Kurt Lash (University of Richmond School of Law) has posted Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment's Citizenship Clause on SSRN. Here is the abstract:
The Fourteenth Amendment Citizenship Clause establishes two conditions for natural born citizenship. First, the person must be born in the United States. Second, the person must be born “subject to the jurisdiction” of the United States. The current debate over the original meaning of the so-called Birthright Citizenship Clause generally divides over how much weight to give each of these two requirements. Some scholars emphasize the role of birth on American soil, making it dispositive unless trumped by a limited and closed set of common law “exceptions.” Other scholars claim the second requirement of “jurisdiction” must be given equal and independent weight. For example, some scholars claim there must be independent evidence that one has become “subject” by way of mutual consent or positive allegiance to the American sovereign.
This essay proposes a more textually and historically justified way to understand and apply the dual requirements of birth citizenship: Prima facie citizenship. First articulated by Attorney General Edward Bates in his influential 1862 Report “On Citizenship,” prima facie citizenship treats birth in the United States as establishing a presumption of citizenship. That presumption may be overcome, however, by positive evidence that the child was born into a familial context of refused or counter-allegiance to the United States.
Although, the framers of the Fourteenth Amendment emphasized the need to establish a race-neutral definition of birth citizenship, they also understood the need to exclude those persons born into families that either refused allegiance or held a counter-allegiance to the United States. Accordingly, and after much debate, they drafted a clause requiring a person to be born in, and subject to the jurisdiction of, the United States. The first condition involves place, the second involves personal allegiance. As framer Lyman Trumbull explained, “what do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means.”
This essay investigates the antebellum history of natural born citizenship and the dual requirements of birth and allegiance. It then explores how antebellum ideas informed the drafting and public understanding of the Citizenship Clause of the Fourteenth Amendment. It concludes by constructing a prima facie theory of citizenship consistent with the text and its original understanding and applying that theory to different scenarios involving children born in the United States. Among other things, I conclude that the best reading and application of the Citizenship Clause makes citizens of children born to non-citizens legally present in the United States, but not those whose parents entered the country without legal authorization.
Highly recommended. This will require careful reeading.
