This essay first appeared on September 1, 2025 in Law & Liberty.
Next year, the Supreme Court is expected to clarify the scope of birthright citizenship. In other words, the Court will determine who may, and who may not, claim to be American citizens by virtue of the Citizenship Clause of the Fourteenth Amendment.
The Citizenship Clause reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Thus, to qualify as a birthright citizen, a person must have been both (1) born or naturalized in the United States and (2) born “subject to the jurisdiction of” the United States. Disputes about the scope of the clause center on the meaning of “subject to the jurisdiction of.”
Problems with the Fourteenth Amendment
Congress proposed the Fourteenth Amendment in 1866, and state legislative ratification was declared complete on July 9, 1868. The amendment was designed primarily to protect newly freed slaves from hostile state governments. It has also been the basis for some of the Supreme Court’s most memorable, fair, and popular decisions. Some even hail it, along with the Thirteenth and Fifteenth Amendments, as the basis for a “Second Founding” (a characterization I consider overdrawn).
The value of the Fourteenth Amendment has made writers reluctant to criticize the measure’s text or its drafters. Candor compels, however, the conclusion that the Fourteenth Amendment is very poorly written.
Much evidence of poor drafting is in the results: Section 2, dealing with congressional apportionment, has proved unworkable. Section 3, the Disqualification Clause, is filled with uncertainties that fueled extensive litigation during the months leading to the 2024 presidential elections. Scholars are still debating the Privileges or Immunities Clause—not merely its specific applications but even its basic purpose. Scholars and jurists continue to debate the amendment’s Due Process Clause as well.
Thus, it is unsurprising that the scope of birthright citizenship also remains unsettled.
One reason for the difficulties in construing the Fourteenth Amendment is that, while the 1866 Civil Rights Act is often cited as an interpretive source for the amendment, the language of the amendment differs appreciably from that of its predecessor statute. One cannot dismiss the legal effect of those changes, as some have, simply because a senator or two thought (inaccurately) that they meant the same thing.
Another source of difficulty is that, unlike the framers of the original Constitution, the amendment’s drafters rarely relied on words and phrases with recoverable historical and legal meanings. Instead, they coined their own phrases (such as “equal protection of the laws”) or—as in the case of the amendment’s Privileges or Immunities Clause—referred to idiosyncratic definitions rather than established ones.
The most important source for the original meaning of a constitutional provision is usually the ratification record. And yet the Fourteenth Amendment’s state ratification records, to the extent that they are published at all, often are unhelpful—although the late James E. Bond has used them to show that ratification evidence contradicts the incorporation doctrine.
If you try to interpret the phrase “subject to the jurisdiction,” you encounter all these obstacles. This language differs from the corresponding phrase in the Civil Rights Act (“not subject to any foreign power, excluding Indians not taxed”). The traditional legal meaning of “subject to the jurisdiction” (that is, “within the territory governed by”) would render that phrase redundant, and the Senate debates confirm that a new, unprecedented definition was intended. But those debates are very unclear on what that new definition was.
The Senate Debates
Commentators on several sides of the birthright citizenship issue quote from the Senate debates to support their positions. They can do this, because the debates support several sides. Sometimes, even the same Senator is found supporting several sides.
To illustrate the point, let’s consider some comments not from opponents—who would be expected to issue conflicting interpretations—but exclusively from the amendment’s supporters:
- Jacob Howard (R.-Mich), the principal sponsor, stated in his introductory speech that “subject to the jurisdiction” excluded the children of foreigners born in the United States.
- But John Conness (R.-Cal.)—another supporter—expected the amendment to grant citizenship to the children of resident Chinese nationals. Timothy Howe (R.-Wis.) claimed the Fourteenth Amendment would admit to citizenship “all men … who are born and reared upon American soil”—thereby adding a requirement of being reared and deleting any exclusion of foreigners.
- Lyman Trumbull (R.-Ill.) contended that “subject to the jurisdiction thereof” meant subject to the complete jurisdiction thereof: “not subject to some foreign Power”… owing “allegiance solely to the United States.” Thus, he agreed with Senator Howard that the amendment would exclude the children of all foreigners. But on another occasion, he said it meant, “birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.” The latter statement seems to include the children of foreigners subject to US authority.
- In his initial speech, Senator Howard made no suggestion that tribal Indians in the territories were excluded by the phrase “subject to the jurisdiction”—even though they had been excluded by the Civil Rights Act. When challenged on the point, however, Howard claimed they were excluded. This reader gets the impression that he manufactured the exclusion for the moment.
- Senator Howard also averred that the language—which, he said, excluded children of all foreigners—was merely “declaratory of … the law of the land already.” But, as explained below, it was not.
These incidents only begin to describe the confusion that characterizes the debates over the Citizenship Clause.
Deducing Principles
Unfortunately for Supreme Court justices, the jumbled state of the historical records does not excuse them from interpreting the Constitution as best they can. In this case, specific drafter expectations differed. But we may be able to deduce some common principles, and if so, those principles will have to trump divergent expectations. And the drafting history does disclose principles accepted by most, if not all, of the participants.
First: Both the presumption against redundancy and the Senate debates tell us that “subject to the jurisdiction” imposes a requirement additional to being born within the country. A 2011 Time Magazine cover story opined, “The 14th Amendment … holds that if you’re physically born in the US or a US territory, you’re a citizen. Full stop.” We can be confident this assessment is wrong.
Second: Several senators, including the principal sponsor, acknowledged that “subject to the jurisdiction” excluded the children of all or some foreigners.
Third: Several senators said, without contradiction, that the amendment restored the law as it had existed prior to the Dred Scott decision.
Fourth: Several suggested, without specific contradiction, that “subject to the jurisdiction” was tied to the Anglo-American concept of allegiance. For example, Edgar Cowan (R.-Pa.) said, “It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power.” He affirmed the prerogative of states to evict people “who acknowledge no allegiance, either to the State or the General Government.” Similarly, Senator Trumbell declared that tribal Indians “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.”
Supreme Court Precedent
Supreme Court precedent is broadly consistent with these principles. The Slaughterhouse Cases (1872) included dicta stating that “the phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Elk v. Wilkins (1882) adopted the allegiance rationale to endorse Senator Howard’s view that tribal Indians were not “subject to the jurisdiction”:
“The main object of the opening sentence of the fourteenth amendment was to … put it beyond doubt that all persons … owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. … The evident meaning of these last words is … not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”
Although that language seems to exclude the children of all foreigners, United States v. Wong Kim Ark (1898) corrected course by ruling that legal foreign domiciliaries as well as citizens can pass citizenship to their children. In addition, the court imported wholesale the traditional principles of allegiance:
“[The Constitution] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance. … The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual … and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.”
The Law of Allegiance
In an earlier essay for Law & Liberty and, along with co-author Andrew Hyman, in an article for the British Journal of American Legal Studies, I outlined the traditional rules defining when a person was in or out of allegiance. The rules were as follows:
“Citizens were in allegiance. A foreign diplomat was in allegiance only to his own nation and not to the host country. Otherwise, a foreigner from a friendly nation (an “alien friend”) was in “local allegiance” to the host country, in addition to the superseding allegiance he owed his sovereign. A foreigner from a hostile nation could be in local allegiance to a host country if the host country granted a special dispensation. One who seriously broke the obligations of allegiance was guilty of treason.
“A person without a dispensation and from a hostile nation was an “alien enemy” and not in allegiance to the host country. The host country might prosecute an alien enemy for other crimes, but not for treason. Any person who entered the host country illegally or otherwise rejected allegiance and was likewise an alien enemy. Despite the court’s suggestion in Wong Kim Ark, a foreigner need not be in enemy-occupied territory to qualify as an alien enemy.”
Observe that nothing in the law of allegiance limited it to those foreigners who were permanent residents. Foreign merchants temporarily in England were routinely considered in local allegiance to the Crown.
Observe further that allegiance was a concept applicable to free people. It did not apply to slaves, who, like other “property,” were always “subject to the jurisdiction” of the prevailing government. In Somerset v. Stewart (1762)—the case in which Lord Mansfield ruled that there was no slavery in England—the former slave James Somerset was able to establish allegiance because under English law, he was free.
Because of the poor drafting of the Fourteenth Amendment, the conflicting statements among those who proposed it, and the lack of useful ratification history, there can be no perfect interpretation of the Citizenship Clause. But there is a best one: A child is born “subject to the jurisdiction” of the United States when his or her parents are in allegiance to the United States. That means they are either US citizens or non-diplomat foreigners from friendly countries—temporarily or permanently, but legally—in the United States.
