Trace Maddox (LSU Paul M. Hebert Law Center) has posted Birthright Citizenship Before the Fourteenth Amendment on SSRN. Here is the abstract:
After well over a century in relative obscurity, the doctrine of birthright citizenship has reentered the public consciousness in a big way. In one of the first acts of his second term, President Donald Trump issued an executive order asserting that the citizenship of children born in the United States is contingent upon the status of their parents. And although the Supreme Court has now stricken down that order, the window of discourse has nevertheless shifted: birthright citizenship endures today only at the expense of the 150-year-old consensus that the Fourteenth Amendment’s Citizenship Clause really does mean what it says.
Yet birthright citizenship as a principle of American constitutional law does not rest solely on the text of the Citizenship Clause. The doctrine that attributes citizenship to almost every child born on American soil has far deeper roots. In the century and a half since the adoption of the Fourteenth Amendment, these foundations have been largely omitted from standard accounts of American citizenship—but as that Amendment suffers once-unthinkable political assaults, it becomes imperative to remember that it is merely declaratory of principles that have always been fundamental to the American constitutional order.
This Article fills a gap left by contemporary Fourteenth-Amendment-centered scholarship by examining the common- and natural-law foundations of birthright citizenship as understood by the Founders, the Framers, and the courts of the early United States. It draws on primary sources from the late-eighteenth and early-nineteenth centuries to demonstrate that antebellum jurists applied a rule of birthright citizenship as a matter of fundamental law—in other words, that birthright citizenship has always been recognized as a feature of the American constitution.
In restoring this context, this Article returns an important chapter to the history of American identity. Moreover, it refutes the accounts of those—including fully four justices of the Supreme Court of the United States—who would portray birthright citizenship as a modern aberration rather than as an American tradition as deeply rooted as the Constitution itself.
Recommended!
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