Kurt Lash (University of Richmond School of Law) has posted The Allegiance Reading of the Citizenship Clause and Its Critics: A Response on SSRN. Here is the abstract:
The Fourteenth Amendment establishes two requirements for natural born citizenship: First, one must be born in the United States. Second, one also must be born “subject to the jurisdiction” of the United States. In a prior article, I explained how the framers and ratifiers understood the latter text as requiring that one be born subject to the sovereign people of the United States in the sense of owing a primary allegiance to the United States. In a recent essay, Professor Michael Ramsey critiques the allegiance theory and argues that the text should be read to include any person born in the United States subject to its lawful or “sovereign authority.”
Professor Ramsey’s reading is thoughtful but cannot be correct. Ramsey substitutes the phrase “under sovereign authority” for the actual text “subject to the jurisdiction” of the United States, and he invests it with a meaning based on common law instead of the actual understanding of the framers and ratifiers. The result is an interpretation held by congressional Democrats but expressly rejected by the Republican framers. Nor can Ramsey’s “subject to sovereign authority” theory account for the exclusion of the one category everyone involved insisted be excluded: children born to Native American parents.
Most of all, Ramsey cannot explain away the abundant historical evidence supporting an 1866 allegiance-based understanding of natural born citizenship. In one of the most widely published speeches of the Thirty-Ninth Congress, and one that Ramsey does not mention, John Bingham explained that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen.” Both the 1866 Civil Rights Act and the Fourteenth Amendment communicated this same Republican theory of natural born citizenship.
Highly recommended.
Some of the reactions that were posted on X or Bluesky to a recent post providing the abstract to another paper on this topic were deeply disappointing and problematic. Some of the most vituperative posts were from non-scholars who were unfamiliar with the literature, the original sources, and the author. Others were from legal academics but displayed a very uncharitable attitude towards scholarship with which the poster disagreed.
My view of the role of Legal Theory Blog is premised on the idea that scholarship ought to be viewed as a search for truth and that scholarly debate should be civil and charitable. Attempts to shame or silence scholarship are always problematic and rarely justified. Statements to the effect that the author of a piece is insincere without any evidence should be condemned and have no place in responsible scholarship. What should matter is what Jürgen Habermas called “the unforced force of the better argument.”
My recommendations of scholarship are not expressions of agreement or disagreement with the claims made by the pieces I recommend. For example, I frequently recommend scholarship that advances interesting criticisms of originalism–even when I believe that the criticism is based on a misunderstanding of originalist theory or rests in part on arguments that cannot withstand serious scrutiny.
My practice on X and Bluesky is to block block those who make personal attacks, and I will continue to do so.