Birthright Citizenship, the Common Law, and the 39th Congress

Ben Keener and I have posted a new paper on the original meaning of the Citizenship Clause of the Fourteenth Amendment. This one provides an extended analysis of the English common law origins of the native birth rule and of the debates in the 39th Congress over the meaning of the Citizenship Clause that they adopted as part of the Fourteenth Amendment. Ben has written about this issue before here, and I have written about it here and here. Although the Court will be ruling on this issue shortly, whatever the Court chooses to say will be unlikely to end the scholarly and political discussion. To do that, one must write a very long law review article.

The historical materials are unambiguous and unsurprising. As Coach Dennis Green once said, “They are who we thought they were.” The English rule simply meant that those born on territory governed by the English sovereign and subject to the sovereign’s rule were native-born subjects, and the Americans inherited that rule and understood it as such after the Revolution. When the 39th Congress sought to repudiate the Dred Scott decision and entrench a native-birth rule in the Constitution so that future political actors could not shrink or override the common-law rule and decide as a matter of policy which of the native-born they would prefer not to recognize as citizens, they drafted language that communicated the same, longstanding, common-law rule and they understood themselves to be doing so and said so explicitly and repeatedly.

From the conclusion:

The Citizenship Clause of the Fourteenth Amendment is neither mysterious nor indeterminate. It codifies a rule whose substance has been stable across four centuries of Anglo-American law: those born within the territorial reach of the sovereign’s actual governing authority are, by that fact alone, natural-born citizens. The twin conditions of native birth and subjection to the jurisdiction of the United States do the same work today that Coke’s “ligeance” and “obedience” did in 1608, that Blackstone’s “allegiance” and “dominions” did a century and a half later, and that Kent’s “jurisdiction” and “allegiance” did on the eve of the Civil War. The drafters of the Fourteenth Amendment did not invent a rule, disguise one, or leave one half-finished. They entrenched a rule already established in American practice and debased only by the aberrant Taney Court decision the Amendment was written to repudiate.

Read the whole thing here.

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