Great and concise article on the subject by Edward Erler. Shows how we rejected British common law on the matter (Blackstone's birthright subjectship), how citizenship is defined by law, how WKA erred, and how dual citizenship needs to be cancelled. Select quotes:

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Many believe that this policy is an explicit command of the Constitution, consistent with the British common law system. But this is simply not true.

The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms citizen or citizenship. The idea of birthright subjectship, as Blackstone readily admits, is derived from feudal law. It is the relation of master and servant; all who are born within the protection of the king owe perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.”

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America’s Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that “the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown

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So the common law—the feudal doctrine of perpetual allegiance—could not possibly serve as the ground of American (i.e., republican) citizenship.

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James Wilson, a signer of the Declaration of Independence and a member of the Constitutional Convention as well as a Supreme Court Justice, captured the essence of the matter when he remarked: “Under the Constitution of the United States there are citizens, but no subjects.” The transformation of subjects into citizens was the work of the Declaration and the Constitution. Both are premised on the idea that citizenship is based on the consent of the governed—not the accident of birth.

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Citizenship, of course, does not exist by nature. It is created by law

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Thus there are two components to American citizenship: birth or naturalization in the U.S. and being subject to the jurisdiction of the U.S.

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the meaning of “subject to the jurisdiction”: it meant owing exclusive allegiance to the U.S. and none to any other country.

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Howard in agreeing that the “law of the land” meant that “subject to the jurisdiction” connoted “complete jurisdiction”—in other words, not owing allegiance to anyone else.

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Thus “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or American courts. It means owing exclusive political allegiance to the U.S.

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In sum, what we today call birth right citizenship is a legacy of feudalism that was decisively rejected as the ground of American citizenship by the Fourteenth Amendment and the Expatriation Act of 1868

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Thus repeal of the current policy of birthright citizenship for the children of illegal aliens would not require a constitutional amendment.

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The same kind of confusion that has led us to accept birthright citizenship for the children of illegal aliens has led us to tolerate dual citizenship.

Imprimis

This post was edited on 4/12/26 at 6:11 pm