Homayoon Rafatijo has posted From Natural Allegiance to No Allegiance: The Erosion of the Citizenship Clause’s Original Meaning on SSRN. Here is the abstract:
The Fourteenth Amendment marks a constitutional watershed, dividing the history of the United States into a before and an after. With the Citizenship Clause, it fundamentally reconfigured the concept of United States citizenship from a secondary status derived from state citizenship to a primary status that controls it. In the aftermath of the Civil War, the Framers sought to anchor citizenship not in the shifting authority of the States, but in the allegiance each person owes directly to the United States, rather than the indirect and intermediate allegiance mediated through the States. In doing so, they made clear that the allegiance sufficient to confer natural-born citizenship is natural (i.e., permanent) allegiance, as opposed to the temporary or local allegiance that arises from mere presence. This Article argues that all three branches of the United States Government, each in its own way, contributed to a gradual but decisive departure from that original understanding of the Citizenship Clause, transforming it into a rule that requires no allegiance at all. That transformation culminated in Congress’s codification the Nationality Act of 1940. In exercising its plenary authority, Congress lawfully dispensed with the allegiance requirement, thereby conferring citizenship upon persons whom the Framers would not have understood to be citizens of the United States.
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