Immigration Article of the Day: Birthright Citizenship and the Draft

Birthright Citizenship and the Draft by Reuven S. Avi-Yonah

Abstract

The 14th amendment (1868) states that "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."  The question now being debated in the Supreme Court is what does "subject to the jurisdiction thereof" mean: does it mean that anyone born in the US and subject to US enforcement jurisdiction is a citizen, or does it only mean someone born in the US who owes political allegiance to the US? Contemporary sources indicate that children born to members of invading armies, children of diplomats, and Native American children were not considered citizens by birth. But that rule is not conclusive because arguably these children were not subject to enforcement jurisdiction, as well as not owing political allegiance to the US. This paper argues that the history of the draft suggests that citizenship was tied to political allegiance, not just physical presence.