Eugene Lucci (Court of Appeals of Ohio, 11th District) has posted Subject to the Jurisdiction Thereof: A Simulated Supreme Court Opinion on Birthright Citizenship in Trump v. Washington and Trump v. Barbara (forthcoming Northern Kentucky Law Review) on SSRN. Here is the abstract:
The Fourteenth Amendment’s Citizenship Clause provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” While the Clause is widely associated with a broad rule of territorial birthright citizenship, the Supreme Court has never directly addressed whether children born in the United States to parents who are present unlawfully satisfy the Clause’s jurisdiction requirement. The Court will confront that question for the first time in Trump v. Barbara, Nos. 25-364 & 25-365 (argued Apr. 1, 2026).
This Article argues that the Clause does not extend birthright citizenship to such children. It presents the analysis through an unconventional but analytically disciplined method: a complete simulated Supreme Court majority opinion resolving the constitutional question. The jurisdiction requirement — “subject to the jurisdiction thereof” — demands complete political allegiance arising from lawful domicile and the sovereign’s consent, not mere territorial presence. That reading is compelled by the canon against surplusage, the internal textual distinction between “subject to” and “within” in Section 1, the Clause’s domicile-dependent “reside” language, the convergent legislative history of the Civil Rights Act of 1866 and the Fourteenth Amendment, the historical doctrine of allegiance from Calvin’s Case through the founding era, and the Supreme Court’s own precedent in Elk v. Wilkins and United States v. Wong Kim Ark — the latter of which involved parents lawfully and permanently domiciled in the United States and left the question of unlawfully present parents unresolved. The Article answers the principal counterarguments and deploys concessions from Professor Michael D. Ramsey’s leading defense of the broad reading against the broad reading itself.
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