Scholars Publish Originalist Defense of Birthright Citizenship

Overview

• Benjamin Keener and Keith E. Whittington have posted a legal article called Demystifying Birthright Citizenship that argues the Citizenship Clause reflects a longstanding common‑law rule that birth on U.S. territory makes someone a native‑born citizen.
• The authors use originalist methods and historical sources to reject narrower readings of the phrase “subject to the jurisdiction thereof” that would exclude children born to undocumented immigrants or temporary visitors.
• Their intervention comes as the courts are considering challenges tied to Executive Order 14160 and the case Trump v. Barbara, and the scholars say the Supreme Court’s forthcoming decision is unlikely to end academic and political dispute.
• Keener and Whittington trace the Clause to the 39th Congress and present evidence that lawmakers drafted it to repudiate Dred Scott and to entrench the territorial, allegiance‑based native‑birth rule found in Coke, Blackstone, and Kent.
• Coverage of the paper appears across outlets with different emphases—Reason and Legal History Blog foreground the historical and originalist case while the Washington Examiner outlines competing legal arguments—and the debate has direct consequences for who qualifies for citizenship, federal benefits, and immigration enforcement.