Jurisdiction and Citizenship: A Reply

Ilan Wurman*

Newton’s laws of physics work most of the time here on earth because of earth’s weak gravitational field and relatively slow velocity. But those laws do not explain every phenomenon of the observable universe. Most famously, they do not explain the orbit of Mercury. And so we know that the true law of the universe, at least so far as we understand things, is the law of general relativity. That law explains both the orbit of Mercury and other otherwise inexplicable phenomena, as well as Newton’s laws, which are just an approximation of general relativity given the conditions here on earth. In By Birth Alone, Keith Whittington argues that the rule of birthright citizenship at common law was that mere birth on the sovereign’s soil conferred citizenship.¹ He cites some sources that say so.² But, as this short Essay will show, stating the common law rule in this way is much like reciting Newton’s laws. Such statements are sufficient to explain the rule as applied to most situations because they are good approximations given the parameters that usually exist. But they do not explain all observable phenomena—particularly the situation of ambassadors and invaders. One needs a theory of general relativity, which is to say, one needs a more precise rule. And that rule happens to have been birth on the sovereign’s soil to parents under the sovereign’s protection. That distinction makes all the difference and may have radical implications for the citizenship questions with which modern-day observers are confronted.³

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© 2026 Ilan Wurman. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Julius E. Davis Professor of Law, University of Minnesota Law School.

1 Keith E. Whittington, By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States, 49 HARV. J.L. & PUB. POL’Y 459 (2026).

2 Id. at 531–35.

3 As this Essay will also explain, Professor Whittington appears to have softened his claim that birth alone on the territory was the relevant criterion; rather, he acknowledges that birth on the sovereign’s soil and subject to the sovereign’s governing authority—and perhaps even to the sovereign’s “tolerance”—was the relevant test. If so, as he seems to have acknowledged, there is nothing compelling the United States to exercise its authority over temporary visitors or unlawfully present aliens. Thus, he seems to agree, the Fourteenth Amendment’s language does not compel the result that aliens unlawfully present or temporarily visiting must always and necessarily have the benefit of “constitutional” birthright citizenship. See infra Part II.C.