What about the argument that the common law dictates that allegiance and and protection of the sovereign go hand in hand, are mutual, and require no specific act, but are automatic at birth. If the king is obligated to protect, the subject owes allegiance, and vice versa.
If the SCOTUS accepts that English common law history as dispositive of the precise factual and legal issue before the Court then, yes, game, set, match.
But there's a big difference between a king who wants to expand his kingdom by requiring anyone born in the kingdom to be in allegiance to him (and under his protection) and relying on that kingdom-enhancing practice to grant the right of citizenship to an infant born on US soil to illegal aliens.
Nothing in the enactment history suggests the 14A framers sought anything more restrictive than that English common law practice. To the contrary the record indicates a broader definition the extent that it wouldn't discriminate on race. In fact, Sen. Trumbull read unto the record a North Carolina
case, State v Manuel, that relief on English practice. (Couldn't bother looking it up in the record itself, so here's a screenshot from my upcoming article)
relied*
I have no doubt that many cases, including Wong Kim Ark, relied on English common law -- where there was a king who wanted to expand his kingdom by essentially conscripting anyone born on the kingdom's soil as a loyal subject who bore allegiance to the king. SCOTUS going to revisit that reliance?
I'm not using the case as judicial precedent of a reliance on common law. I'm using to show the common understanding of the CC's text, an originalist argument. Legislative history can be troublesome bc not all legislators shared the same purpose. It can, however, demonstrate a common understanding
of the text of what they are about to vote on. Especially in the context of constitutional text that shouldn't be using highly technical words. It is intended to be understandable to the common reader.
Was the common understanding based on English common law -- incorporating the practice under a king delirious of expanding his kingdom?
Although the author is not an esteemed academic, his analysis of Calvin's Case and how it's principles support denying citizenship to infants born in the US to illegal aliens is, IMO, worth a read.
