The Original Meaning of Birthright Citizenship

The Harvard Journal of Law and Public Policy has just published a symposium issue on the birthright citizenship debate. The focus of those contributions is on the original meaning of birthright citizenship in the United States and in the Fourteenth Amendment. Contributors include Ilan Wurman, Gerard Magliocca, and me. I am grateful to the heroic efforts of the editors at the journal for getting this issue ready and out in such a timely manner.

My piece — By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States — focuses on the content, scope, and qualifications of the common law rule of birthright citizenship as it developed in England and was carried into the United States and eventually embodied in the text of the Fourteenth Amendment. In doing so, it reaffirms the traditional view that birthright citizenship would extend to children of unauthorized aliens born in the United States and critiques revisionist theories old (Eastman) and new (Wurman, Lash).

From the introduction to the paper:

The conventional wisdom is right, and the Executive Order is wrong. Children born within the territory of the United States are natural-born citizens except under very narrow exceptions. Those historically recognized exceptions do not include the case of unauthorized aliens, and there is nothing about the logic of those exceptions that make them analogous to the modern situation of unauthorized aliens.

This Article reinforces the traditional view of the narrow exceptions to birthright citizenship by reconsidering the common law and statutory precursors that the constitutional language of the Fourteenth Amendment was understood to recognize and entrench. In particular, it pushes back against the new, revisionist view that alien parents must owe a robust form of allegiance to the United States and be members of the polity in order for their infants born within the United States to receive the benefit of birthright citizenship. This is a misreading—and indeed a reversal—of the common law rule that the Fourteenth Amendment embodies.

You can read the whole thing here.

The Supreme Court will hear oral arguments on Trump’s executive order excluding birthright citizenship to children of unauthorized aliens and temporary visitors on April 1.