Back in January, Michael Ramsey kindly announced my new draft article about illegal immigration and birthright citizenship. That led to many helpful comments. I’m happy to say that it’s now been revised, finalized, and placed in a law review:
Originalism, Illegal Immigration, and the Citizenship Clause, 15 Br. J. Am. Leg. Studies (2025).
I’m not a law professor, nor affiliated with any client or any organization interested in this issue. So this is just a short take (only 20 pages!) from a lawyer who finds this to be an interesting legal issue.
Mike and I have exchanged many blog posts about this issue over the years, and despite our differences he urged me to write this article. It’s not just another borderline law review article, in my opinion. Here’s the Table of Contents:
I. Introduction
II. The Citizenship Clause Includes an Implied Domicile Requirement
III. Applying Pre-1869 Domicile Law to Current Illegal Immigration
IV. Status of U.S. Territories and the District of Columbia Under the Clause
V. Purported Influence of France Upon the Citizenship Clause
VI. Conclusion
This article is also very relevant to the question of whether children born in the U.S. to temporary foreign visitors (who have entered the U.S. lawfully) are constitutionally entitled to birthright citizenship. If one accepts that the Clause includes an implied domicile requirement (which it does!), then that necessarily implies the answer to this question is “no,” or at least it substantially raises the bar for anyone who argues otherwise. Whatever the disagreements there might be between Mike Ramsey and me on this general subject, I agree with his assessment that, “It seems fair to say that the issue of temporary visitors remained somewhat unsettled in the mid-19th century.” That makes it very difficult to argue for an exception to the domicile requirement for foreign visitors, untethered to any constitutional text or any pre-1869 consensus. But Congress is always free to naturalize those children, either individually or categorically. The same is true for the children of unlicensed immigrants, a.k.a. illegal immigrants.
Posted at 8:18 AM