Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law, has posted “Without Domicile or Allegiance: Gypsies and Birthright Citizenship,” which is forthcoming in Harvard Journal of Law and Public Policy:
This Essay argues that the invocations of gypsies (or Roma) during the debates on the Civil Rights Act of 1866 and the Citizenship Clause of the Fourteenth Amendment drew on Blackstone's discussion of them in his Commentaries and means that legal immigration status, domicile, and allegiance are not requirements for birth citizenship in the United States. The Roma were barred from entering Britain for centuries, but their native-born children were still considered subjects of the Crown. In 1866, Senator Edgar Cowan argued in Congress that birth citizenship should not apply to gypsies because, among other things, they "have no homes" and "no allegiance." He lost, even though they did paradigmatically lack homes or allegiance to any government. The Roma precedents from common law and from the original public meaning cut sharply against the legality of any effort to restrict birth citizenship.
--Dan Ernst
