The Law of Birthright Citizenship
13th November 2026
John Eastman opens this symposium with a provocative and thoughtful essay on the meaning of the American Revolution and its implications for birthright citizenship. He argues that under the common law, the rule of “birthright subjectship” was that anyone born on the king’s soil was under the king’s protection and necessarily the king’s subject in perpetuity. The U.S. Supreme Court made the same claim in Trump v. Barbara when it concluded that in England, a foreigner who had a child there and who left the next day would have produced a birthright subject.
Eastman then argues that the American Revolution rejected perpetual allegiance by birth and adopted a conception of government as a social compact, founded on the consent of the governed. On this foundation, Eastman argues that the 14th Amendment’s understanding of citizenship requires parents to owe a complete political allegiance to the country.
I think Eastman both concedes too much and goes too far.