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Epps on the Citizenship Clause

By Lawrence Solum

Garrett Epps (University of Baltimore School of Law) has posted The Citizenship Clause: A 'Legislative History' on SSRN. Here is the abstract:

Recently, scholars and lawmakers have suggested that the United States, or even states, cease to recognize citizenship of the American-born children of undocumented aliens. This would seem to be a direct contravention of the text of the Fourteenth Amendment, which begins by saying, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Conservative legal scholars have begun to advance scholarly arguments suggesting that the "subject to the jurisdiction thereof" language was "intended" by the Framers of the Amendment to require legal status and "full allegiance" to the United States to activate the citizenship guarantee. A review of the legislative debates during the framing of the Amendment reveals little evidence to support this contention. It indicates that the language was designed to exclude two and only two groups: (1) children of diplomats accredited to the United States and (2) members of Indian tribes who maintained quasi-sovereign status under federal Indian law as it existed in 1868. The contrary contention arises out of a partial and strained reading of the debates and an at best partial understanding of the intellectual background of the Amendment. That proponents of a narrower view propound their interpretation as embodying the "clear intent" of the Framers seems to contrary to the record as to raise questions about the very meaningfulness of "originalist" arguments in general.

Highly recommended!

Full post as published by Legal Theory Blog on June 22, 2010 (boomark / email).