That constitutional question is the subject of an interesting case pending in the D.C. Circuit — Tuaua v. United States. Here is information on the case. The U.S.’s position is also criticized in amicus briefs by a group of citizenship scholars (Sam Erman, Nathan Perl-Rosenthal, Holly Brewer, Linda Bosniak, Kristin Collins, Rose Cuisan-Villazor, Stella Elias, Linda Kerber, Bernie Meyler, Michael Ramsey, Lucy Salyer, Rogers Smith, and Charles Venator-Santiago) and by a group of constitutional history scholars (Christina Duffy Ponsa, Gary Lawson, Sandy Levinson, Bartholomew Sparrow, and Andrew Kent), among others. Michael Ramsey has a post about the former brief on the Originalism Blog.
A few recent D.C. Circuit decisions have featured an admirable willingness to look directly at the Constitution’s original meaning, even if that result is inconsistent with a contested modern practice (Noel Canning is the most prominent example). I wonder if Tuaua will continue the trend or break it.