Shawhan on Birthright Citizenship and the Civil Rights Act of 1866

'By Virtue of Being Born Here': Birthright Citizenship and the Civil Rights Act of 1866 has just been posted by Mark Shawhan.  The paper is related to this earlier piece by Shawhan, which appeared as a Comment in the Yale Law Journal.  Here's the abstract:

In recent years many commentators, politicians, and activists have argued that, as a historical matter, the Citizenship Clause of the Fourteenth Amendment does not make everyone born in the United States a citizen. Instead, their view is that its guarantee applies only where individual and state mutually consent to that individual’s citizenship, and that it does not extend to children of undocumented immigrants. As debates over immigration policy have become steadily more heated, the historically-based consensualist critique of Citizenship Clause doctrine has acquired widespread and growing political and popular support. But it is wrong.

Congressional Republicans drafted the Citizenship Clause of the Fourteenth Amendment, drawing heavily on its predecessor in the Civil Rights Act of 1866, to repudiate the consensualist citizenship approach of Dred Scott and similar decisions in favor of the traditional territorial approach of the common law. The Act and the Amendment were understood by their supporters and opponents to make citizens of individuals based on their birth within the territory, rather than political membership.

The Amendment’s requirement that individuals be born “subject to the jurisdiction” of the United States for citizenship was historically understood to exclude only those individuals, such as children of foreign diplomats and of members of Indian tribes, who were not subject at their birth to the full unmediated sovereign power of the United States. All other children are included within the Amendment’s guarantee of birthright citizenship, whatever the immigration status of their parents.