At Volokh Conspiracy, Evan Bernick (guest-blogging) has a two-part response to Kurt Lash's new article on birthright citizenship and unlawful immigrants:
From the introduction to the first part:
I expect Lash's paper to be the leading academic defense of the constitutional position articulated in President Trump's January 20, 2025 executive order, "Protecting the Meaning and Value of American Citizenship" ("EO"). The EO purports to end birthright citizenship for the children of people who have entered the country unlawfully ("unlawful entrants"), as well as the children of temporary visitors. Lash's status as one of the leading Fourteenth Amendment scholars in the country compels careful attention to his arguments.
What follows will be overwhelmingly critical. But I want to begin by giving credit where it is due. Lash prudently distances himself from two other kinds of pro-EO arguments that have been advanced in recent months and which I will engage in subsequent posts. The first argument turns on a supposed requirement that the parents of birthright citizens be "domiciled" in the United States. The second turns on a claimed need for reciprocal consent on the part of the parents and the polity: The parents, to allegiance to the sovereign; the sovereign, to the protection of the parents.
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Lash's core thesis is admirably straightforward. The Citizenship Clause establishes a strong presumption that any person born within the United States is a citizen of the United States. That presumption cannot be overcome by a child's race, a lack of reciprocal parent-polity consent, or even a parent's criminal conviction. It can, however, be overcome by a demonstration that the child's parent lacks sufficient allegiance to the United States. Parental allegiance determines the child's entitlement to birthright citizenship.
Most scholars of the Citizenship Clause agree that whether one is "subject to the jurisdiction of the United States" is somehow related to one's allegiance to the United States. The conventional wisdom holds that allegiance in the sense meant by Lyman Trumbull, Jacob Howard, and other leading Reconstruction Framers who used the term was a duty imposed by a sovereign power. Whether a person owed allegiance turned on the power that the state was entitled to exercise over them because (in political theory, anyway) it was offering protection for their natural rights. Roughly, if you're protected by the lawmaking, adjudicatory, and enforcement powers of the United States in the ordinary course of things, you're obligated to comply with those powers.
Lash disagrees. He asserts that allegiance "refers to one's loyalty to, or fidelity towards, a sovereign, in return for which the sovereign provides protection." Loyalty to the United States is presumed, but if there is no loyalty, there can be no allegiance. And again, Lash claims that the allegiance of parents is determinative of a child's citizenship status.
All the evidence Lash needs to see why what's wrong with his loyalty-based account is right in front of him, in his own sources. …
Posted at 6:08 AM