still mattered. They didn’t have to be citizens, but they had to have given allegiance in exchange for protection.” 

That exchange of allegiance for protection — the terms of the social contract — is exactly, Mr. Wurman contends, what is missing in the groups of people who courts have determined are not “subject to the jurisdiction” of America — and therefore not entitled to birthright citizenship. He insists that such an argument as applied to illegal immigrants could provide ballast to Mr. Trump’s executive order.

These include diplomats, who retain loyalty to a foreign sovereign, as well as hostile foreign forces who set themselves against Washington. When the 14th Amendment was ratified in 1868, Native Americans were not citizens. That would only come, via statute, in 1924. Prior to that, they were considered either loyal to their respective tribes or feral denizens of what Hobbes calls a “state of nature.”

Support for  Messrs. Wurman and Barnett could be adduced from the 1866 Civil Rights Law, on which the 14th Amendment was based. That statute mandated that “persons born in the United States, and not subject to any foreign power” would be considered citizens. Another legal scholar, John Eastman, has written that the law “quite clearly exempted from the automatic citizenship provisions children of parents who owed allegiance to a foreign power … and particularly those who were in the U.S. illegally.”