Hanna on Colvin's Bus Protest

Mark Hanna has published From Claudette Colvin’s expectation to bus desegregation in Browder v Gayle in the American Journal of Legal History:

In March 1955, 15-year-old Claudette Colvin refused to move from her seat on a Montgomery bus, setting in motion a chain of proceedings that culminated in the Supreme Court’s summary affirmance in Gayle v Browder. This article reconstructs a legal history of rights formation that begins from Colvin’s persistent expectation of equal treatment under the law and traces how that expectation moved through a dense procedural field and complex socialmovement infrastructure before stabilizing as a Fourteenth Amendment right in the desegregation judgment. The article situates this account within rights-consciousness scholarship, treating rights as historically situated, bottom-up constructions, but specifies normative expectations—expectations that resist adaptation to disappointment and are legible in contemporaneous records—as its core unit of analysis. Using arrest records, trial papers, pleadings, hearing transcripts, judicial orders, organizational minutes, correspondence, interviews, and contemporary media reports, it tracks how Colvin’s expectation moved through juvenile proceedings, movement strategy, and federal procedure into a ruling that dismantled Montgomery’s bus-segregation regime and helped shape the constitutional law of public transport, while analysing the legal and procedural mechanics deployed to obstruct desegregation and the strategic choices that overcame them. It concludes by sketching a legal-history method for studying rights formation that keeps grassroots expectations and their procedural trajectories in view, and uses that vantage to clarify how movement strategy, judicial practice, and the emergence of constitutional rights are linked in struggles against racial discrimination in public space. While consistent with accounts that emphasize the interaction of litigation and protest, the article’s central focus is on how grassroots expectations of constitutional right at the ‘bottom’ of a legal order can, in rare but illuminating cases, come to be stabilized at its apex.

--Dan Ernst 

Keener and Whittington on Birthright Citizenship

Benjamin Keener, University of Pennsylvania Carey Law School, and Keith E. Whittington, 
Yale Law School, have posted Demystifying Birthright Citizenship:

Executive Order 14160 and the litigation it generated in Trump v. Barbara have thrust birthright citizenship back to the center of American constitutional debate. Critics of the traditional rule argue that the Fourteenth Amendment's “subject to the jurisdiction thereof” language implicitly restricts birthright citizenship in ways that exclude the American-born children of undocumented immigrants and temporary visitors. This Article clears the brush. It demystifies birthright citizenship by demonstrating that the Citizenship Clause embodies a single, coherent rule with deep roots in the common law—one that is neither riddled with ad hoc exceptions nor susceptible to the narrowing constructions its modern critics advance.

Working from an originalist methodology, this Article reconstructs the traditional rule and systematically rejects principal arguments for a more restrictive reading. Part I begins with a note on methods and how we believe an originalist analysis of the Citizenship Clause should proceed. Part II lays out the original meaning of the birthright citizenship rule and the terms of the Fourteenth Amendment that constitutionalized that rule. We then canvass the evidence in support of a more restrictive reading of the rule. Parts III and IV examine the argument that only those who have been invited into the country and are present by the country’s consent are subject to its jurisdiction. Part V examines the argument that only those who have the requisite allegiance to the country are subject to its jurisdiction. None finds sufficient support in the original meaning of the text. 

--Dan Ernst 

Upham's "Taking American Citizenship Seriously"

David R. Upham, St. Thomas University College of Law, has published Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment (Bloomsbury)

In this ambitious volume, Professor David R. Upham offers a comprehensive account of the original understanding of the Fourteenth Amendment, shedding new light on its often-overlooked Privileges or Immunities Clause. Drawing on a close textual reading as well as a wide range of primary sources—some newly discovered—Upham argues that the framers intended the amendment as a measure designed to strengthen existing constitutional protections for the rights of both human personhood and American citizenship. Upham contends that the amendment secures for all individuals the basic rights to life, liberty, and property through guarantees of due process and equal protection, while also reaffirming the birthright principle that grants citizenship to nearly all born on U.S. soil. Moreover, the Fourteenth Amendment safeguards longstanding privileges and immunities of citizenship, including the rights to travel, engage in commerce, speak freely, bear arms, and enjoy protection from racial discrimination and other forms of civic exclusion. By recovering the Amendment’s original meaning, this book reshapes our understanding of constitutional rights and citizenship, with far-reaching implications for contemporary legal and political debates. 

--Dan Ernst

Milligan on the Affirmative Duty of Racial Repair

Joy Milligan, University of California, Berkeley Law School, has posted The Constitution of Racial Repair: A Reconstructed History, which is forthcoming in the Iowa Law Review:

If affirmative action is dead, we should remember it accurately.

Dominant narratives claim that bureaucrats invented affirmative action in the 1970s as a policy of voluntary racial preferences in jobs and university admissions, undermining merit and provoking long-running conflict with the Constitution. That account is misleading, distorting our grasp of the nation’s racial history and the Constitution itself.

This Article offers a new, more complete constitutional history. Affirmative action was once constitutionally required, consisted of far more than preferences, and represented the Supreme Court’s own best interpretation of Brown v. Board of Education. The “positive theory” of Equal Protection required government to repair the past century’s worth of constitutional violations under Jim Crow, using a broad range of race-conscious and race-neutral measures. Lower courts and agencies applied the mandate beyond schools, to the many public institutions throughout the North and South in which government had imposed segregation. However, an opposing “negative theory” of Equal Protection persisted, which required only government inaction and claimed that any remedial steps violated white people’s freedoms or material interests. Over time, the Court increasingly sided with the negative theory, diluting the Constitution’s remedial requirements and fragmenting Equal Protection jurisprudence. The very concept of an affirmative duty to remedy the nation’s unconstitutional past dissipated.

Forgetting affirmative action’s true history biases our judgments of the nation’s present, its past, and the Constitution. As the modern proponents of the “negative theory” of Equal Protection attempt to halt all efforts at racial equality, it is crucial to recover the Constitution’s prior meanings—and imagine alternative futures.

--Dan Ernst 

Solomine and Brodersen on Goesaert v. Cleary

Michael E. Solimine, University of Cincinnati College of Law, and Michelle Brodersen, a 2025 graduate of the University of Cincinnati College of Law, have published Bartender Rescue: Sex Discrimination, Nepotism, and the Legacy of Goesaert v. Cleary in the Penn State Law Review:

In 1948, the United States Supreme Court in Goesaert v. Cleary upheld the constitutionality of a Michigan statute which prohibited women from serving as bartenders. It was one of a series of decisions which employed highly deferential rational basis scrutiny to uphold laws that discriminated based on sex. Those decisions came to constitute an “anti-canon” of highly criticized cases, and they were eventually overruled in a series of decisions by the Burger Court, which adopted a more intensive judicial scrutiny for gender discrimination. The change was famously the result of concerted legal mobilization led by then-Professor Ruth Bader Ginsburg and other lawyers and activists.

There is extensive literature addressing and analyzing the legal and social trajectory of Goesaert. This Article contributes to this literature by focusing on two underappreciated aspects of Goesaert and its legacy. One factor is nepotism: the Michigan statute, and similar laws in other states, permitted spouses or daughters of male bar owners to serve as bartenders. This arguably made Goesaert at least a closer case, since the exception diluted the charge of sex discrimination. Nepotism in employment allowed some women to work in jobs otherwise reserved for men, and the practice has long had a fraught relationship with the promotion of gender equity in employment.

The other factor is the practical effect of Goesaert. By the mid-1970s, the Supreme Court was expressly repudiating the doctrinal analysis of that decision. But well before that, other legal and societal developments had undermined the holding of Goesaert and allowed women to serve as bartenders. This development came about prior to the rise of Goesaert to anti-canonical status through, among other things, the passage of Title VII of the 1964 Civil Rights Act, and state court cases relying on state antidiscrimination laws.

Thus, the legacy of Goesaert is a richer and more complicated one, and sheds light on a decision that demands greater attention than a rote citation to a now discarded precedent.

--Dan Ernst 

Pope on Class and the Original Meanings of the 13th and 14th Amendments

James Gray Pope, Rutgers Law School, has posted Economic Class and the Original Meanings of the U.S. Thirteenth and Fourteenth Amendments:

This article suggests that present-day judicial interpretations of the U.S. Thirteenth and Fourteenth Amendments depart sharply from their original meanings on questions of class power. I propose that the concept of "slavery to society," hitherto largely ignored, lay at the heart of the framers' thinking about class and race. By late 1865, leading Republicans held that the Thirteenth Amendment directly banned not only chattel slavery and physically or legally coerced labor (its full scope according to contemporaneous Democrats and most present-day courts), but also slavery to society. Unlike chattel slavery, which could be eliminated by conferring the freedom of contract, slavery to society operated through the formal freedom of contract, tilting the background rules and customs governing market relations to enable a ruling caste or class to dominate and exploit a subordinate caste or class. With this in mind, the Republicans condemned both race-specific and facially race-neutral labor laws that, while respecting the formal freedom of contract, enabled capitalists to inflict on laborers a form of slavery or involuntary servitude. Concerning the Fourteenth Amendment, I propose that the Republicans' support for maximum hours laws during the two years between that Amendment's proposal and ratification indicates that a vast chasm separated their concept of labor freedom from the laissez-faire version enforced by American courts during the so-called Lochner Era.

--Dan Ernst 

Siegel & Ziegler, "Dismantling Equality Rights Through 'Biological-Sex' Talk"

Reva B. Siegel (Yale Law School) and Mary Ziegler (University of California, Davis) have posted Dismantling Equality Rights Through "Biological-Sex" Talk, which is forthcoming in Volume 105 of the Texas Law Review. The abstract:

In rejecting the sex-discrimination claims of transgender claimants in United States v. Skrmetti (2025), the Supreme Court introduced a new term for sex into equal protection law: “biological sex.” The Court made clear its view that laws recognizing biological-sex differences warrant judicial deference. Claims on biological sex also appear in the legislation and briefing of West Virginia v. B.P.J. and Little v. Hecox, cases challenging bans on transgender athletes’ participation in girls’ teams under the Constitution and Title IX this Term.

Biological sex is a movement signature—the fingerprint of advocates who are supplying the Supreme Court with resources for the stealth overruling of United States v. Virginia (1996), Justice Ginsburg’s opinion for the Court explaining the Constitution’s guarantees against sex discrimination (which judges apply in cases of discrimination on the basis of sexual orientation and gender identity, as well). We trace the usage of biological sex to the declarations, bills, and briefs of faith-identified social conservatives who mobilized against LGBT victories in Obergefell v. Hodges and Bostock v. Clayton County and under Title IX. Represented by advocates such as Alliance Defending Freedom (ADF) and Heritage Foundation, these Americans are now seeking reversal of constitutional and civil rights of other Americans as contrary to nature and divine command.

Conflict over transgender rights is tied to conflict over sexual orientation and gender roles in overt and subterranean ways, as this Article shows. The idiom of biological sex draws upon physiological naturalism—traditions of reasoning from the body—that courts long employed when deferring to laws enforcing gender roles before the rise of sex equality law. 

By following talk of biological sex in state statutes and lower-court cases, we show that the movement is providing resources for the stealth overruling of Virginia as the decision reaches its thirtieth anniversary. Biological sex directs judges to defer to the judgments of the political branches rather than to scrutinize sex-based state action for sex-role stereotyping—a code associating sex difference and judicial deference that revives in contemporary idiom the very traditions of reasoning from the body that United States v. Virginia rejected. 

Read on here.

-- Karen Tani 

Tolson's "In Congress We Trust?"

Forthcoming from the Cambridge University Press: In Congress We Trust? Enforcing Voting Rights from the Founding to the Jim Crow Era by Franita Tolson, Dean of the University of Southern California Gould School of Law.  It will appear in the series Cambridge Studies on Civil Rights and Civil Liberties:

This book reveals how Congress quietly shaped American elections across more than a century of constitutional development. Far from a passive observer, Congress used its authority to influence key controversies – from the expansion of slavery in new territories to the reconstruction of the post-Civil War electorate. Congress exercised power under the Elections Clause, the Guarantee Clause, and later, the Fourteenth and Fifteenth Amendments, to combat voter suppression, reimagine representation, and determine who could (and could not) participate in American democracy. Even as Jim Crow laws disenfranchised millions, Congress continued to review and sometimes overturn the elections of its own members, refusing to cede complete control to the states. In doing so, Congress routinely subordinated federalism to politics. In Congress We Trust? provides a new perspective on who truly governs our system of elections by showing that federal authority has been broad, lasting, and decisive.

--Dan Ernst

Weekend Roundup

• Over at JOTWELL, we've noticed several reviews of interest: Maya Manian (American University Washington College of Law) wrote about Aziza Ahmed's Risk and Resistance: How Feminists Transformed the Law and Science of AIDS (2025); Martha Ertman (University of Maryland Francis King Carey School of Law) reviewed Dorothy Brown, Getting to Reparations: How Building a Different America Requires a Reckoning with Our Past (2026); Jedidiah Kroncke (University of Hong Kong) spotlighted María E. Montoya's A Workplace of Their Own: Rockefeller, Roche, and Labor's Battle Over Industrial Democracy (2026). 

• The California Law Review's podcast has posted an episode on Michael Banerjee's "What Harvard’s Lawsuit Should Have Said" (published in the journal's online companion in August 2025).

• On the history-of-higher-ed theme, Banerjee also alerted us to this interesting Portland Press Herald article, on "How Maine’s elite private colleges sold Wabanaki land to bankroll early construction."  

• Vicki Jackson, HLS, delivered the  2026 Malyi Lecture at the University of Chicago Law School on “Knowledge Institutions and Constitutional Democracy.”   

• Jack Rakove will speak on Theory of Constitutional Failure: The American Case at Notre Dame Law on Friday, April 24, 2026, from 2:00 pm - 3:00 pm.

• Congratulations to Kunal Parker, Miami Law, on his selection as Beatrice Webb Visiting Professor at the London School of Economics! 

• And congratulations to Edward J. Balleisen, the new Provost of George Washington University! (GW Today)

• Nathan Dorn on Lodovico Carerio: Heresy, Lawbooks, and the Inquisition in the Kingdom of Naples (In Custodia Legis).   

• Haris A. Durrani, a Prize Fellow in Economics, History, and Politics at Harvard University, has published Engineering the Law: The Complicated Legal History of a Satellite in the American Historical Association's Perspectives on History.

• "The 1874 Arkansas Constitution and records from the convention that produced it are now available online through a collaboration between the University of Arkansas Libraries and the Quill Project at the University of Oxford" (Arkansas News) 

• Lawbook Exchange's April catalogue of Scholarly Law and Legal History.     

• The National Constitution Center has announced the opening on May 15 of "Governing the Nation, a new permanent gallery exploring the Constitution’s system of separated powers."  Its development was guided by "a distinguished scholarly advisory board representing leading universities and research institutions, ensuring a rigorous and balanced exploration of the separation of powers and federalism," including H. W. Brands, Cristina Rodríguez, Yuval Levin, Michael Klarman, Gail Heriot, and Ilan Wurman.

• Deborah Rosen reviews Andrew Fede's A Degraded Caste of Society in the Journal of Southern History.

• That E.O. on the PRA:  The American Historical Association and American Oversight file suit (CBS News).  The Trump Administration Is Trying to Erase Its Own History (Atlantic Daily).  Joyce Vance with the court filing (Civil Discourse).  The AHA's notice of the lawsuit.

• More on Birthright Citizenship: Steve Vladeck, Georgetown Law, on the "pitched battle within the legal academy over the fairly transparent efforts of a small cohort of right-wing law professors to provide a fig leaf of historical support for the Trump administration’s legally and morally odious position in the birthright citizenship case" (One First). Philip Hamburger, Columbia Law, on Allegiance, Birthright, and Citizenship (Law & Liberty).  For a brief time only, you may read, open access, the introduction to Anna O. Law's Migration and the Origins of American Citizenship, here.

• ICYMI:  In the National Constitution Center's series, "Constitutional Voices": W.E.B Du Bois and Elizabeth Cady Stanton.  Kevin Kruse rethinks the Civil Rights Movement (Campaign Trails).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Hamilton's "Nothing Less Than Equality"

Tikia K. Hamilton, Loyola University Chicago, has published Nothing Less Than Equality: The Battle over Segregated Education in the Nation’s Capital (University of Chicago Press):

The landmark Brown v. Board of Education case, which barred racial segregation in American public schools, wasn’t the only path for Black parents, teachers, and activists who sought equality of educational opportunity. Some believed that the solution to inequality lay in pressing the federal government to live up to the Jim Crow doctrine of “separate but equal” by providing more resources to Black schools. And for a time, this seemed true in Washington, DC, where Black activists leveraged their status as residents of the nation’s capital to advocate on behalf of Black education. However, disappointments with the “separate but equal” strategy and a sea change in activism led to an embrace of integration.
 
In Nothing Less Than Equality, Tikia K. Hamilton reveals the rich and complex history of educational activism in Washington prior to Brown v. Board of Education, illuminating complex dynamics that provide a counterpoint and backdrop to the landmark Supreme Court case. Hamilton thoroughly examines the multipronged strategies employed by parents, teachers, attorneys, and activists to democratize education, demonstrating that there was no linear path to Brown. 

--Dan Ernst 

Weekend Roundup

• An alarming opinion of the Office of Legal Counsel of the US Department of Justice advising White House Counsel that the Presidential Records Act is unconstitutional.  WaPo's story is here.

• 
  Having written about two thirds of a history of a law school, word of a new contribution to the genre always intrigues me.  Here's a notice of Legal Education at the University of Virginia: Tradition and Transformation (University of Virginia Press).  DRE

• In the American Prospect: Felicia Kornbluh (University of Vermont) writes about the Supreme Court's recent decision in Chiles v. Salazar (involving a Colorado ban on "conversion therapy"). The piece also quotes legal historian Marie-Amélie George (Wake Forest University Law School). 

• Via Brian Rosenwald: "Made by History" has a new home. Going forward, it will partner with the Philadelphia Inquirer. New pitch email: madebyhistory@inquirer.com.  

• On Friday, April 10, Alejandro de la Fuente, Harvard University, will deliver the sixteenth annual Presidential Lecture at Tufts University on Slavery, Freedom, Race, and the Law in the Americas.  The lecture will be based on his and Ariela J. Gross’s book, Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana (THR).

• Over at Divided Argument, William Baude hosts a roundtable with Christian Burset, Jonathan Green, and Ryan Snyder on their recent articles, which Baude describes as some of the best contributions to a "recent round of scholarship on history and tradition in legal interpretation."    

• And over at Modern American History, Sarah Seo hosts a roundtable of historians to discuss  "the benefits of and challenges to translating historical scholarship for a legal audience."  With Laura Edwards, Jennifer Mittelstadt, Samuel Erman, Nathan Perl-Rosenthal, Maggie Blackhawk and Ned Blackhawk.

• G. Edward White discovers who pranked the U.S. Supreme Court "by filing a phony cert petition challenging an absurd DC noise ordinance" (Oyez).

• That symposium over at Balkinization on Stephen Skowronek's Adaptability Paradox continues, with, among other contributions, Jeremy Kessler's Material Foundations of American Constitutional Development. 

• The latest issue of the Journal of American History includes several articles of interest to legal historians, including One Person, One Vote? The Gap between Representative Equity and Mathematical Equality after Baker v. Carr, by Alma Steingart, which shows how "litigants, Supreme Court justices, judges, and mathematical experts struggled to align the theoretical concept of political representation with mathematical notions of equality" in the malapportionment cases of the 1960s. 

• The NYT review of Mark Peterson's The Making and Breaking of the American Constitution: A Thousand-Year History (Princeton University Press) and a blog post by the author.

• The April 2026 newsletter of the Historical Society of the District of Columbia Circuit is here. 

• More on Birthright Citizenship.  John Yoo says that it has a long historical precedent (AEI).   Kate Masur  "Fact-Checks President Trump’s Birthright Citizenship Order" (CBS Chicago).  John Mikhail on Jurisdiction, Domicile, and the Ratio Decidendi of Wong Kim Ark (Balkinization).  Yet another dispatch from the war between the law professors on the history of the citizenship clause.  (Courthouse News Service).  And has the distance between law professor Bluesky and NYT opinion page ever been shorter? 

• ICYMI: A new book on Sarah Keys Evans, "The Black Veteran Who Desegregated Interstate Buses" (Mother Jones).  Tom Lee on the Declaration of Independence at 250 (Fordham Law). A Century of Colonial Tariffs (LPE Project).  High school students explore Münster’s legal history (Universität Münster).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Dardini on the 14th Amendment, Human Rights, and American Samoa

Ross Dardani, Muhlenberg College, has published, open access, The Influence of Fourteenth Amendment Jurisprudence and the Universal Declaration of Human Rights in the U.S. Empire, in Law and History Review:

This article analyzes the influence of Fourteenth Amendment jurisprudence and the United Nation’s Universal Declaration of Human Rights (UDHR) during congressional debates in 1949 that focused on establishing a territorial government for American Samoa. In these hearings, naval leaders argued that Supreme Court decisions that had interpreted the Fourteenth Amendment as demanding colorblindness and others that established property ownership as a fundamental right, along with the creation of the UDHR, meant that Samoans might not be able to protect their land from further white-settler colonialism if Congress passed legislation establishing a civilian government in American Samoa. U.S. military leaders believed that the Court’s decisions in Buchanan versus Warley (1917) and Shelley versus Kraemer (1948), and the UDHR, could prohibit American Samoa from enforcing race-based land ownership restrictions if lawmakers extended citizenship, equal protection, or due process to American Samoa. Members of Congress, however, believed that the Court’s past rulings in the Insular Cases, models set in other unincorporated territories (e.g., the Philippines and Hawaii), and Federal Indian law established legal precedents that meant Samoans would be able to continue restricting land ownership on the basis of race if they became U.S. citizens and were governed by equal protection and due process. Samoan leaders demonstrated the unsettled nature of constitutional law in American politics by emphasizing that any congressional act that extended citizenship, equal protection, or due process to American Samoa would ultimately be reviewed and interpreted by the Court. For these Samoans, even if members of Congress were interpreting past Court precedents correctly, a future majority of justices could adopt a different understanding of what the extension of U.S. citizenship, equal protection, or due process meant for American Samoa by ruling that non-Samoans had fundamental constitutional rights to land ownership in American Samoa. This article thus helps explain how and why Samoan and naval leaders influenced U.S. lawmakers when Congress was considering legislation that would extend citizenship, equal protection, and due process protections to American Samoa in 1949. This legal history demonstrates how different interpretations of the Constitution, the UDHR, and fundamental rights influenced various actors within the context of the U.S. empire, illuminating the ambiguous nature of constitutional law in the U.S. unincorporated territories.

--Dan Ernst 

Whittington and Heilpern on "Subject to the Jurisdiction of"

Keith E. Whittington, Yale Law School, and James Heilpern, who is Counsel at Schaerr Jaffe, LLP, where he specializes in complex litigation and corpus linguistics, and also a Research Fellow at the Georgetown Center for the Constitution, has posted "Subject To The Jurisdiction" as Legal Text:

The Citizenship Clause of the Fourteenth Amendment guarantees citizenship to all persons born in the United States and "subject to the jurisdiction thereof." This Article challenges the allegiance-based model by applying an original public meaning framework to the Citizenship Clause. Drawing on mid-nineteenth-century legal and legislative sources, the Article demonstrates that "subject to the jurisdiction" was a conventional legal term of art signifying that an individual was within the governing authority and protection of the sovereign. The Article concludes that the original meaning of the Fourteenth Amendment reinforces a broad, territorial rule of birthright citizenship that is independent of parental allegiance or immigration status. 

--Dan Ernst

Lee on Birthright Citizenship and Residence

Thomas H. Lee, Fordham University School of Law, has posted The Citizenship Clause's Residence Requirement:

The debate about President Trump’s January 20, 2025 Executive Order denying automatic American citizenship to children born in the United States to unlawfully or temporarily present foreign parents is divided into two polar-opposite camps asserting that it’s wholly constitutional or wholly unconstitutional.  In a new academic paper, I make the case that the 1868 original meaning of the Fourteenth Amendment's Citizenship Clause supports a middle position: a child born in the United States to alien parents is automatically a citizen if the parents reside in the United States even if they entered unlawfully, but the child is not a citizen if the alien parents are in the United States as temporary sojourners, like tourists. This original, revisionist interpretation of the Citizenship Clause is faithful to the Clause’s text and original meaning and also consistent with the Constitution’s other citizenship-related provisions, relevant Supreme Court decisions, and the larger, evolving context of domestic and international citizenship controversies the Clause was ratified to address, while recovering an original meaning that sensibly speaks to modern realities.

--Dan Ernst

Lash Responds to Ramsey on Birthright Citizenship and Allegiance

Kurt Lash, University of Richmond School of Law, has posted The Allegiance Reading of the Citizenship Clause and Its Critics: A Response:

John A. Bingham (LC)

The Fourteenth Amendment establishes two requirements for natural born citizenship: First, one must be born in the United States. Second, one also must be born “subject to the jurisdiction” of the United States. In a prior article, I explained how the framers and ratifiers understood the latter text as requiring that one be born subject to the sovereign people of the United States in the sense of owing a primary allegiance to the United States. In a recent essay, Professor Michael Ramsey critiques the allegiance theory and argues that the text should be read to include any person born in the United States subject to its lawful or “sovereign authority.” 

Professor Ramsey’s reading is thoughtful but cannot be correct. Ramsey substitutes the phrase “under sovereign authority” for the actual text “subject to the jurisdiction” of the United States, and he invests it with a meaning based on common law instead of the actual understanding of the framers and ratifiers. The result is an interpretation held by congressional Democrats but expressly rejected by the Republican framers. Nor can Ramsey’s “subject to sovereign authority” theory account for the exclusion of the one category everyone involved insisted be excluded: children born to Native American parents. 

Most of all, Ramsey cannot explain away the abundant historical evidence supporting an 1866 allegiance-based understanding of natural born citizenship. In one of the most widely published speeches of the Thirty-Ninth Congress, and one that Ramsey does not mention, John Bingham explained that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen.” Both the 1866 Civil Rights Act and the Fourteenth Amendment communicated this same Republican theory of natural born citizenship.

--Dan Ernst 

Weekend Roundup

• The Asian Legal History Association has hosted its official launch in Hong Kong (The Standard).  The speech of the Secretary for Justice, Paul Lam, at the launch is here. Update: Donal Coffey was there, too.

• Ian Mansfield's review of the exhibition, Londoners on Trial: Crime, Courts and the Public 1244-1924, at the London Archives until February 25, 2027.

• From the Conversation: "The deaf blacksmith who married in 1576 – and the history of sign as a legal language."

• Over at JOTWELL: Blake Emerson (UCLA Law) has posted an admiring review of Nathaniel Donahue's "Officers at Common Law," which is forthcoming in the Yale Law Journal.   

• Ashley Everson on Pauli Murray, the Brown Decision, and the Struggle for Equal Rights (Black Perspectives).

• A notice of Akhil Reed Amar's Giannella lecture at Villanova on Born Equal: Remaking America’s Constitution, 1840–1920 (Villanovan). 

• Five Takeaways from conference on Richard Primus’s The Oldest Constitutional Question  (Michigan Law). 

• Now online: the website of the 14th Amendment Center for Law and Democracy at Howard Law School, led by Sherrilyn Ifill.

• ICYMI: Birthright Citizenship Edition.  Dahlia Lithwick spoke to Anna O. Law about Law's book, Migration and the Origins of American Citizenship (Amicus). Ilya Somin on Slavery and Birthright Citizenship (Lawfare).  Smita Ghosh on Lynch v. Clarke (1844), the birthright citizenship case you never heard of (Slate). Akhil and Vikram Amar and Jason Mazzone on why the text, history, and structure of a landmark 1952 statute doom Trump’s executive order (SCOTUSblog). 

• ICYMI: Orin S. Kerr on How AI Tools Can Help With Legal History Research (Volokh Conspiracy). "The Trump administration’s campaign to remove National Park Service exhibits that 'inappropriately disparage' historical figures" has bogged down (Politico).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Law's "Migration and the Origins of American Citizenship"

The official date is still about a week hence, but because the book is already getting noticed in social media, we’ll note now the imminent publication of Anna O. Law’s Migration and the Origins of American Citizenship: African Americans, Native Americans, and Immigrants (Oxford University Press):

Since the late nineteenth century, the US federal government has enjoyed exclusive authority to decide whether someone has the ability to enter and stay in US territory. But freedom of movement was not guaranteed in the British colonies or early US. By contrast, voluntary migrants were met with strict laws and policies created by colonies and states, which denied free mobility and settlement in their territories to unwanted populations.

Migration and the Origins of American Citizenship presents a story of constitutional development that traces the confluence of the logics of slavery and settler colonialism in early legal rulings and public policy about migration and citizenship. The book examines the division of labor between the national and state governments that endured for over a century, reasons why that arrangement changed in the late nineteenth century, and what the transformation meant for people subject to those regimes of control. Drawing into one study the migration policy histories of groups of people that are usually studied separately, and combining the methodologies of political science, history, and law, Anna O. Law reveals the unmistakable effects of slavery and Native American dispossession in modern US immigration policy.

--Dan Ernst 

Mikhail on Birthright Citizenship and Unwritten Constitutionalism

My Georgetown Law colleague John Mikhail has posted Birthright Citizenship, Unwritten Constitutionalism, and the Nature of the Union, which is forthcoming in the Yale Journal of Law & the Humanities:

Many of Jonathan Gienapp’s core arguments in his outstanding new book, Against Constitutional Originalism, are well-taken, and they represent important challenges to any theory that focuses unduly on the text of the Constitution at the expense of other, non-textual considerations. Yet readers familiar with the history of birthright citizenship might recognize problems lurking on the horizon. A useful way to appreciate the main problem is to recall how Roger Taney approached the topic of American citizenship in Dred Scott v. Sandford. According to Taney, the text of the Constitution could not resolve this foundational issue because it could not, on its own, specify what kind of federal union stood beneath it. Instead, what was required was a proper understanding of the nature of the political community that formed the "People of the United States” in the first place. Much like Gienapp does, Taney insisted that the Constitution’s meaning was shaped by the nature of the polity, and the nature of the polity could not be derived from the written instrument alone, but required an appeal to history, sociology, and political theory. Or as Taney put the point in a famous passage: “The words ‘people of the United States’ and ‘citizens’ are synonymous terms and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government, through their representatives. They are what we familiarly call ‘the sovereign people,’ and every citizen is one of this people and a constituent member of this sovereignty.”

So, do Jonathan Gienapp and Roger Taney see eye-to-eye when it comes to the need for constitutional interpreters to go beyond the text to theories of union and sovereignty? Is there a convergence here that might teach us something about the risks of appealing to concepts such as “social contract theory,” “unwritten constitutionalism,” and “the nature of the Union” as a counterpoint to originalism and the written Constitution? And what precisely are the implications of Against Constitutional Originalism—and of originalism itself—for the birthright citizenship debate? This invited essay on Gienapp's stimulating book does not seek to answer all of these questions directly, but to begin laying the groundwork for doing so by exploring two topics that bear on them: citizenship in the original Constitution, as interpreted in Dred Scott, and birthright citizenship, as defined in the Fourteenth Amendment and interpreted in Elk v. Wilkins.  Both of these cases involve race, racism, and unwritten constitutionalism, and both of them turn on tacit theories of union, sovereignty, and the American polity. After discussing these topics, the Essay concludes with a few additional reflections on the government's legal defenses of the president’s Executive Order on birthright citizenship.

--Dan Ernst 

Weekend Roundup

• 

  Ely Samuel Parker, seated at left (LC)

  Ely Samuel Parker, "a member of the Senecans," was admitted to the New York State Bar, 176 years after being denied entry on account of his race  (NYT).  

• John Fabian Witt (Yale Law School) has published an editorial in the New York Times: "The Idea That Once Held America Together Died in 2025." (The idea: procedural fairness/regularity.)

• Samuel Bray summarizes his and Drew Keane's book chapter, "Of Canon Law and Kings: The Legal Thought of James Ussher (1581-1656)" (Divided Argument).   

• "The American Historical Association (AHA), in collaboration with Citizens for Responsibility and Ethics in Washington (CREW), has filed an amicus brief in support of Harvard University’s lawsuit against the federal government over the university’s ability to host foreign scholars and students." Link. 

• Theda Skocpol in conversation with Edwin Amenta (Sociologica). 

• An impressive lineup of historical talks at the University of London's Institute of Historical Research. 

• Lawbook Exchange's  December 2025 (Part II) catalog of Scholarly Law and Legal History. 

• ICYMI: Damon Root on Mercy Otis Warren, "the Founding Mother Who Opposed the Constitution" (Reason).  Adam Serwer thinks "Conservatives Want the Antebellum Constitution Back" (The Atlantic).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Frost and Eason on Birthright Citizenship and Congressional Qualifications

Amanda Frost, University of Virginia School of Law, and her UVA law student, Emily Eason, have posted The Dog That Didn't Bark: Eligibility To Serve In Congress And The Original Understanding Of The Citizenship Clause, which appeared in Georgetown Law Journal Online, and is the subject of a New York Times column by Adam Liptak.  Here is the abstract:

Jefferson Davis Contemplates Hiram Revels (LC)

President Donald J. Trump's 2025 Executive Order restricting birthright citizenship has prompted new interest in the interpretation of the Fourteenth Amendment's Citizenship Clause. This Essay analyzes an overlooked source of the original understanding of that Clause: the meaning of "citizen" when determining whether members-elect are qualified to serve in Congress. The U.S. Constitution requires that every member of Congress be a U.S. citizen, and further provides that each House "shall be the judge" of members' qualifications. Anyone is permitted to challenge a member-elect's qualifications to serve, and hundreds of such challenges have been brought over U.S. history. Accordingly, challenges to members-elect's citizenship--as well as the absence of such challenges--shed light on the original understanding of the Citizenship Clause. 

Using a variety of archival sources, we have researched the ancestry of all 584 members of the Thirty-ninth (1865-67), Fortieth (1867-69), and Forty-first (1869-71) Congresses, and found more than a dozen whose citizenship would be suspect under President Trump's interpretation of the Citizenship Clause. Yet no one questioned these members' citizenship despite the contentious political environment that inspired frequent qualifications challenges on a variety of other grounds. This dog that didn't bark provides further evidence that the Trump administration's novel interpretation of the Citizenship Clause is inconsistent with the original understanding. 

We conclude with an observation based on long hours of tedious research: Determining the status of immigrants arriving in the early nineteenth century--an era with few immigration records and minimal enforcement of existing state-based restrictions on immigration--is often impossible, and always onerous. The difficulty of the task alone is evidence that no one at the time of ratification could have seriously thought that U.S. citizenship turned on such questions. 

--Dan Ernst