This Article makes a series of interventions into the existing literature on birthright citizenship. It makes three historical claims about the common law rule and its development. First, the Article centers the importance of parental status. The relevant status was not the citizenship of the parents, however, but whether they were under the protection of, and owed allegiance to, the sovereign. The common law rule therefore did not depend on descent, but the modern belief that the rule depended solely on place of birth is also mistaken. Second, it reveals through an examination of safe-conducts and English statutes from the twelfth through fourteenth centuries that the sovereign's consent to an alien's presence was necessary to extend the king's protection. Third, it uncovers new evidence, including from treatises and military authorities, that suggest that by the American Civil War the applicability of the common law rule to children born of temporary sojourners was contested. Whether the common law was incorporated by the Fourteenth Amendment's jurisdictional phrase is another matter. The Article offers a historically grounded understanding of the Citizenship Clause: it required the parents of a child born to be subject to the complete municipal jurisdiction of the United States. If the law of nations applied, or if the law of nations provided for an exception to the exercise of a legislative, executive, or judicial jurisdiction over a foreigner within the territory, then any child born would not have been "subject to the jurisdiction" of the United States in the relevant sense. This law of nations theory allowed the drafters to incorporate the bulk of the common law because the sovereign's protection was a precondition to the applicability of much of the sovereign's municipal jurisdiction. Ambassadors and foreign armies, for example, were subject to the law of nations and not to the municipal law because they were not under the protection of, and owed no allegiance to, the sovereign. This theory also accounts for the exclusion of the Indian tribes, which were dependent nations under the law of nations with their own municipal laws. This Article briefly concludes with tentative applications to the modernday questions surrounding children born to temporary visitors or unlawfully present aliens. As suggested, there is evidence that protection was a precondition for jurisdiction, and permission was necessary for that protection, suggesting that unlawfully present aliens might fall outside the scope of the rule. Some contemporaneous commentators also thought that temporary visitors were not subject to the complete jurisdiction of the United States, although their theory as to why is unclear. This Article suggests ways in which temporary visitors may not have been fully subject to U.S. jurisdiction: to take but one example, Union authorities in Louisiana thought they could not conscript the children born in Louisiana to temporary visitors. The case both for and against a recent executive order purporting to deny citizenship to such children is therefore more complicated than either side has assumed.
The Citizenship Clause of the Fourteenth Amendment entrenched birthright citizenship into the Constitution. Building on a recent revisionist scholarly literature, President Trump's Executive Orders, including Order 14,160, have asserted that the scope of birthright citizenship should be understood to exclude children born on American soil to parents who are either unauthorized to be in the country or authorized to be in the country for only a limited purpose and period. This asserted limitation of birthright citizenship is at odds with the original meaning of the Fourteenth Amendment and the antecedent common-law rule of nativity that the language of the Fourteenth Amendment embodied and declared.
This Note makes the case for congressional authority to regulate military operations through the formal adoption of statutory rules of engagement. Authority over the conduct of hostilities is traditionally thought to be within the exclusive province of the Commander in Chief. The constitutional text and historical evidence from the early republic, however, confirm that Congress may regulate in this space. Yet the practical exercise of such congressional power must be weighed against the President's independent duty to interpret and implement the law and Constitution. While often discussed in relation to judicial supremacy and broader questions of constitutional interpretation, this Note borrows the doctrine of presidential departmentalism and sketches how it constrains, but does not entirely hamstring, Congress's ability to legislate in this domain. Past Presidents have interpreted their Commander in Chief authority expansively, treating it as extending beyond battlefield command and implementation discretion (arguably the President's core, preclusive authority) to include broader governance of military operations. Historically, such interpretations have prevailed notwithstanding Congress's concurrent authority. This persistent pattern may suggest the Framers envisioned a constitutional structure that permits executive primacy in operational control within a system of shared war powers. Still, Congress retains meaningful constitutional mechanisms (including by the enactment of standing rules of engagement) through which it can influence the conduct of military operations.
On the first day of his second term as President of the United States, Donald Trump issued Executive Order No. 14,160, Protecting the Meaning and Value of American Citizenship. The Executive Order requires federal agencies, on a prospective basis, to decline to issue or to accept citizenship documents for the children of temporary visitors and illegal aliens born in the United States more than thirty days after the effective date. In initial proceedings, several judges voiced strong doubts that the Executive Order had any arguable legal basis. As the cases have progressed, however, the overwrought rhetoric from the early emergency hearings was replaced with a sober acknowledgment that the government presented credible legal authorities to support its view that the qualifying language of the Citizenship Clause—"subject to the jurisdiction thereof"—reflects requirements of parental allegiance and legal domicile in the United States and thereby excludes the children of illegal aliens and temporary visitors from automatic entitlement to citizenship by birth without the need for naturalization. Despite what some commentators have suggested, the Supreme Court has yet to address whether the Citizenship Clause extends citizenship by birth to children of parents illegally or temporarily in the country. This essay introduces a special issue of the Harvard Journal of Law and Public Policy that makes significant contributions to the ongoing debate, and it identifies further questions that deserve attention.
What a beautiful venue to give a speech about the Constitution! Thank you to the Georgetown Center for the Constitution for inviting me to give the 5th Thomas M. Cooley Judicial Lecture.1 My understanding is that many of you are law students or recent law-school graduates participating in Georgetown's originalism seminar. My guess is that most of you, if not all of you, are planning on doing a clerkship in either a federal or state court someday. I will start by speaking directly to you. Clerking is the best job you will have, bar none. You will learn as much in one year of clerking as you did in law school, or at least I did. So I decided to do the next best thing as a career, which is become a judge. Whatever you end up deciding to do, having clerked will make you better at it. Not to mention that you will make lifelong connections with your judge and their clerk network. Speaking of courts, that is exactly what I would like to discuss tonight. I have been studying them, serving them, or thinking about them my entire adult life. First as a federal clerk (three times), next as a federal-courts professor, then as a state-court judge, and now as a federal circuit judge. You might imagine I have a few thoughts on the subject. Having served in multiple roles, I want to help you understand how state and federal courts fit together, including pointing out a few places where we have deviated from the vision of our Founders. Tonight's talk is about maintaining judicial structure.
The rediscovery of a 150-year-old "lost clause" in America's foundational civil rights statute, 42 U.S.C. & sect; 1983, has captured the attention of judges, scholars, and even The New York Times. This clause appeared in the original text of Section 1983, which declared in 1871 that state actors "shall be liable" for rights violations, "any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding." This Notwithstanding Clause explicitly rejected extratextual defenses like "qualified immunity"-a doctrine created by the Supreme Court that has barred countless civil rights lawsuits. Yet three years after the statute's enactment, the clause was omitted when Congress compiled the federal laws into their first legal code. For a time, the clause was seemingly lost to history. Since its recent rediscovery, many have assumed the Notwithstanding Clause's omission altered Section 1983's meaning. It did not. Through an in-depth historical analysis, this Article explains what the clause means, why it was omitted from the text, and how its omission should affect our understanding of the law. Then, as now, Section 1983 displaces qualified immunity-its lost clause notwithstanding.
Anglo-American legislation since the fourteenth century has often authorized "popular" or "qui tam" enforcement, in which an uninjured "common informer" litigates to collect a forfeiture for violation of a statute. Popular enforcement has become considerably less common than in earlier centuries, but remains important because of the qui tam provisions of the federal False Claims Act (FCA). In Vermont Agency of Natural Resources v. United States ex rel. Stevens, the Supreme Court rejected an Article III standing challenge to qui tam litigation, concluding that the long history of popular enforcement means qui tam suits present cognizable "cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process." However, the Vermont Agency Court specifically reserved the question whether federal qui tam legislation might intrude on the President's Article 77 powers by authorizing individuals to litigate claims that should be pursued by the executive branch or to do so without proper appointment. Several Justices have expressed interest in addressing the Article II question in an appropriate case. If the Supreme Court does take up an Article II challenge to the FCA, one important question will be the original public meaning of Article 77's Take Care Clause. How would Americans in the framing era understand the Constitution's directive that the President "shall take Care that the Laws be faithfully executed"? Given that Article 77 vests "the executive Power" in the President, would they read the Take Care Clause conferring on the President exclusive authority to protect public rights through litigation, a power incompatible with the long English tradition of popular enforcement? If so, how does one explain the frequent inclusion of qui tam provisions in early Acts of Congress? This article highlights historical evidence that speaks directly to question of whether Americans in the ratification period would understand the Take Care Clause to preclude federal qui tam legislation. The Take Care Clause was not created afresh at the Constitutional Convention, but instead borrowed from pre-existing state constitutions. The Pennsylvania Constitution of 1776 and the New York and Vermont Constitutions of 1777 each vested executive power in specified government officials. Each state constitution included a Take Care Clause requiring executive officials to ensure faithful execution of the laws. In decade preceding the Constitutional Convention, the legislatures in three jurisdictions made extensive use of popular enforcement. This decade of experience under pre-existing constitutions in three states, including the state that hosted the Constitutional Convention, provides compelling evidence that Americans in the framing generation would not understand the inclusion of a Take Care Clause in Article II as incompatible with enactment of federal qui tam legislation. From the perspective of Americans in the framing era, allowing common informer to collect a forfeiture under a penal statute was not delegation of executive power. The framing generation viewed qui tam litigation as a species of private litigation, analogous in certain respects a lawsuit by an aggrieved party. Treatise author Sir William Hawkins explained that an informer suing for a forfeiture under a penal statute not need to allege individualized injury "because every Offence, for which such Action is brought, is supposed to be a general Grievance to every Body. " Sir William Blackstone explained that, by filing suit, the informer "made the popular action his own private action" and acquired a property interest in the forfeiture that was consummated by litigating the case judgment. This understanding of qui tam suits as private litigation, rather than government litigation, is confirmed by a public letter published in 1788 by Pennsylvania's part-time Attorney General William Bradford, responding to criticism directed at his representation of qui tam informers in his private practice. Bradford, who later became the second Attorney General of the United States, perceived no tension between litigating cases for the state in his governmental role and simultaneously representing qui tam informers in his capacity as a private attorney. Several Justices of the Pennsylvania Supreme Court supported Bradford's position, affirming that a qui tam action "is clearly the suit of the informer, and not of the State, until judgment." Bradford's position, supported by judicial and executive officials in Pennsylvania, confirms that qui tam legislation was understood as authorizing private litigation, rather than delegating executive authority to pursue claims for the government.
The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders' ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders' historical legacy-and why we might respect and indeed honor their contributions with open eyes.
