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Justice John Marshall Harlan and Birth Tourism

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The Volokh Conspiracy Mostly law professors | Sometimes contrarian | Often libertarian | Always independent Justice John Marshall Harlan and Birth Tourism Justice Harlan provides a middle ground for the Supreme Court on the question of birthright citizenship. One of the more unexpected aspects of the Birthright Citizenship case was the return of Justice John Marshall Harlan. But I think a more car...
The narrative presents a nuanced legal argument, leveraging historical dissent to challenge contemporary assumptions about birthright citizenship. The strongest version of this argument is that Harlan's lectures and dissents provide a principled basis for distinguishing between domiciled and temporary visitors—a distinction *Wong Kim Ark* left unresolved. The analysis avoids emotional exploitation but employs a form of authority games by invoking Harlan's vindicated dissents to bolster credibili...