Avi Siegal (Yale University - Law School) has posted Covert Constitutional Balancing on SSRN. Here is the abstract: This Article maps out the context and contours of covert balancing in constitutional cases under today’s Supreme Court. Anti-balancers dominate the Court, as signaled by the ostensible originalist triumph of N.Y. State Rifle & Pistol Ass’n v. Bruen (2022). Recently retired Justice Breyer’s newest book, which praises constitutional balancing, seems like a kind of swan song for this judicial instrument.

It was relatively straightforward for the British government to end birthright subjecthood: statute overrides common law...

Ari Goldstein, a 2025 graduate of the University of Pennsylvania Law School, has published The Lost World of Jurisdictional and Constitutional Facts in the Administrative Law Review:According to the standard historical account, courts have deferred to agencies on questions of fact since the early twentieth century. But that account is incomplete. In the world before the APA, courts generally deferred to agencies only with respect to “ordinary” facts. With respect to two particularly important types of facts—jurisdictional facts (facts on which an agency’s jurisdiction over a dispute depended) and constitutional facts (facts on which an individual litigant’s constitutional rights depended)—courts applied independent judgment in a similar manner as they did to questions of law. There is strong evidence to suggest that the APA was intended to incorporate this distinction between ordinary, jurisdictional, and constitutional facts. This Article recovers the origins of the distinction and its status at the dawn of the APA; considers its merits; and traces its evolution and diminishment in the eight decades since then. Dan Ernst 

Christian Burset is a legal historian whose research focuses on the British Empire and the early United States, as well as the implications of that histor...

Benjamin Keener (University of Pennsylvania Carey Law School) and Keith E. Whittington (Yale Law School) have posted a revised version of Demystifying Birthright Citizenship on SSRN. Here is the abstract: Executive Order 14160 and the litigation it generated in Trump v. Barbara have thrust birthright citizenship back to the center of American constitutional debate. Critics of the traditional rule argue that the Fourteenth Amendment’s “subject to the jurisdiction thereof” language implicitly restricts birthright citizenship in ways that exclude the American-born children of undocumented immigrants and temporary visitors.

 [We have the following announcement.  DRE]  Notre Dame Legal History Colloquium to Begin Third Year of Meetings, Now Accepting Presenter Applications The Notre Dame Legal History Colloquium will again convene a series of workshops during the 2026-2027 academic year for emerging legal historians. Now in its third consecutive year of meetings, the initiative is financially supported by Notre Dame Law School and The Graduate School. Formerly known as the ASLH/Notre Dame Graduate Legal History Colloquium, the forum provides early career legal scholars and practitioners with feedback on works-in-progress—an important step in fine-tuning research to a point where it can be submitted for publication. This year, the Colloquium has been restyled to ensure that law, master’s, and doctoral students, as well as faculty members in visiting or other term-limited positions (e.g., postdocs) are eligible to present their work. The Colloquium was established in 2024 with the support of the American Society for Legal History. It was organized at that time by Dennis Wieboldt, who graduated from Notre Dame Law School in 2026. Over the last two years, the Colloquium has enabled more than 40 students from across the country to present their research. Articles workshopped at the Colloquium have already begun (or will soon appear) in leading journals, including the Yale Law Journal, University of Pennsylvania Journal of Constitutional Law, and Fordham Law Review Online. Although the Colloquium has been restyled, its format will remain the same. Each presenter will be paired with a designated respondent, who is typically a senior scholar in the field. Previous respondents have included faculty from Notre Dame Law School, Harvard Law School, Yale Law School, the University of Chicago Law School, and the Northwestern University Pritzker School of Law. All works-in-progress will continue to be pre-circulated to prospective attendees to facilitate a robust discussion. Now that Wieboldt has concluded his studies at Notre Dame Law School, the Colloquium will be co-convened by 3L Mintae Cha and history Ph.D. student Sophie Rizzieri. Cha, who formerly earned his Ph.D. from Princeton University, received the American Society for Legal History’s 2024 William Nelson Cromwell Dissertation Prize. The Prize is awarded annually to the best dissertation in any area of American legal history by the Society. Rizzieri’s research focuses on early American intellectual, social, and legal history. During the 2026-2027 academic year, meetings of the Colloquium will be held at the Notre Dame Law School campus in Chicago on September 26, October 17, February 6, and March 6. An additional meeting will be held at the Law School’s South Bend campus on January 16. Those interested in presenting at and/or attending meeting(s) of the Colloquium should indicate their interest here.

Benjamin Keener (University of Pennsylvania Carey Law School; Faculty of History, University of Cambridge) and Keith E. Whittington (Yale University - Law School) have posted Demystifying Birthright Citizenship on SSRN. Here is the abstract: Executive Order 14160 and the litigation it generated in Trump v. Barbara have thrust birthright citizenship back to the center of American constitutional debate. Critics of the traditional rule argue that the Fourteenth Amendment’s “subject to the jurisdiction thereof” language implicitly restricts birthright citizenship in ways that exclude the American-born children of undocumented immigrants and temporary visitors.

<div> Executive Order 14160 and the litigation it generated in Trump v. Barbara have thrust birthright citizenship back to the center of American constitutiona

Benjamin Keener, University of Pennsylvania Carey Law School, and Keith E. Whittington,  Yale Law School, have posted Demystifying Birthright Citizenship: Executive Order 14160 and the litigation it generated in Trump v. Barbara have thrust birthright citizenship back to the center of American constitutional debate. Critics of the traditional rule argue that the Fourteenth Amendment's “subject to the jurisdiction thereof” language implicitly restricts birthright citizenship in ways that exclude the American-born children of undocumented immigrants and temporary visitors. This Article clears the brush. It demystifies birthright citizenship by demonstrating that the Citizenship Clause embodies a single, coherent rule with deep roots in the common law—one that is neither riddled with ad hoc exceptions nor susceptible to the narrowing constructions its modern critics advance. Working from an originalist methodology, this Article reconstructs the traditional rule and systematically rejects principal arguments for a more restrictive reading. Part I begins with a note on methods and how we believe an originalist analysis of the Citizenship Clause should proceed. Part II lays out the original meaning of the birthright citizenship rule and the terms of the Fourteenth Amendment that constitutionalized that rule. We then canvass the evidence in support of a more restrictive reading of the rule. Parts III and IV examine the argument that only those who have been invited into the country and are present by the country’s consent are subject to its jurisdiction. Part V examines the argument that only those who have the requisite allegiance to the country are subject to its jurisdiction. None finds sufficient support in the original meaning of the text.  --Dan Ernst 

All the kegal theory for this weekend!

Keith E. Whittington (Yale University Law School) and James Heilpern (Georgetown University Law Center) have posted &#8220;Subject To The Jurisdiction&#8221; As Legal Text on SSRN. Here is the abstract: The Citizenship Clause of the Fourteenth Amendment guarantees citizenship to all persons born in the United States and &#8220;subject to the jurisdiction thereof.&#8221; This Article challenges the allegiance-based model by applying an original public meaning framework to the Citizenship Clause.

The allegiance reading has no basis in the historical usage of this language in American law

Probably not the most in-demand use, but a really cool one. And maybe something that makes originalism easier?

It was on this day in 1789 that the federal government started to operate under the terms of the U.S. Constitution, as the Confederation Congress ceded power. However, there was a major problem with the first session of the new Congress: not enough members showed up.

The Trump administration’s efforts to narrow the scope of the 14th Amendment are based on revisionist history.

New piece on birthright citizenship in English and American law

Calvin’s Case established the birthright rule for English subjects. President Trump’s Executive Order 14160 asserts that the children of illegally present alien

Calvin’s Case established the birthright rule for English subjects. President Trump’s Executive Order 14160 asserts that the children of illegally present alien

Calvin’s Case established the birthright rule for English subjects. President Trump’s Executive Order 14160 asserts that the children of illegally present alien

YouTube video by The Federalist Society