The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In this post I'll consider the original meaning of the second requirement of the Constitution's citizenship clause: that a person be born "subject to the jurisdiction" of the United States. (More detailed discussion and citations can be found in Part II.B of my forthcoming article.)
As noted in my introductory post, writers such as John Eastman and Michael Anton claim the original meaning of "subject to the jurisdiction" excludes from citizenship the U.S.-born children of temporary visitors and undocumented migrants (and, perhaps, of all alien parents). I think they're clearly mistaken.
I'll start with a methodological point. Much past debate on this subject has focused on parsing the clause's drafting debates or speculating about the drafters' intent. These matters may be worth considering, but they shouldn't be the starting point. Instead, we should start with the text and with the contemporaneous meaning of the key phrase.
The citizenship clause's text begins, as discussed in my prior post, with the requirement of birth "in the United States." It then adds the further requirement of birth "subject to the jurisdiction" of the United States. So our inquiry is framed as: in the nineteenth century language and context in which the clause was written, who was in the United States yet not subject to its jurisdiction?
As with the first part of the clause, Chief Justice Marshall provides a good beginning. In Schooner Exchange v. McFaddon (1812), writing for the Court, Marshall discussed "a nation's jurisdiction," which he equated with national sovereign authority. Generally, Marshall said, a nation had jurisdiction over all people and things within its territory. But there were three exceptions, which he listed: foreign sovereigns themselves, foreign ambassadors and foreign armies. These exception apart, though, Marshall emphasized that aliens within sovereign territory were otherwise "amenable to the jurisdiction" of the United States (meaning governed by U.S. law).
Henry Wheaton, the leading nineteenth-century American writer on international law, described national jurisdiction in a similar way, using the phrase "subject to the jurisdiction." Ordinarily, Wheaton wrote in Elements of International Law (1836), a nation had "jurisdiction," meaning "sovereign power of municipal legislation," within its territory. But, he continued, foreign ambassadors and their households had diplomatic immunity under international law and so were "excluded from the local jurisdiction." Immunity thus was an exception from the territorial jurisdiction to which they, as aliens within sovereign territory, would otherwise be subject.
There was another category of people described in the nineteenth century as in the United States but not subject to U.S. jurisdiction: tribal Native Americans. This sounds odd to modern ears because the U.S. claimed ultimate authority over the tribes. But the U.S. commonly (at the time) entered into treaties guaranteeing tribes authority over internal matters, including governance of tribal members. Some treaties expressly referred to tribal "jurisdiction." And key nineteenth-century writers such as James Kent described the situation (in Goodell v. Jackson, 1823): "Though born within our territorial limits, the Indians are considered as born under the jurisdiction of their tribes."
The nineteenth-century idea of national jurisdiction was interrelated with citizenship law. Prior to the Fourteenth Amendment, citizenship law was mostly common law, and U.S. common law tracked the British principle of jus soli (birth within sovereign territory). A longstanding exception to jus soli citizenship was the children of diplomatic households, who were not U.S. citizens although born in U.S. territory. A similar exception existed (in theory) for children of foreign armies, again arising from their exclusion from U.S. jurisdiction; Justice Story, for example, directly linked these ideas in describing citizenship law in Inglis v. Trustees of Sailor's Snug Harbor (1830). And likewise, Native Americans were not treated as citizens if they were born within tribal society because, as Kent explained in the passage quoted above, they were under the jurisdiction of the tribes, not the jurisdiction of the United States.
Also consistent with the idea of jurisdiction, the U.S.-born children of aliens (other than diplomats and armies) were considered U.S. citizens. In McCreery's Lessee v. Somerville (1824), for example, the Supreme Court (per Justice Story) treated as uncontroversial the U.S. citizenship of the U.S.-born child of Irish alien parents. In Lynch v. Clarke (1844), a New York court directly held that U.S.-born children of alien temporary visitors were U.S. citizens.
Thus when the Fourteenth Amendment's drafters picked the phrase "subject to the jurisdiction," it had an established meaning that was already closely connected to citizenship. The first part of the citizenship clause ("born in the United States") adopted the territorial principle of jus soli. The second part embraced the longstanding exclusions from the jus soli principle: people in U.S. territory but nonetheless not under U.S. sovereign authority, namely diplomats, foreign armies and tribal Native Americans, who had not traditionally been born citizens.
The Senate debates, where the citizenship clause was developed, bear this out. Initially, the proposed Amendment guaranteed rights to citizens without defining citizens. Senator Wade pointed this out and suggested guaranteeing rights to all persons born in the United States. Senator Fessenden objected that some U.S.-born people were not citizens under existing law (which Wade acknowledged, mentioning ambassadors). Senator Howard then proposed the language that became the citizenship clause, describing the "subject to the jurisdiction" language as excluding children of ambassadors.
Senators next debated whether Howard's language continued the exclusion of tribal Native Americans from citizenship (which they favored). Howard said that it did, adopting the prior explanation that U.S. laws didn't extend to the tribes' internal affairs. A revision to expressly exclude tribal members was defeated as unnecessary.
Finally, the Senators considered the citizenship of U.S.-born children of aliens. Senator Cowan objected (in overtly racial terms) that the proposal would make citizens of U.S.-born children of Chinese immigrants on the West Coast. California Senator Conness (himself an Irish immigrant) agreed it would have this effect, but enthusiastically endorsed it. No Senator disagreed with the Cowan/Conness interpretation, including Howard (who wrote the clause) and Senator Trumbull (who originally introduced the proposed Amendment). Indeed, in an earlier exchange with Cowan, Trumbull said that U.S.-born children of Chinese immigrants (like all U.S.-born children of immigrants) should be considered citizens. And the Senate then adopted Howard's language without further revision.
Thus, as with the first part of the clause, the drafting history confirms the pre-drafting ordinary meaning of the relevant language. "Subject to the jurisdiction" of the U.S. meant people under U.S. sovereign authority. That included everyone within U.S. territory, excluding only foreign diplomats, foreign armies and native tribes. (As shown by the Court's decision in Fleming v. Page, discussed in my last post, it was possible to be subject to U.S. jurisdiction outside U.S. territory; anyone in this category would be excluded from citizenship by the first part of the clause).
In my next post, I'll discuss why this original meaning includes the U.S.-born children of undocumented migrants, and consider some leading counterarguments.