Admittedly, the paper might be a bit long but sometimes it takes some explanation & evidence to clarify things. 13/13

The 39th Cong GOP understood that if governing politicians could exclude native-born children from citizenship b/c their parents were regarded as unfit to be members of the political community the consequences would be grim. They rejected such a rule of citizenship. 12/

The 39th Cong GOP did care about loyalty, but citizenship was not where they attempted to take that into account. When talking about citizenship, they were universalistic & absolute. When talking about voting & political rights, they wanted to reward the loyal & punish the disloyal. 11/

As Sen. Trumbull, the author of the 1866 Civil Rts Act citizenship clause, admitted, the 14th Amend version was "better," less clumsy at communicating the rule that the common law embodied & that both statute and amendment were meant to declare. The rule is the same, but the new text is clearer. 10/

The members of the 39th Congress sometimes argued about who was subject to the law, and therefore owed allegiance to it (such as members of Indian tribes), but there was no disagreement about the logic of the rule at play, just about the facts of its application. 9/

To ask whether someone has the requisite allegiance in order to know whether that person is subject to the jurisdiction is to put the cart before the horse. Individuals do not get to decide whether they want to obey the law to which they are subject; the sovereign demands "allegiance." 8/

Within the language of law from Coke through Reconstruction, "allegiance" was simply duty to obey the lawful sovereign. If you were subject to the law you owed allegiance to that legal authority. It was not a prerequisite to jurisdiction; it was what followed from being subject to jurisdiction 7/

The members of the 39th Congress that drafted the 14th were very clear that they merely meant to codify & entrench the established rule so that it could not be altered in the future by courts or politicians. 6/

The king could extend additional protections & privileges & those permissions to enemies, merchants, consults, & others supplemented the common law baseline but private aliens from countries not at war w/ England did not need any special permission to be under the law. 5/

Being subject to the law & under the protection of the English king simply meant being amenable to judicial proceedings. Aliens who had not been declared outlaws or who were not actively at war w/ England were under the law of the land. In modern parlance, they were subject to the jurisdiction. 4/

The English rule extending from Coke to Blackstone applied to anyone born on actually governed English land & subject to English law regardless of the alien status of the parent. By common law a natural-born subject of a Spanish king gave birth in England, the child was English (and vice versa). 3/

Short answer -- the Indiana statue will create an implementation mess and has serious vagueness and conceptual problems that degrade rather than improve free inquiry From the article:

From the conclusion of the "subject to the jurisdiction" article with James Heilpern. In short, within the legal community of 1868, this kind of language simply meant within the governing authority of the US. Of course, both undocumented aliens and temporary visitors are.

From the abstract of the new paper. Direct link in next post

Thus has it always been, and thus shall it ever be

And from the intro

From my abstract

Honored to be delivering the Barrett Lecture today at @ucdavislaw.bsky.social on whether the president has a constitutional power to refuse to spend congressional appropriations (a constitutionally based impoundment power)

Some folks could benefit from actually taking a look at the Monroe Doctrine (and we should teach it in American Political Thought)

Have we moved on from rugged individualism discourse, because I've got a plug

Had to be done eventually. New syllabus for new class. Advanced Constitutional Law: Federalism and Separation of Powers

Some reading given the Court’s docket papers.ssrn.com/sol3/papers....

Proposed revision of Texas A&M system policy 08.01 poses significant risks to academic freedom, back to early 20th century fights over presidents vetoing course materials that offend political sensibilities

The next national faculty FedSoc annual conference will be electric, as the kids say these days

New article now available

As predicted, the flag-burning EO is a nothing burger from a legal or policy perspective, but I’m sure it will help everyone with their small-dollar donors. But I would advise criminals to avoid desecrating American flags while they do their criming. 12/12

Foreign nationals might have more to worry about, but again not because there’s now a new legal constraint but because burning flags will be a good way to prioritize your deportation on other grounds. 11/

Let’s litigate to “clarify the scope of the First Amendment exceptions in this area”! Sure, good luck with that. And for those saying “But the Roberts Court!” The Roberts Court is extremely 1A friendly and even Alito has favorably cited the flag burning opinions. Loser. 10/

Same with the referral to local officials for local crimes, but one can easily imagine some overreach in prosecutions that courts will predictably bat down. 8/

Administration will prosecute lawless actions that also involve flag-burning? Ok, whatever. The prosecuting criminal behavior is doing all the work here. The flag add-on is boob bait. 6/