FedSoc Forums Birthright Citizenship in Context: Law, History, and Contemporary Debate
Feb 19, 2026
Ilan Wurman, a constitutional historian and law professor, explores common-law roots tying birthright to parental protection. Keith Whittington, a Yale constitutional scholar, examines originalist limits on who is subject to jurisdiction. They debate jurisdiction, parental protection, enforcement discretion, congressional power, and policy responses to birth tourism in a lively legal conversation.
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Common Law Relied On Parental Protection Not Mere Birth
- Birthright citizenship at common law depended on parental status, not sheer presence on soil.
- Ilan Wurman shows children needed parents 'under the sovereign's protection,' with ambassadors and occupying soldiers excluded.
Sovereign Permission Created Alien Protection Historically
- Medieval and early-modern practice tied an alien's protection to sovereign permission via safe conducts and statutes.
- Wurman documents hundreds of safe conducts and statutes (e.g., Edward III 1353) granting merchants the king's protection.
Jurisdiction Meant Access To Municipal Rights And Courts
- 'Subject to the jurisdiction' tied protection to access to municipal jurisdiction such as suing and being sued.
- Wurman cites War of 1812-era cases where lawful residence implied protection and capacity to sue and be sued.