The Fourteenth Amendment guarantees that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” For much of the last century, the prevailing academic consensus has been that these words reflect the nation’s adoption of the English common law rule of jus soli, a feudalistic principle under which a person’s citizenship is irrevocably dictated by his or her birth upon certain land rather than inherited by bloodline (jus sanguinis). Consistent with the rise of this academic consensus, the federal government has abided by a decades-long policy of treating virtually all children born within the nation’s geographic boundaries as citizens, regardless of parental immigration status.
This modern consensus, however, is just that—modern. Despite its near unquestioned acceptance within the legal community today, there is compelling historical evidence that the original public meaning of the Fourteenth Amendment entailed a far more restrictive application of birthright citizenship than our current academic consensus suggests. As I have previously argued at length in a 2019 law review article on the subject, it is eminently clear from the legislative and legal history surrounding the Citizenship Clause that the men who drafted and ratified it were not attempting to make citizens of virtually all US-born children under virtually all circumstances. Far from taking feudalistic principles of the English common law and ingrafting them to the nation’s charter, they were resolving a uniquely American problem with a uniquely American understanding of citizenship.
The primary, if not singular, purpose of the Fourteenth Amendment’s Citizenship Clause was to override the moral atrocity of the Supreme Court’s 1857 decision in Dred Scott v. Sandford. There, the nation’s highest court held that the US-born descendants of African slaves were not (and could never become) citizens, effectively relegating an entire race of people to permanent alienage in the country where they and their ancestors had lived and died for multiple generations. While the 39th Congress clearly sought to remove race-based barriers to citizenship, it did not do so by returning to a common law rule derived from feudalism and perpetual allegiance owed to a sovereign by virtue of some accident of birth upon his land. Rather, informed by republican principles, Congress sought to enshrine birthright citizenship for all persons who, like the US-born descendants of African slaves, were subject to the fullest extent of the United States’ political jurisdiction. At the same time, Congress debated and revised the language of both Fourteenth Amendment and the Civil Rights Act of 1866 that preceded it in a purposeful attempt to clarify that much larger categories of individuals were excluded from birthright citizenship under the Constitution than were excluded under the old common law rule.
Perhaps nowhere is this more evident than in the debates surrounding Congress’ first effort to establish the citizenship of the newly freed slaves—the Civil Rights Act of 1866. This piece of legislation for the first time in American history defined the parameters of birthright citizenship, making citizens of “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” Senator Lyman Trumbull—an accomplished attorney from Illinois and one the principal authors of the Act’s citizenship clause—recounted for his fellow members of Congress how that language arose from intentional efforts to exclude from citizenship those who owed only a qualified and temporary allegiance under the common law rule. He explained that they initially considered the language “all persons born in the United States and who owe allegiance to it,” but rejected it precisely because “upon further investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that form would not answer.”
In order to combat future claims that the Act made citizens of all persons who owed any type of allegiance under the common law rule of jus soli, Congress settled on including only those born in the United States and “not subject to any foreign power.” Then, as a final measure to ensure that Indians who owed allegiance to tribal governments were similarly excluded from birthright citizenship, Congress included the phrase “excluding Indians not taxed.” In explaining this provision, Trumbull expressed that this term was a “constitutional term … to designate a class of persons who were not a part of our population” and who “are not regarded as part of our people,” similar to those who were present in the country only temporarily or were otherwise subject to a foreign power.
Yes, it is true that when Congress drafted and ratified the Fourteenth Amendment, it utilized different language in defining citizenship. But, as Sen. Reverdy Johnson explained, the language “subject to the jurisdiction thereof” was meant to constitutionalize precisely the same principles of citizenship as the Civil Rights Act: “All that this amendment provides is, that all persons born in the United States and not subject to some foreign power—for that, no doubt is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States.” The full context of the legislative history makes it clear that the Fourteenth Amendment’s use of alternative language was not an attempt by Congress to abrogate the statutory definition of citizenship found in the Civil Rights Act, but to settle ongoing debates about how best to exclude Native Americans who (just like aliens still subject to a foreign power) either maintained ties of allegiance to their tribal governments or otherwise declined to fully integrate themselves into the American body politic. Moreover, Congress re-enacted the Civil Rights Act verbatim as an addendum to the Enforcement Act of 1870, and the statutory definition existed side-by-side with the new constitutional definition for another 70 years. During that time, both courts and scholars generally understood that the definitions were consistent and complementary.
This more limited, allegiance-based understanding of the Citizenship Clause is also well-reflected in the views of many prominent legal scholars of the time. For example, in his 1875 treatise Notes on Elementary Law, William C. Robinson—then a tenured professor of common law at Yale Law School—explained that birthright citizenship under the Fourteenth Amendment belongs only to those “born within the jurisdiction and allegiance of the United States.” This included the US-born children of alien parents, but only when those alien parents were permanently domiciled within the United States. Robinson was not alone in his analysis of an allegiance-based limitation on birthright citizenship that stands in stark contrast to a true adoption of jus soli. In the two decades immediately following the Fourteenth Amendment’s ratification, such influential stalwarts of American legal commentary as Thomas Cooley and Francis Wharton articulated jurisdictional limits of the Citizenship Clause that closely align with the reasoning underpinning President Trump’s recent and much-maligned executive order.
Ironically, despite assertions that President Trump’s order is “unprecedented” in its restriction of citizenship documents based on parental immigration status, it is virtually identical to the earliest post-ratification executive branch practices. For example, in 1885, Secretary of State Thomas Bayard instructed federal officials not to consider a US-born man to be a US citizen because his German father and Swiss mother were never permanent US residents and returned with the child to Germany when he was a toddler. He was, therefore, at the time of his birth, “subject to a foreign power” and not “subject to the jurisdiction of the United States.” Similarly, in 1890, the Department of Justice considered the citizenship claim of a child born of a would-be immigrant being held on a ship in New York Harbor while awaiting immigration approval. The mother had been authorized to temporarily leave the ship for medical treatment and subsequently gave birth in a New York hospital, meaning the child was literally born on US soil. Nonetheless, because the mother was ultimately denied entry as a member of a “prohibited class of immigrant,” the child was deemed not to have been born an American citizen, and both mother and child were deported. Significantly, the opinion distinguished this case from that of an immigrant mother who had “resided in this country a considerable time before her child was born.”
Finally, contrary to claims made by many advocates of “universal” birthright citizenship, the Supreme Court has never taken up—much less definitively resolved—the question of birthright citizenship for the US-born children of illegal or temporarily present aliens. Its 1898 decision in Wong Kim Ark v. United States was limited to the narrow holding that a child born in the United States to lawfully and permanently domiciled immigrant parents, who himself was a lawful permanent resident of the United States, was a US citizen by birth. Had Wong Kim Ark been of European descent, his status as a citizen under those circumstances would not have been questioned. But, at the time, the Chinese Exclusion Acts effectively halted Chinese immigration and prevented those Chinese immigrants already lawfully residing in the US (people like Wong Kim Ark’s parents) from becoming naturalized citizens. Wong Kim Ark’s holding is therefore undoubtedly consistent with even the more limited, allegiance-based understanding of the Citizenship Clause, which was intended to prevent this very scenario of permanent race-based alienage for the descendants of African slaves.
Wong Kim Ark does not, however, stand for the premise that all US-born children of all immigrants (including those residing here illegally or with temporary visas) are similarly entitled to birthright citizenship. And while the majority opinion did, at times, dedicate itself to an analysis of the common law rule, its more forceful argument was centered on the unfair way in which principles of citizenship and naturalization had been applied to Chinese immigrants compared to European and African immigrants. More importantly, the Court repeatedly emphasized the lawful and permanent domicile of Wong Kim Ark’s parents, factors that are utterly irrelevant under the common law rule. In this sense, the fairest rendering of Wong Kim Ark is that the Court at best adopted an “Americanized” jus soli with parameters essentially no broader than the original allegiance-based meaning of the Citizenship Clause.
Indeed, this is precisely how many contemporary scholars understood the Court’s holding in Wong Kim Ark, as well. For example, in the immediate aftermath of the decision, the Yale Law Journal acknowledged that the Court failed to adopt the fullest extent of jus soli and instead invoked an Americanized concept of common law that upheld the right of expatriation and made allegiance dependent upon permanent domicile as opposed to mere temporary presence. This view was so prevalent that it was articulated by none other than Henry Campbell Black (of Black’s Law Dictionary fame) in various post-Wong Kim Ark editions of his Handbook of American Constitutional Law.
It is not clear when, exactly, this original public meaning of the Fourteenth Amendment gave way to the modern consensus about jus soli and universal birthright citizenship. But at some point during the final two-thirds of the twentieth century, a different and ahistorical narrative about the Citizenship Clause cemented itself into the American mind. It was not the first time the legal world so completely buried the original public meaning of a Constitutional Amendment in favor of alternative narrative—just look at the shock to the system caused by the Supreme Court’s reinvocation of the clear historical meaning of the right to keep and bear arms. To modern critics, those of us who advocate for a return to the original and more limited interpretation of birthright citizenship may be nothing more than a handful of contrarian morons. But, historically speaking, we are in very good company.