Protecting Minorities from De Facto Statelessness the United States, and subject to the jurisdiction thereof, are citizens of the United States’.1 This includes the children of unauthorised immigrants. The practice of conferring the rights of political membership on all individuals born under the protection of the sovereign predates the ratification of the Fourteenth Amendment. In Anglo-American law, the concept of a birthright to political membership can be traced back to Edward Coke’s Calvin’s Case in 1608.2 This aspect of birthright political membership remained in force in the US through its independence and the ratification of the Fourteenth Amendment. It persists in subsequent US diplomatic interpretations of birthright citizenship as a ‘common law rule’ embodied in the Citizenship Clause of the Fourteenth Amendment.3 The common law rule of birthright citizenship that was entrenched in the Fourteenth Amendment continues to protect the children of unauthorised immigrants against efforts to make them de facto stateless in their country of birth and upbringing. 4 In this article, I make two linked arguments. My central argument is that national American citizenship is directly connected to antecedent notions of allegiance and protection in the Anglo-American common law as applied during the colonial period. The rule of citizenship by territorial birth remained largely the same before, during and after the American Revolution. I argue that birthright citizenship is not only entrenched in the text of § 1 of the Fourteenth Amendment to the US Constitution but in a more ancient common law understanding of the birthright of native-born British subjects and later American citizens. Once this rule was stated in a way that included African-Americans, Indigenous persons and other minorities as citizens based on their birthplace alone, jus soli birthright citizenship became a powerful tool of inclusion for marginalised minorities, preventing majorities from denying them the benefits of citizenship. While the main focus of this article is on developments in the United States, the article is relevant to the history of jus soli birthright citizenship as a means of protecting the rights of national minorities, including the children of immigrants in other jurisdictions. Reaching beyond the scope of existing accounts of the historical development of American citizenship, this article defends a broad normative vision of the jus soli as an instrument of protection for minorities that extends to US territories and argues for its preservation and extension beyond the United States. BIRTHRIGHT CITIZENSHIP AND NATIONAL MINORITIES: AN OVERVIEW The practice of granting political membership, as subjects, and later, citizens, to all persons born within a country’s territorial jurisdiction can be traced back to the principle of allegiance and protection set forth in Calvin’s Case by Edward Coke 1 2 3 4 Constitution of the United States of America, amendment XIV, § 1. Calvin v Smith [1608] 7 Co Rep 1a; 77 ER 377 (‘Calvin’s Case’). United States Department of State, Acquisition by Birth in the United States (Foreign Affairs Manual No 8 FAM 301.1, CT:CITZ-50, 21 January 2021) [a(1)] <https://fam.state.gov/fam/08fam/08fam030101.html>. Linda Kerber, ‘Birthright Citizenship: The Vulnerability and Resilience of an American Constitutional Principle’ in Jaqueline Bhabha (ed), Children Without a State: A Global Human Rights Challenge (MIT Press 2014) 255, 269. Here, I use Jacqueline Bhabha’s understanding of de facto statelessness as applying to undocumented immigrants who cannot readily call upon their rights of nationality in the only country where they ever lived, even though they may be de jure nationals by descent elsewhere: see Jacqueline Bhabha, ‘Preface’ in Jacqueline Bhabha (ed), Children Without a State: A Global Human Rights Challenge (MIT Press 2014) xiii, xiii. 67