Publication Title
Harvard Journal of Law and Public Policy
Volume
49
Page
315
Year
2026
Abstract
This Article makes a series of interventions into the existing literature on birthright citizenship. It makes three historical claims about the common law rule and its development. First, the Article centers the importance of parental status. The relevant status was not the citizenship of the parents, however, but whether they were under the protection of, and owed allegiance to, the sovereign. The common law rule therefore did not depend on descent, but the modern belief that the rule depended solely on place of birth is also mistaken. Second, it reveals through an examination of safe-conducts and English statutes from the twelfth through fourteenth centuries that the sovereign’s consent to an alien’s presence was necessary to extend the king’s protection. Third, it uncovers new evidence, including from treatises and military authorities, that suggest that by the American Civil War the applicability of the common law rule to children born of temporary sojourners was contested.
Whether the common law was incorporated by the Fourteenth Amendment’s jurisdictional phrase is another matter. The Article offers a historically grounded understanding of the Citizenship Clause: it required the parents of a child born to be subject to the complete municipal jurisdiction of the United States. If the law of nations applied, or if the law of nations provided for an exception to the exercise of a legislative, executive, or judicial jurisdiction over a foreigner within the territory, then any child born would not have been “subject to the jurisdiction” of the United States in the relevant sense. This law of nations theory allowed the drafters to incorporate the bulk of the common law because the sovereign’s protection was a precondition to the applicability of much of the sovereign’s municipal jurisdiction. Ambassadors and foreign armies, for example, were subject to the law of nations and not to the municipal law because they were not under the protection of, and owed no allegiance to, the sovereign. This theory also accounts for the exclusion of the Indian tribes, which were dependent nations under the law of nations with their own municipal laws.
This Article briefly concludes with tentative applications to the modern-day questions surrounding children born to temporary visitors or unlawfully present aliens. As suggested, there is evidence that protection was a precondition for jurisdiction, and permission was necessary for that protection, suggesting that unlawfully present aliens might fall outside the scope of the rule. Some contemporaneous commentators also thought that temporary visitors were not subject to the complete jurisdiction of the United States, although their theory as to why is unclear. This Article suggests ways in which temporary visitors may not have been fully subject to U.S. jurisdiction: to take but one example, Union authorities in Louisiana thought they could not conscript the children born in Louisiana to temporary visitors. The case both for and against a recent executive order purporting to deny citizenship to such children is therefore more complicated than either side has assumed.
Recommended Citation
Ilan Wurman, Jurisdiction and Citizenship, 49 Harv. J.L. & Pub. Pol'y 315 (2026), available at https://scholarship.law.umn.edu/faculty_articles/1192.
