Ilan Wurman (University of Minnesota Law School) has posted Jurisdiction and Citizenship: A Reply (101 Notre Dame Law Review Reflection __ (2026)) (23 pages) on SSRN. Here is the abstract:
Newton’s laws of physics work most of the time here on earth because of earth’s weak gravitational field and relatively slow velocity. But those laws do not explain every phenomenon of the observable universe. Most famously, they do not explain the orbit of Mercury. And so, we know that the true law of the universe, at least so far as we understand things, is the law of general relativity. That law explains both the orbit of Mercury and other otherwise inexplicable phenomena, as well as Newton’s laws, which are just an approximation of general relativity given the conditions here on earth. In By Birth Alone, Keith Whittington argues that the rule of birthright citizenship at common law was that mere birth on the sovereign’s soil conferred citizenship. He cites some sources that say so. But, as this short essay will show, stating the common-law rule in this way is much like reciting Newton’s laws. Such statements are sufficient to explain the rule as applied to most situations because they are good approximations given the parameters that usually exist. But it does not explain all observable phenomena (the historical data)—and particularly it does not explain the situation of ambassadors and invaders. One needs a theory of general relativity, which is to say, one needs a more precise rule. And that rule happens to have been birth on the sovereign’s soil to parents under the sovereign’s protection. That distinction makes all the difference and may have radical implications for the citizenship questions with which modern-day observers are confronted.
In Birthright Citizenship Reexamined [ed.: available here], Michael Ramsey addresses not the common law but the jurisdictional phrase of the Fourteenth Amendment’s Citizenship Clause. He argues that being subject to the jurisdiction of the United States means being subject to its legislative, executive, and judicial authority. True enough. Where Ramsey goes wrong, or so I shall argue, is in the application of that rule to modern-day questions. One might be subject to the criminal jurisdiction of the United States, but it does not follow one is completely subject to the jurisdiction of the United States. In particular, the common-law concept of protection was intimately connected to jurisdiction. If one came without the sovereign’s permission, one was not under the sovereign’s protection; and that meant, moreover, that one could not sue or be sued in the sovereign’s courts. The law of nations also seemed to provide rules restricting the exercise of jurisdiction over temporary sojourners to at least some degree.
This essay elaborates these points. First, it briefly summarizes the argument of my own long article on the question of birthright citizenship. Second, the essay responds to Professor Whittington’s main points, articulated in his article. The essay will then take the opportunity to respond to the intervention of Gerard Magliocca, who has written a related essay on the status of the Roma people (also known as Gypsies) and the implications for birthright citizenship. Finally, the essay responds to Professor Ramsey. In short, this essay reaffirms the conclusions of my earlier article: that the common-law rule, when precisely stated, was birth on the sovereign’s soil to parents under the sovereign’s protection; that protection required the sovereign’s permission to be in the realm; and that protection was a precondition to jurisdiction, or at least to a complete jurisdiction.
As with Professor Wurman’s initial article on the subject, I agree with a good bit of this but disagree on the core conclusion. It’s simply not the case that “protection [meaning permission to be in sovereign territory] was a precondition to jurisdiction.” Sovereign authority was a precondition to (or rather, another name for) jurisdiction, and no one doubts that the territorial sovereign had authority over those who entered the territory without permission (unless, of course, they had an exemption from sovereign authority on some other ground).
Further, to the extent Professor Wurman now makes sovereign consent the touchstone of his argument (it was much less so in his initial article), that would seem then to include lawful temporary visitors — which his initial article excluded.
Posted at 6:06 AM