Original Citizenship Published in Penn Law Review PENNumbra

December 6th, 2010

I am honored to announce that my essay, Original Citizenship, has been published in the University of Pennsylvania Law Review’s PENNumbra. It is also available on SSRN. Here is the snazzy abstract written by the Journal:

In his Essay Original Citizenship, Josh Blackman asks what the Constitution means when it refers to “citizen[s] of the United States.” Acknowledging the lack of guidance on the topic, Blackman looks to contemporary notions of citizenship, including the theories of birthright citizenship and “citizenship by election,” for help. In concluding that one could only become a citizen of the United States as of the Declaration of Independence, Blackman tracks early case law at critical points in the nation’s early history. He looks to treason cases, contested elections, and interpretations of Jay’s Treaty to determine that the only logical starting point for “original” citizenship must be the Declaration. Blackman’s piece is a much-needed contribution to a sparse area of scholarship and helps to lay the groundwork for future work on the implications of his findings.

I broke some new ground here, and will follow up with the topic in several future works. More from the conclusion on this point:

A more complete understanding of the significance of the Decla- ration—and the laws that the Continental Congress and the states passed “in pursuance of” and “under the Authority of” the Declara- tion—sheds new light on the Constitution.209 Like “citizenship of the United States,” which is based on doctrines that emerged from our Independence, other portions of our Constitution are premised on powers and rights predating 1789—including a state’s reserved pow- ers,210 a state’s sovereign immunity,211 the privileges or immunities of United States citizenship,212 preexisting enumerated rights,213 and the rights retained by the people.214 In order to fully understand these doctrines, one needs to understand that they have existed since 1776. The relevant history for originalist inquiries stretches back further than we may have thought. Whether other provisions of our Constitution should be understood differently in light of original citizenship will be explored in future works.

This is one of my favorite pieces to date, and I am quite proud of it. I hope you enjoy it also.