Benjamin Keener: Calvin's Case and Birthright Citizenship [Updated]Michael Ramsey

Benjamin Keener (University of Pennsylvania Carey Law School JD '26) has posted Calvin's Case and Birthright Citizenship (University of Pennsylvania Law Review Online, Vol. 174 (forthcoming)) (19 pages) on SSRN.  Here is the 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.

Agreed, this is how I read Calvin's Case.  It doesn't indicate any special meaning of allegiance other than under the sovereign's authority.

UPDATE - RELATED: Gregory Ablavsky (Stanford Law School) & Bethany Berger (University of Iowa College of Law) have posted Subject to the Jurisdiction Thereof: The Indian Law Context (NYU Law Review Online (forthcoming 2025)) (34 pages) on SSRN.  Here is the abstract:

Section 1 of the Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  Much of the debate over the meaning of this provision in the nineteenth century, especially what it meant to be “subject to the jurisdiction” of the United States, concerned the distinctive status of Native peoples—who were largely not birthright citizens even though born within the borders of United States. 

It is unsurprising, then, that the Trump Administration and others have seized on these precedents in their attempt to unsettle black-letter law on birthright citizenship.  But their arguments that this history demonstrates that jurisdiction meant something other than its ordinary meaning at the time—roughly, the power to make, decide, and enforce law—are anachronistic and wrong. They ignore the history of federal Indian law.

For most of the first century of the United States, the unique status of Native nations as quasi-foreign entities was understood to place these nations’ internal affairs beyond Congress’s legislative jurisdiction. By the 1860s, this understanding endured within federal law, but it confronted increasingly vocal challenges. The arguments over the Fourteenth Amendment, then, recapitulated this near century of debate over Native status. In crafting the citizenship clause, members of Congress largely agreed that jurisdiction meant the power to impose laws; where they heatedly disagreed was whether Native nations were, in fact, subject to that authority. Most concluded they were not, and in 1884, in Elk v. Wilkins, the Supreme Court affirmed the conclusion that Native nations’ quasi-foreign status excluded tribal citizens from birthright citizenship. 

But the “anomalous” and “peculiar” status of Native nations, in the words of the nineteenth-century Supreme Court, means that the law governing tribal citizens cannot and should not be analogized to the position of other communities—or at least any communities who lack a quasi-foreign sovereignty and territory outside most federal and state law but within the borders of the United States. Indeed, the Court in Wong Kim Ark expressly rejected the attempt to invoke Elk v. Wilkins to deny birthright citizenship to a Chinese man born in the U.S. to non-citizen parents, ruling that the decision “concerned only members of the Indian tribes within the United States.” The analogy has no more validity today than it did then, and the current Court should continue to reject it.

I agree with this assessment as well, although I think the more difficult category to explain is not "tribal citizens" (in the sense of people living in tribes recognized by and having treaty relations with the U.S. government), but natives who were not members of organized tribes.