Calvin's Case and Birthright Citizenship

Abstract

Calvin’s Case established the birthright rule for English subjects. President Trump’s Executive Order 14160 asserts that the children of illegally present aliens are not natural born citizens because they are not “subject to the jurisdiction” of the United States. Certain scholars defending this executive order claim that the birthright rule in Calvin’s Case helps determine the meaning of “subject to the jurisdiction” in the Fourteenth Amendment’s Citizenship Clause. These scholars claim that the rule requires alien parents to be “in amity” to give birth to natural born subjects. They claim that illegally present parents do not have this status.

These readings of Calvin’s Case are wrong. Furthermore, a birthright rule requiring parental “amity” would still guarantee citizenship for the children of illegally present aliens. By probing the meanings of allegiance, natural-born subjecthood, and enemy alienage, this essay clarifies the extent to which Calvin’s Case and the common law can inform the meaning of the Citizenship Clause. Calvin’s Case supports the traditional understanding that individuals born in the United States are, absent extraordinary circumstances, citizens.

Keywords: Fourteenth Amendment, Constitutional Law, Legal History, Calvin's Case, Birthright Citizenship