{"id":1366,"date":"2010-01-14T08:02:18","date_gmt":"2010-01-14T15:02:18","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/jlpp\/?page_id=3"},"modified":"2026-03-25T12:47:45","modified_gmt":"2026-03-25T16:47:45","slug":"current-issue","status":"publish","type":"page","link":"https:\/\/journals.law.harvard.edu\/jlpp\/current-issue\/","title":{"rendered":"Current Issue"},"content":{"rendered":"\n

Volume 49: Issue 2<\/h3>\n\n\n\n

Articles<\/strong><\/h2>\n\n\n\n
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The Birthright Citizenship Debate<\/a><\/h3>\n\n\n\n

Hon. Steven J. Menashi<\/em><\/strong>
The Supreme Court may resolve the legality of Executive Order 14,160 before these questions receive the full attention of scholars. The Court, no doubt, will have the benefit of the views of able attorneys and many amici curiae. But the detailed consideration of the contributors to this Issue provides a solid foundation on which the debate can proceed.<\/p>\n\n\n\n

Jurisdiction and Citizenship<\/a><\/h3>\n\n\n\n

Ilan Wurman<\/em><\/strong>
This Article makes three historical claims about the common law rule and its development. First, the Article centers the importance of parental status. Second, it reveals through an examination of safe-conducts and English statutes from the twelfth through fourteenth centuries that the sovereign\u2019s consent to an alien\u2019s presence was necessary to extend the king\u2019s protection. Third, it uncovers new evidence, including from treatises and military authorities, that suggest that by the American Civil War the applicability of the common law rule to children born of temporary sojourners was contested.<\/p>\n\n\n\n

By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States<\/a><\/h3>\n\n\n\n

Keith E. Whittington<\/em><\/strong>
The Citizenship Clause of the Fourteenth Amendment entrenched birthright citizenship into the Constitution. Some have asserted that the scope of birthright citizenship should be understood to exclude children born on American soil to parents who are either unauthorized to be in the country or authorized to be in the country for only a limited purpose and period. This asserted limitation of birthright citizenship is at odds with the original meaning of the Fourteenth Amendment and the antecedent common-law rule of nativity that the language of the Fourteenth Amendment embodied and declared.<\/p>\n\n\n\n

Without Domicile or Allegiance: Gypsies and Birthright Citizenship<\/a><\/h3>\n\n\n\n

Gerard N. Magliocca<\/em><\/strong>
Though Professors Wurman and Whittington disagree on the original public meaning of the Citizenship Clause, and hence birthright citizenship, they must agree that children born in the United States to Roma (or gypsy) parents are citizens. Why did the Roma feature so prominently in the citizenship conversation, and what does that mean for the interpretation of birthright citizenship today?<\/p>\n\n\n\n

Speeches<\/strong><\/h2>\n\n\n\n
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2025 Scalia Lecture<\/strong><\/h5>\n\n\n\n

Are We All Textualists Now?<\/a><\/h3>\n\n\n\n

Hon. Rachel P. Kovner<\/em><\/strong>
Because this is the Scalia Lecture, I thought it might be appropriate to reflect on those two experiences in combination, by talking about textualism\u2014one of Justice Scalia\u2019s most enduring legal contributions\u2014and both the role and the limits of the role that it plays on the Supreme Court today. After all, it was in a conversation on statutory interpretation as part of this lecture series that Justice Kagan famously declared, \u201c[w]e are all textualists now.\u201d What I am curious about is: are we? or, more precisely, is the Supreme Court a court of textualists now?<\/p>\n\n\n\n

In Memoriam<\/strong><\/h2>\n\n\n\n
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Hon. Sandra Ikuta<\/strong><\/h5>\n\n\n\n

Tribute to Judge Sandra Ikuta<\/a><\/h3>\n\n\n\n

Hon. Eric C. Tung<\/em><\/strong>
Few jurists have been as effective as Judge Sandra Ikuta in upholding our country\u2019s rule of law. Until her passing, for two decades, she sought to interpret our laws with fidelity to their text and history. . . . Judge Ikuta stands among the greats.<\/p>\n\n\n\n

Case Comment<\/strong><\/h2>\n\n\n\n
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Secular Orthodoxy and the Establishment Clause in Mahmoud v. Taylor<\/em><\/a><\/h3>\n\n\n\n

Monroe Harless<\/em><\/strong>
In Mahmoud v. Taylor<\/em>, the Court allowed schools to teach a secular moral worldview. And it did so without any Establishment Clause scrutiny. This Comment argues that the Court\u2019s claimed neutrality is neither neutral nor defensible on its own terms.<\/p>\n\n\n\n

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Read More From Volume 49 Below!<\/p>\n\n\n\n

<\/div>\n\n\n\n

Volume 49: Issue 1<\/h3>\n\n\n\n

Articles<\/strong><\/h2>\n\n\n\n
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A Response to The Foreshadow Docket<\/em><\/a><\/h3>\n\n\n\n

Hon. Trevor N. McFadden & Vetan Kapoor <\/em><\/strong>
In The Foreshadow Docket<\/em>, Professor Bert Huang adds to the newly blossoming body of scholarship about the Supreme Court\u2019s emergency docket. He offers thought-provoking ideas about the precedential value of the Court\u2019s emergency decisions, a topic we have also addressed. . . . We are unpersuaded.<\/p>\n\n\n\n

Qui Tam<\/em> Legislation and Article II: State Constitutional Precursors to the \u201cTake Care\u201d Clause<\/a><\/h3>\n\n\n\n

Randy Beck<\/em><\/strong>
This article highlights historical evidence that speaks directly to the question of whether Americans in the ratification period would understand the Take Care Clause to preclude federal qui tam<\/em> legislation.<\/p>\n\n\n\n

Clarifying the True Breadth and Strength of Parental Rights Under Pierce<\/em><\/a><\/h3>\n\n\n\n

Melissa Moschella <\/em><\/strong>
Despite Pierce<\/em> and Meyer<\/em>\u2019s lofty rhetoric about the natural rights and duties of parents\u2014and the corresponding limits on the power of the state\u2014 many subsequent court decisions have interpreted Pierce quite narrowly, and parental rights jurisprudence is currently confused and inconsistent. How did this happen?<\/p>\n\n\n\n

Natural Law in American Courts: From the Civil War\u2019s End to the Present<\/a><\/h3>\n\n\n\n

Richard H. Helmholz<\/em><\/strong>
The research I undertook aimed to discover the concrete purposes and results to which the law of nature had been applied in the ordinary practice of American courts. As a practical matter, this meant discovering whether citations to the law of nature appeared in judicial opinions in cases in which it would have been relevant.<\/p>\n\n\n\n

Section 1983 (Still) Displaces Qualified Immunity<\/a><\/h3>\n\n\n\n

Patrick Jaicomo & Daniel Nelson<\/em><\/strong>
Since its recent rediscovery, many have assumed the Notwithstanding Clause\u2019s omission altered Section 1983\u2019s meaning. It did not. Through an in-depth historical analysis, this Article explains what the clause means, why it was omitted from the text, and how its omission should affect our understanding of the law.<\/p>\n\n\n\n

Speeches<\/strong><\/h2>\n\n\n\n
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Maintaining Judicial Structure<\/a><\/h3>\n\n\n\n

Hon. David R. Stras<\/em><\/strong>
Having served in multiple roles, I want to help you understand how state and federal courts fit together, including pointing out a few places where we have deviatedfrom the vision of our Founders. Tonight\u2019s talk is about maintaining judicial structure..<\/p>\n\n\n\n

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Note<\/strong><\/h2>\n\n\n\n
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Congressional Authority to Regulate Military Operations<\/a><\/h3>\n\n\n\n

Lulu Mansour<\/em><\/strong>
Authority over the conduct of hostilities is traditionally thought to be within the exclusive province of the Commander in Chief. The constitutional text and historical evidence from the early republic, however, confirm that Congress may regulate in this space.<\/p>\n\n\n\n

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Read more<\/h2>\n\n\n\n
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Vol. 48 Excerpt: Everson<\/em> Must Fall<\/strong><\/summary>\n

You can access the full article of the below abstract by Timon Cline, Josh Hammer & Yoram Hazony here<\/a>.<\/p>\n\n\n\n

In June 2022, in Dobbs v. Jackson Women\u2019s Health Organization,<\/em> the Supreme Court overturned Roe v. Wade<\/em>, the infamous 1973 decision that purported to discover a right to an abortion in the text of the Constitution. It was a remarkable achievement. For decades, conservative lawyers, scholars, clergymen, and activists had devoted overwhelming attention to ending the Supreme Court-mandated abortion regime established under Roe<\/em>. This almost obsessive focus on overturning Roe<\/em> was largely a reflection of the uniquely odious character of the American \u201cabortion on demand\u201d regime, which had turned abortion into a pillar of America\u2019s culture of sexual license and a kind of sacrament of post-War liberalism.<\/p>\n\n\n\n

But the Dobbs<\/em> decision is likely to be regarded as a watershed in American constitutional history for reasons that go well beyond the abortion issue itself. For in recognizing that the Constitution includes no right to an abortion, the Court seemed to be bringing to a close a period of seventy-five years in which it had consistently discovered previously unknown \u201crights\u201d in the Constitution and Bill of Rights, and imposed these new rights on the states through an authority it claimed to have found in the Fourteenth Amendment.<\/p>\n\n\n\n

This mechanism had permitted the Court to progressively strip the states of their constitutional authority to determine their own  laws, not only with respect to the issues of racially motivated violence and abuse that had motivated the passage of the Fourteenth Amendment after the Civil War, but also on a vast array of other areas pertaining to health, religion, and morals\u2014the very police powers entrusted to the States by the Constitution in 1787. It is no exaggeration to say that by the method described above, the federal structure of the American republic was systematically dismantled by liberal courts anxious to place issues relating to race, religion, and morals beyond the reach of state legislatures.<\/p>\n\n\n\n

In the wake of the Dobbs<\/em> decision, America\u2019s sleepy state legislatures have once again emerged as the dominant venue for the most demanding and important political debates, exercising responsibility for republican self-government to an extent they have not known for decades. While opinions vary as to whether the ultimate resolution of the abortion issue, specifically, should be at the state or federal level, it is undeniable that American federalism has been given a new lease on life due to Dobbs<\/em>. As President Donald Trump put it following Dobbs<\/em>, whatever the states determine will be \u201cthe law of the land.\u201d<\/p>\n\n\n\n

This move to reinstate the federal structure of American government appears to be part of a broader project of constitutional restoration undertaken by the Supreme Court under Chief Justice John Roberts. From the strengthening of the Second Amendment right of citizens to carry arms in New York State Rifle & Pistol Association, Inc. v. Bruen<\/em>, to the \u201cmajor questions doctrine\u201d case of West Virginia v. EPA<\/em>, to the demise of so-called \u201caffirmative action\u201d programs in Students for Fair Admissions v. Harvard<\/em>, to the limitations of the  powers of the  administrative state in Loper Bright Enterprises v. Raimondo<\/em>, the Supreme Court has shown a consistent interest in rehabilitating important and long-moribund provisions of the Framers\u2019 Constitution. In this context, the Roberts Court\u2019s willingness to recalibrate the relationship between the national government and the states, building upon the work begun by the Rehnquist Court that preceded it, is best understood as an indication that we have entered a period in which the terms of the original Constitution are being revisited and revived.<\/p>\n\n\n\n

Let us suppose that we\u2019ve read this watershed moment correctly, and that the Supreme Court is prepared to go beyond overturning Roe<\/em>, and to engage in a more general restoration of the ailing American constitutional order as a distinctly federalist one. What, then, should be the next great aim of this Court and of American conservatives seeking such a constitutional restoration?<\/p>\n\n\n\n

The American constitutional order was designed, in no small part, to allow the respective states\u2014the laboratories of policy\u2014ample room to experiment with different settlements on questions of public religion and morals. It was designed, in other words, to defuse the rationalists\u2019 yearning to devise a single answer to every vexing question of religion and morals, and to impose this one answer on a vast continent in which diverse communities had established themselves.<\/p>\n\n\n\n

Today, more than ever, we can see the wisdom in this design and understand how much good, and even national healing, could come from returning to it now.<\/p>\n\n\n\n

With this larger purpose in mind, we propose that the next longterm goal for the conservative legal movement must be to seek a reversal of Everson v. Board of Education,<\/em> the Court\u2019s 1947 ruling that originally imposed the misguided and ahistorical doctrine of \u201cseparation of church and state\u201d on the states. More than any other decision, it was this ruling that paved the way for the destruction of America\u2019s federalist system, especially as it pertains to laws concerning the establishment of religion and public morals, and for the Supreme Court\u2019s subsequent campaign to suppress traditional religious and moral norms that had animated public life in America for centuries.<\/p>\n\n\n\n

Everson<\/em> must fall.<\/p>\n<\/details>\n\n\n\n

<\/div>\n","protected":false},"excerpt":{"rendered":"

Volume 49: Issue 2 Articles The Birthright Citizenship Debate Hon. Steven J. MenashiThe Supreme Court may resolve the legality of Executive Order 14,160 before these questions receive the full attention of scholars. The Court, no doubt, will have the benefit of the views of able attorneys and many amici curiae. But the detailed consideration of the contributors to this Issue provides a solid foundation on which the debate can proceed. Jurisdiction and Citizenship Ilan WurmanThis […]<\/p>\n","protected":false},"author":2,"featured_media":0,"parent":0,"menu_order":1,"comment_status":"closed","ping_status":"closed","template":"","meta":{"site-sidebar-layout":"no-sidebar","site-content-layout":"","ast-site-content-layout":"normal-width-container","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"footnotes":""},"class_list":["post-1366","page","type-page","status-publish","hentry"],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/PeZSiL-m2","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/pages\/1366","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=1366"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/pages\/1366\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=1366"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}