Immigration Article of the Day: Birthright Citizenship Requires Parental Allegiance to the United States: The Meaning of “Subject to its Jurisdiction” in the Fourteenth Amendment by Stephen P. Holbrook
Birthright Citizenship Requires Parental Allegiance to the United States: The Meaning of “Subject to its Jurisdiction” in the Fourteenth Amendment by Stephen P. Holbrook
Abstract
The Fourteenth Amendment provides in part that “All persons born … in the United States and subject to the jurisdiction thereof, are citizens of the United States….” Textually, being “subject to the jurisdiction” must mean something more than being born here.
It has been argued that the jurisdictional phrase was intended to apply only to children born of ambassadors or members of invading armies, but it was unnecessary to include the phrase for that purpose because the law of nations had exempted those categories from birth-right citizenship long before the Amendment’s adoption. That reading would render the element of being subject to U.S. jurisdiction virtually meaningless.
The Clause’s primary and immediate purpose was to recognize the freed slaves as citizens. The Civil Rights Act of 1866 defined persons born here as citizens if they were “not subject to any foreign power, excluding Indians not taxed….” Unless naturalized, aliens and their offspring born in the United States who were subject to a foreign power were not citizens under this definition.
The Fourteenth Amendment was proposed in 1866 to constitutionalize the Civil Rights Act of 1866. Under the Citizenship Clause, aliens who are not subject to the complete jurisdiction of the United States because they have an allegiance to a foreign state are not citizens. The Congressional debates make clear the overriding purpose of the Clause to declare former slaves to be citizens, and also demonstrate that being “subject to the jurisdiction” excludes children born here of aliens, temporary visitors, and others if they are not lawfully and permanently domiciled in the United States.
Enacted in 1868 a day before the Fourteenth Amendment was certified as being ratified, the federal Expatriation Act further informs the meaning of the Citizenship Clause by rejecting the feudal concept of being a birth-place subject under the English common law. The Act recognized the right to expatriate oneself from loyalty to the sovereign where one was born and to become a citizen of another sovereign, with its consent.
Simultaneously, China and the United States signed the Burlingame-Seward Treaty, which further rejected the English common law by recognizing the “inalienable right of man to change his home and allegiance,” while adding that nothing in the accord conferred naturalization on a subject of China in the United States.
The Supreme Court noted in dicta in the Slaughter-House Cases (1872) that the phrase “subject to its jurisdiction” excluded from citizenship “children of … citizens or subjects of foreign States born within the United States.” That was followed by Elk v. Wilkins (1884), which held that “all persons … born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside.”
In United States v. Wong Kim Ark (1898), the Court concluded that the Fourteenth Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens….” The Court thus held that citizenship accrued to a child born in the United States of Chinese parents who “have a permanent domicile and residence in the United States, and are there carrying on business….” The holding applies only to those born of resident parents lawfully domiciled here. This case remains the Supreme Court’s last word on the Citizenship Clause.
Given current litigation, the Supreme Court will have an opportunity to review and clarify its precedents and to engage the original public understanding of the Citizenship Clause. Based on the text and that understanding, the Court should read “subject to the jurisdiction” of the United States to exclude from citizenship a child born here if the mother was unlawfully present or was lawfully present but only temporarily, and the father was not a citizen or a lawful permanent resident at the time of the birth.
