Keith E. Whittington (Yale University Law School) and James Heilpern (Georgetown University Law Center) have posted “Subject To The Jurisdiction” As Legal Text on SSRN. Here is the abstract:
The Citizenship Clause of the Fourteenth Amendment guarantees citizenship to all persons born in the United States and “subject to the jurisdiction thereof.” This Article challenges the allegiance-based model by applying an original public meaning framework to the Citizenship Clause. Drawing on mid-nineteenth-century legal and legislative sources, the Article demonstrates that “subject to the jurisdiction” was a conventional legal term of art signifying that an individual was within the governing authority and protection of the sovereign. The Article concludes that the original meaning of the Fourteenth Amendment reinforces a broad, territorial rule of birthright citizenship that is independent of parental allegiance or immigration status.
An important contribution. Highly recommended. Download it while it’s hot!
Lawrence Solum