Allegiance, Treason, and the Natural Born

Abstract

This Article contributes to current debates over birthright nationality by utilizing previously overlooked authorities and showing the longstanding link between the common law rule of the natural born and the law of treason.  It demonstrates that the common law rule imposes nationality on children born in the king’s dominions regardless of whether their parents are lawfully present or have a right to remain, as Parliament confirmed more than forty years ago.  It applies the rule to the unusual cases of children born to spies, interned alien enemy civilians, prisoners of war, subjects and aliens caught in enemy occupied territory, and outlaws.  Finally, it explains the rule’s continuing application in U.S. constitutional law.  The Fourteenth Amendment does not occupy the field.

The Article sets out the two formulations of the common law rule found in Coke’s report of the 1608 English decision in Calvin’s Case.  The first involves the king’s relationship with the child:  any child born in the king’s dominions under his power and protection is natural born.  The second involves the king’s relationship with the child’s parents:  any child born in the dominions to parents owing ligeance to the king is natural born.  Although Coke’s report cites the filial version of the rule as the ground for the decision in Calvin’s Case, both reach the same result in the unusual cases—as they should, given that they appear together in Coke’s report.

The Article then shows the historic connection of the common law rule with the law of treason.  The same obligations of ligeance that make children natural born also make one liable for treason, including treason liability for transitory sojourning aliens and alien enemies other than invaders.  The Article documents parallels in U.S. constitutional law, including the constitutional law of treason, and critiques contemporary interpretations by James C. Ho, John C. Eastman, Randy E. Barnett, and Ilan Wurman. 

The Article also examines the United Kingdom’s abrogation of the common law rule and its implications for U.S. nationality law.  Three hundred seventy-five years after Calvin’s Case, Parliament confirmed that the common law rule applies regardless of parents’ legal status and then radically changed the law, restricting citizenship by birth to children having either a citizen parent or a parent who is lawfully present and ordinarily resident without any legal restriction on how long they can remain.

Some assert that the use of the term “subject to the jurisdiction” in the Citizenship Clause of the Fourteenth Amendment abrogated the common law rule in the United States by imposing the very same restrictions that Parliament did more than one hundred years later.  That is shockingly anachronistic and unconvincing.  Absent a new amendment, the common law rule will continue to inform the constitutional law of U.S. nationality without regard to parents’ legal status.

Keywords: Citizenship, Natural born subject, Natural born citizen, Treason, Legal theory, Legal history, Constitutional law, Fourteenth Amendment, Citizenship Clause, Nationality, Comparative law, Aliens, Alienage, Common law, Natural law, Allegiance, Ligeance, Natural ligeance, Local ligeance, Natural allegiance, Local allegiance, Calvin's Case, Internees, Prisoners of war, Outlaws