At SCOTUSblog, Akhil Amar & VIkram Amar, Birthright citizenship: A note on foundlings and comments on four complementary amicus briefs. From the introduction:
Foundlings – babies born of unknown parentage – loomed large in the imagination of mid-19th century Americans, who dutifully read their Bibles and thought about baby Moses in a basket. Americans in the Civil War era also read novels both comic and dramatic, featuring eponymous foundlings such as Henry Fielding’s delightful Tom Jones and Charles Dickens’ virtuous Oliver Twist.
It is thus fitting and proper that several of the best briefs in the pending birthright-citizenship case, Trump v. Barbara, contain interesting discussions of foundlings, who featured prominently in conversations about a Civil War amendment – the 14th – that pivoted on the word “born.” Foundlings also featured prominently in a landmark 20th-century statute that aimed to build on 14th Amendment concepts of birthright citizenship.
In what follows we shall quote extensively from four notable Barbara briefs that highlight foundlings. Each brief illuminates a slightly different aspect of the foundling question. Together, these four briefs show that the foundling issue alone – above and beyond all other aspects of Barbara – is a sufficient basis on which to reject the Trump administration’s outlandish claim that, with small exceptions, a birthright citizen must be able to point to a citizen parent or a permanent-resident parent.
UPDATE: Andrew Hyman notes:
According to the leading treatise on domicile as of the 1860s, “Children of unknown parents must be considered as domiciled in the territory where they actually are….” See Robert Phillimore, 4 Commentaries Upon International Law 54-56 (1861).
Posted at 6:14 AM