Applying the Citizenship Clause's Original Meaning to Modern Controversies

The original meaning gives birthright citizenship to the U.S.-born children of undocumented migrants, even though its drafters didn't realize it would.


This is my fourth guest-post (of five) about my forthcoming article Originalism and Birthright Citizenship. My previous post concluded that the original meaning of the Fourteenth Amendment's citizenship clause, which requires birth "subject to the jurisdiction" of the United States, included people born in U.S. territory other than children of diplomats, foreign armies and (at the time) tribal Native Americans. This has implications for two modern controversies.

First, U.S-born children of aliens lawfully in the U.S. are birthright citizens under the original meaning. The Supreme Court so held in United States v. Wong Kim Ark (1898) as to children of lawful permanent residents, using an original meaning analysis similar to mine. Wong Kim Ark, limited to its facts, doesn't decide the status of children of lawful temporary visitors. But alien permanent residents and temporary visitors stand in the same position as to the relevant language: they are "subject to the jurisdiction" of the United States (that is, governed by U.S. law) to the same extent. As noted, Chief Justice Marshall specifically described U.S. jurisdiction over temporary visitors in the Schooner Exchange case, and the citizenship of the children of temporary visitors was confirmed in the 1844 New York state case Lynch v. Clarke. If the drafters had sought to exclude children of temporary visitors, they would have used different and more explicit language.

Children of aliens not lawfully present in the U.S. may seem a more difficult issue. There were essentially no such people in 1866-1868 (because there were no federal immigration laws), and there's no evidence the enactors considered the matter. How can we say the clause covers them if the enactors didn't know about them?

This objection misunderstands original meaning analysis. The inquiry isn't what the enactors thought (or would have thought) about a particular modern issue. The inquiry is (a) what rule does the enactment's original meaning establish, and (b) how does that rule resolve modern questions.

I've argued that the original meaning establishes a rule of citizenship by birth in U.S. territory, excluding people not governed by U.S. law. Applied to the question of U.S.-born children of undocumented migrants, that rule is clear. They are governed by U.S. law while in the U.S., in the same manner as other non-diplomat aliens; put another way, unlike people in diplomatic households, they have no immunity from U.S. territorial jurisdiction. That's all we need to know to apply the original meaning.

Now I'll turn to some counterarguments, starting with Peter Schuck and Rogers Smith's well-argued book Citizenship without Consent. Invoking natural law writers such as John Locke and Jean-Jacques Burlamaqui, Schuck and Smith argued that citizenship, constituting membership in a national community, arises from mutual consent of the individual and the sovereign (representing the community). And if citizenship depends on consent, only those whom the sovereign admitted to the political polity could be citizens.

While this argument may or may not be attractive as a policy matter (or as a matter of living constitutionalism), it is not an original meaning argument. It posits that children of undocumented migrants are different in their relationship to the national polity in various ways, but not that they are born outside U.S. jurisdiction, in the original meaning of that word.

A better original meaning counterargument is that the Supreme Court, four years after ratification, disagreed with me. In the Slaughter House Cases, Justice Miller wrote for the Court that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from [the clause's] operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States." Ordinarily a near-contemporaneous post-ratification interpretation would carry considerable weight.

But I don't find it persuasive here. The case had nothing to do with the citizenship clause. Miller didn't explain how he reached his conclusion, and in particular he didn't explain how the clause's text allowed it. Nor did he consider the drafting history, which as discussed seems to show the contrary. When the issue actually reached the Court in Wong Kim Ark, the Justices dismissed Miller's comment as dicta that hadn't been adequately supported. Miller wasn't the only person in the post-ratification era to take a narrow view of the clause, but other commentaries had a similar defect of not explaining how the text compelled their preferred outcome. Post-ratification commentary can be persuasive in original meaning analysis, but only when it provides an explanation of the meaning, not when it simply claims a result.

Modern scholars such as John Eastman and Michael Anton have attempted an explanation of the original meaning based on an idea of partial versus complete or exclusive jurisdiction. In a recent essay, Eastman argues that the clause "meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily in the United States." His earlier writing connects this distinction to the idea of allegiance: jurisdiction arose from allegiance, and aliens owe their principal allegiance to their home countries, not the U.S. Similarly, Anton argues that the clause requires a person to be subject to exclusive U.S. jurisdiction (which U.S.-born children of aliens typically are not).

I think these arguments fail on at least two grounds. First, they add words to the clause or invent distinctions that aren't supported in pre-enactment usage. Anton is right that aliens aren't subject to exclusive U.S. jurisdiction, but the clause doesn't require exclusive jurisdiction. Aliens in the U.S. (other than diplomats and armies) are subject to concurrent jurisdiction of the U.S. and their home countries. Eastman is right that jurisdiction could arise either permanently from membership in a nation or temporarily from presence in sovereign territory. But the clause doesn't distinguish between the two sources of jurisdiction. Eastman and Anton want to rewrite the clause to capture a distinction it doesn't contain.

The Eastman/Anton argument is problematic for another reason. Though focused on temporary visitors and undocumented migrants, it would (as I think they concede) also exclude U.S.-born children of alien permanent residents. But before the Fourteenth Amendment, these children were U.S. citizens under common law. The clause's drafters repeatedly claimed their proposal constitutionalized existing law, and it's hard to understand why they would have endorsed such a sharp departure. Moreover, as I've discussed, this issue came up in the drafting debates in the exchange between Senators Conness and Cowan, who both declared that the clause covered U.S.-born children of Chinese immigrants (see here, pp. 2890-91). No Senator disputed that reading.

Anton and Eastman offer some general statements from the drafting history in support. (I discuss them in detail in Part II.B of the article). At best, they are subject to varying interpretations, and in any event don't overcome the central propositions that (a) the clause's text says "jurisdiction" without limits to type of jurisdiction and (b) the drafters understood the language to include U.S.-born children of immigrants. These points confirm the original meaning I've outlined: that everyone born in U.S. territory is "subject to the jurisdiction" of the U.S. in the clause's meaning, except those who had immunity from U.S. law.

All this does, though, is to establish the original meaning. It does not say we should follow the original meaning. In my next post, I'll take up that question in the context of the citizenship clause. Specifically, if the clause's enactors didn't realize that the clause would guarantee citizenship to children of undocumented migrants (or to children born in overseas territories), why should we (even if we are originalists) feel bound to that result today?

NEXT: Today in Supreme Court History: October 29, 1942

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  1. Again, what is the reasoning behind exempting foreign military? Is it that they are akin to diplomatic personnel, or is it that they do not submit to a country’s jurisdiction?

    1. I didn’t follow the previous kerfuffles over this question, so here’s an answer just for fun; I don’t stand by it, I don’t stand opposed to it, and I’m not even playing devil’s advocate.

      Invading armies are not subject to US jurisdiction precisely because they are sighting the government. I suppose this is your second option.

      Does this apply to foreign military here as guests? Training, for instance. Attending school is different, because they are here as students, not as armies. Going to a military school (various war colleges) blurs the distinction. Then there was that Saudi pilot-in-training who shot up a base earlier this year; I think he was shot and killed, but I do not remember. What would have happened if they had captured him alive?

      Thus prisoners of war ARE subject to US jurisdiction, because they plainly are. Thus is a female POW has a baby, that baby should be a US citizen, eh?

      It’s an interesting question, and a shame everyone just made fun of it or sneered at it or insulted you over it. Shows their partisan stupidity more than anything. Would be nice if the author would wade in.

      1. “It’s an interesting question, and a shame everyone just made fun of it or sneered at it or insulted you over it. Shows their partisan stupidity more than anything. Would be nice if the author would wade in.”

        No, the reason people make fun of Brett for his insistence on this point is because he doesn’t want to know the answer to any interesting questions.

        It’s issues like this that give lie to the majority of originalist “support.” People like Brett don’t support originalism because of any real adherence to a theory of jurisprudence; instead, it’s just a rhetorical hammer used against people they disagree with (often with a soupcon of “penumbras and emanations” thrown in). The support it entirely about getting the results he wants, with a side of “if you don’t like it, pass an amendment.”

        So, here’s the thing. We have something which is both pretty obvious from both an originalist (public meaning) standpoint as well as being the settled law for quite some time! In other words, textualism, stare decisis, and originalism all compel the same meaning. Which is very inconvenient for someone like Brett (and Stephen Miller). Because, well, as Brett knows- amendment are difficult to pass, aren’t they?

        So instead, he’d like to develop a two-step. First, he wants someone to explain to him the concept of invading armies (hint- there’s an article you can read that is linked-to, and it has citations; you can also look up other articles). But he doesn’t really want to know, he just wants to be able to say that those “Gosh, those illegal immigrants, who come here individually for their own reasons, usually to either make money or escape persecution, they are really an invading army subject to a foreign sovereign, and therefore I totally can penumbra and emenate my originalism.”

        Or something.

        1. That’s exactly it.

          The key point is this- we actually don’t have any caselaw on invading armies, because there haven’t been any. If the US ever gets invaded, we can litigate that. Heck, in the 19th century, the notion of an invading army including a pregnant or fertile woman was unheard of. And I don’t think anyone doubts if an invading soldier hooks up with an American woman who gives birth here, the child is a citizen.

          So we don’t actually know that foreign armies aren’t covered. We just have a statement that they aren’t.

          Meanwhile it is perfectly clear that illegal immigrants are subject to our jurisdiction. It has nothing to do with the foreign army question.

          1. Seems to me the British invaded during the War of 1812.

            1. And yet for some reason, no one invoked the fourteenth amendment during that entire war!

              1. They must have had some sloppily non-prescient lawyers back then.

      2. “Thus prisoners of war ARE subject to US jurisdiction, because they plainly are.”

        This is not true. As a matter of international treaties on the rules of war, prisoners of war can NOT be subject to criminal prosecution.

        1. Shooting from the cuff, that’s actually why the US gov. likes places like Guantanemo. Because by keeping certain kinds of prisoners outside the US (and outside US court jurisdictions) we don’t have to acknowledge the rights they would have if they were inside the US.

          1. That was definitely John Yoo’s plan. He didn’t expect SCOTUS to rule you couldn’t do that.

            1. I have come across several government employees alleging the Bush administration pressured CIA interrogators to use torture to elicit false confessions tying Saddam to 9/11 from detainees…that is exponentially worse than anything Trump has done as president.

              1. Pet peeve:
                “exponentially worse” is a meaningless expression. All you meant was grossly worse,
                The ignorant use of “exponentially” should be avoided.

                1. You seriously don’t have an opinion on an American president attempting to elicit false confessions in order to sell an asinine war?? Employing torture only make it slightly worse because offering a detainee a puppy to lie to sell your asinine war is still a clear abuse of power/impeachable offense.

          2. The protections in the Geneva Convention on the Rules of War for prisoners of war only apply to uniformed soldiers of a recognized military.

            Under the Geneva convention, non-uniformed combatants can be summarily executed in the field on the concurrence of any two officers.

            The point of the latter is to protect civilian populations in a war zone by preventing soldiers from hiding among the civilians.

            I wonder which of the two above categories the prisoners at Guantanamo fell into? I pretty sure it was the second.

            1. That’s not really right. That’s the extreme position some Bush Administration officials took in the wake of 9/11, but the actual state of international law is that there are disputes as to what protection ununiformed or irregular combatants get.

              There’s no doubt that a true unlawful combatant, like a saboteur or a spy, may be dealt under the laws of war through very summary processes (though national law may provide them with more protections), but spies and saboteurs are different than “anyone who doesn’t wear an identifiable insignia”.

        2. prisoners of war can NOT be subject to criminal prosecution

          They can’t be prosecuted under civilian law, but they can be prosecuted under treaty-based and traditional laws of war. The Geneva Conventions provide that POWs are subject to the same military justice that their captors apply to their own soldiers.

          1. Thank you for saving us, Captain Pedantic! What would we do without you?

    2. Brett,

      You got a lot of answers in the previous thread.

      They are not invaders.

      They are not “Indians not taxed.”

      They are, whether you like it or not, residents of the United States.

    3. I think Ramsey made it clear it is the latter.

    4. They’re akin to diplomatic personnel in that their status is addressed by interventional law. Hanging a POW for “murdering” a friendly soldier on the battlefield would be a war crime.

    5. So weigh in on Pittsburgh Steeler Villanueva…do you think he simply gave the SS Office his American birth certificate without telling them why his Spanish parents happened to be in America when he was born??

    6. This was answered yesterday, so I’m not sure why you’re asking again. The reference to foreign armies is not to invaders, but to armies passing through with the consent of the government. So it’s similar, but not identical, to diplomatic personnel.

      1. So why is Pittsburgh Steeler Villanueva a citizen??

  2. Don’t the words ‘subject to’ require, some fore-knowledge you actually exist here? Resident Aliens etc, we know they are here. Someone entering illegally, not until apprehended. Even then, who are they? Fake names, aliases and fraudulent ID’s abound. Which alias is ‘subject to’ ?

    1. The article talks about jurisdiction based upon being present in sovereign territory.

      That seems like enough. Isn’t an undocumented alien subject to U.S. criminal jurisdiction for crimes committed in the U.S. prior to official recognition of presence?

    2. The large numbers of slaves and descendants of slaves made citizens by the 14A included many people not named in any registry.

    3. I think all it requires is the ability to prosecute once discovered. If a child born on US soil was born at home instead of a hospital, they’re still subject to US jurisdiction even if the government isn’t told about it (might make it more difficult to get a social security number, but that’s a separate issue).

      1. If they were Black up until the last few decades they would just have to point at their face and say “why the FUCK would I come to this racist motherfuckin’ nation if I wasn’t born here motherfucker???? Now give me my damn SS# so I can pay the MAN just to die at 63!! Fuckin’ white devils!!”

    4. Don’t the words ‘subject to’ require, some fore-knowledge you actually exist here?


      Even when you don’t get a baby a birth certificate or social security number (or any other government tracking info), they’re still subject to US law and US citizens, with all the rights, responsibilities and priviledges that entails.

      They’ll probably run into bureaucratic trouble at some point due to the lack of proper documentation, but there’s not much controversy on whether or not you stop being a US citizen just because your parents decided to have a home-birth and then not get a birth certificate.

  3. On the question of partial jurisdiction: Aren’t diplomats in the United States today under some jurisdiction of our country? (For example, if they commit a murder.) Does this mean that children of diplomats born in the United States today are citizens?

    1. Diplomatic immunity generally needs to be waived.

    2. As I understand Ramsey’s argument, they are not because there is a class of acts for which the US has no jurisdiction.

    3. About the only thing he US can do is ask that diplomatic immunity be waived or send them home.

    4. On the question of partial jurisdiction: Aren’t diplomats in the United States today under some jurisdiction of our country? (For example, if they commit a murder.)

      No. Most civilized countries will wave diplomatic immunity or undertake to punish the diplomat themselves if there’s evidence they committed a serious crime, but if not the most we can do is expel them from the country.

      1. but if not the most we can do is expel them from the country.

        Tell that to Danny Glover.

    5. Under current law, the children of “foreign diplomatic officers” born in the US are not considered citizens, even though “foreign diplomatic officers” as defined by current law includes career consular officials, who do not have “diplomatic immunity”, but only “consular immunity”.

      While diplomatic immunity applies to all crimes, consular immunity explicitly does not apply in cases of felony, as was highlighted in the 2013 Devyani Khobragade incident regarding visa fraud related to a failure to pay a maid the US minimum wage.

    6. The baseline is immunity, but it can be adjusted by agreement.

  4. Professor Ramsey,

    How would you classify the 9/11 hijackers? Let’s posit a hypothetical where one of them was male and one female and they had a child while they were in the US at a flight school training for the hijacking.

    Both by a functional analysis, and also by Congress’ use of force resolution, the 9/11 were a sufficiently strong organized force to be classified as an invading army, yet they entered the US disguised as civilians and (falsely) claimed to subject themselves to our jurisdiction.

    A second example would be children of spies. Is simply being an agent or member of an organized hostile force, even a lone one, sufficient? Or does the force have to actually occupy US territory and prevent US jurisdiction from being exercised?

    I understand that e.g. security detachments of embassies and visiting dignitaries would not be subject to US jurisdiction as a matter of diplomatic courtesy. I also understand that traditional military invasions and such prevent US jurisdiction from applying in territory they occupy. But what about small-scale military invasions, members of foreign informal or NGO military forces, like Al Qaeda, spy cells, etc. who use guerilla-like tactics and are definitely hostile, neither diplomatic nor courteous?

    Would it depend on specific events or declarations on the US’s part, e.g. the use of force resolution for Al Qaeda, or perhaps if martial law had been declared in NYC (e.g. legal jurisdiction formally suspended), as was being considered at the time? Or does simply being in the country as an agent of an organized armed foreign force on a mission of destruction and hostility against the US government count?

    1. Personally I think the right answer is spies are obviously subject to our jurisdiction, lawful combatants might not be, but we can worry about that after we are invaded by an army.

      1. I think 6 actual Nazi spies and saboteurs were executed during WWII.

    2. I think the child of unlawful combatants are US citizens. An example would be children of spies would be citizens because their parents were subject to US jurisdiction (absent diplomatic immunity). The parents could be tried for espionage, but their children would still be US citizens.

    3. Since you seem to have forgotten, civil court systems in the US have a better track record of prosecuting terrorists then military courts have.

      Recognizing rights isn’t at-odds with handling terrorism. Anyone that tries to argue otherwise either wants to do something illegal, is lazy, or both.

      1. One of the weirder parts of the post-9/11 debates was this notion of “they don’t DESERVE due process”. As if due process is just a favor we give out to people we like, rather than the way we actually determine if the things the government is claiming about a person are true.

  5. A second question. What if about a child born of a foreign invader and a US citizen?

    In the 19th century, citizenship passed through the father, and only men could be soldiers, so this would be an easy question. But we’re not in the 19th century anymore.

    Would the circumstances matter? Do both parents have to be members of the invading army? Only one? It depends? If it depends, what does it depend on? Would it matter whether the US citizen had a voluntary relationship with the invading soldier, or was raped?

    1. “Would the circumstances matter? Do both parents have to be members of the invading army? Only one? It depends? If it depends, what does it depend on? Would it matter whether the US citizen had a voluntary relationship with the invading soldier, or was raped?”

      This is why courts do not answer hypotheticals.

      The next time America is invaded by the foreign army, and this comes up, perhaps we can have an answer.

      1. Sir, this is a Wendy’s law blog.

        1. Sure, but Loki is still right. The purpose of the legal system is to get the important questions answered. It doesn’t have to provide a comprehensive answer to every wild hypothetical.

          1. I took ReaderY to be asking “what do you guys think the right answer is?” rather than “why hasn’t a court answered this question yet?” I agree that I don’t what a district judge in North Dakota musing about it in the Federal Supplement, but it seems weird to dunk on someone for thinking about how the law would apply to a hypothetical case on a law blog.

            1. There’s nothing wrong with trying to answer hypotheticals. The problem is that people are taking the lack of answers to certain hypotheticals as some sort of concession that we don’t actually know what “subject to jurisdiction” means, when we do and we know it doesn’t mean undocumented immigrants. In other words, it’s a lot more sinister than just posing hypotheticals.

    2. I mean, the answer is very simple because US law automatically passes citizenship if the mother is a US citizen. I think I could use a cite that citizenship is only passed through the father, though, because I’m not sure that’s the case in the US. Given that slave status is passed through the mother (different circumstances, admittedly), I don’t think patrilineal citizenship should be assumed. I also know that citizenship law in the 20th Century concerning US citizens born abroad automatically applied citizenship to children of a citizen mother but only applied it to fathers if they established a paternal relationship.

      1. But that’s a statutory policy decision, which congress could modify or revoke at its pleasure.

        1. Right, but if we’re talking about our understanding at the time of the 14th Amendment, I don’t think patrilineal citizenship was ever assumed. I think the rule most consistent with history would be that the mother of the child has to be subject to the jurisdiction of the United States.

  6. A bit of research finds that the issue of “illegal immigrants” arose in the 1800s when Metis settled across the Northwest. They were not Tribal Indians although sometimes treated equivalently. Families could consist of every combination of born in the US, born in Canada, born in Europe, Tribal Indian by birth. Additional research will certainly yield official US government documents and rulings.
    One topic discussed in the above article which strikes me : Some Metis groups viewed themselves as an independent body with no inclination to be US citizens. Imagine a US court case in 1800 which ruled that the US government could force Metis to become citizens over their objection!
    Interesting background citation follows. Many more available including low level US government officials writing that Metis could not acquire citizenship.

    “Just Following the Buffalo”: Origins of a Montana Métis
    Martha Harroun Foster
    Middle Tennessee State University

    1. More…. persons not belonging to a Tribe recognized by the US government:
      “Without federal recognition, they were without legal standing as citizens, without a land on which to live, and unable to qualify as homesteaders. There were instances of the Little Shell Chippewa being rounded up by the United States military and deported to Canada.”

      page 71

      Montana Indians
      Their History and Location
      Division of Indian Education
      Montana Office of Public Instruction

  7. So, did they just take down the open thread?

    1. I was wondering that myself!

      Which is weird, because it seemed …. really restrained. Did I miss something?

      1. That’s what I was thinking; It was going unusually well. Then I hit post on a comment, and get 404.

  8. I incorporate by reference my comments on the previous thread. Ramsey makes a good argument, perhaps the best argument for his viewpoint, yet his case isn’t overall convincing.

    “I’ve argued that the original meaning establishes a rule of citizenship by birth in U.S. territory, excluding people not governed by U.S. law.”

    Except Native Americans would have been subject to some US laws when not within their tribal territories, and even within those territories in the event Congress exercised its prerogative to extend more regulatory jurisdiction over them within their territories.

    Yet they were not subject to the “jurisdiction” of the US in the citizenship law-related sense of the word, because that was a “full and complete” jurisdiction as Howard described it, or as Trumbull put it “They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.”

    1. Under McGirt, Indians enjoy some immunities even now.

      1. And the point is, your racist project does not involve granting ANY immunities to undocumented immigrants.

        Want to grant them immunities? Fine, we’ll talk then.

        1. You can do better than calling people racist when they disagree with you. My only “project” is being interested in the meaning of the citizenship clause. If you want to know what I think purely about immigration policy, I wouldn’t deny citizenship to anyone born here of parents settled here long term, even if “illegal.” Basically, I would just exclude tourists and a few that hop over and then give birth. I do think, along with the vast majority of Americans, that illegal immigration should be ended. And significantly, it wouldn’t even be very hard to do. The fact that it would be technically relatively easy to stop most illegal immigration only proves that we’ve all but invited the massive waves that have happened. Now, perhaps that was done without the approval of the electorate and is illegitimate in a sense, but it was done nonetheless, and people who have lived here for many years and settled down have reliance interests and, going back to the legal issue, I would say they are probably “subject to the jurisdiction” in any event. I also think it is important to put the economic interests of American citizens, particularly the working class, before the interests of would-be immigrants and business interests that profit from high levels of immigration. But I’m not reductionist about this. There are broad economic benefits to immigration at some level. The key is to pay attention to the distribution of those benefits, because at a certain level they are massive but concentrated in a small minority. But even just with illegal immigration, there are many illegals here who are skilled laborers or even just hard workers that are valuable to the economy, and it doesn’t make sense to kick them out no matter how you look at it. I know quite a few of their families personally. Also was thinking about this when I hired a construction crew a few weeks ago.

          1. You think illegal immigration is the cause of many woes that it has been demonstrated to you many times it is not.
            You cling to single sources that are largely disputed to maintain this narrative you are very attached to.

            You also evince personal animus to this group, who you do not know or really bother to understand.

            Your bromide about distribution of benefits and skilled labor flies in the fact of the blanket policies you advocate, and your past statements lamenting the nonsense that illegals get treated better than citizens.

            1. Hey Sarcastro. Hope you’re having a good day.

          2. I don’t call people racist because they disagree with me.

            I call people racist when they make bad arguments that only racists make.

            Looking at “subject to jurisdiction”, which is clearly NOT about undocumented immigrants, and going “AHA, this is the tool I am going to use to punish people because their parents crossed the border before they were born” is a place you can only get to with racism.

            1. I have no intention to punish anyone. And I agree that the clause is not about undocumented immigrants.

    2. Apparently, Ramsey believes they have to be subject to all US laws, even if the are concurrently subject to a foreign jurisdiction.

    3. Except Native Americans would have been subject to some US laws when not within their tribal territories, and even within those territories in the event Congress exercised its prerogative to extend more regulatory jurisdiction over them within their territories.

      So wouldn’t that explain why the amendment adds a special exception for them?

      1. You mean “subject to the jurisdiction thereof”? Yes we’re talking about what that means, and it’s not just “subject to US laws.” The ratification debates explain it fairly clearly, though admittedly the implications are a bit foggy.

      2. Disregard this comment, I misread what I was responding to.

    4. The jurisdiction of the United States over American Indians was a creature of the relationship between the US and the tribes, just like the jurisdiction of the US over resident diplomats (few of whom have absolute immunity) was a creature of agreements with the accrediting country and international law.

      This isn’t that hard.

  9. “The clause’s drafters repeatedly claimed their proposal constitutionalized existing law”

    Meaning the 1866 Civil Rights Act. They made that extremely clear.

  10. An invasion is lawful if it relies upon fornication? While I do follow the logic, I’m not certain that the Constitution was intended to lead to such absurd conclusions: it should not be true that an invasion of ejaculators can, over time, be more devastating to the nation than an invasion of gunmen.

    1. This is what happens when nobody taught you the difference between metaphors and reality

    2. Wow, a real life example of “the gun is good; the penis is bad”.

  11. Subject to the jurisdiction thereof is best understood as “can they be drafted, can they vote, can they serve on juries, can they hold office.” People here illegally are also subject to deportation which means they are outside the jurisdiction that protects citizens or those here with other legal status.

    1. You pulled that definition out of your behind. “Jurisdiction” has an actual meaning involving courts and summonses and binding authority. You can’t just make it mean anything in order to hate on Brown people.

    2. Subject to jurisdiction means they’re subject to the government’s power. First off, that would include the power to deport someone. Second, you’re conflating the rights of citizenship with being subject to jurisdiction. Third, you aren’t addressing the issue of those lawfully here but not citizens (who it was undisputed during the drafting process that their children would be citizens). Fourth, this doesn’t even address former slaves (even the most minimalist would have thought the 14th Amendment was intended to overturn Dred Scott). They weren’t eligible to be drafted, weren’t guaranteed to vote until the 15th Amendment, couldn’t necessarily hold office or serve on juries.

      I don’t see how your reasoning can be squared with the history or understanding of jurisdiction.

    3. This seems to be supported by the ratification debates.

    4. That seems fairly self-evidently untrue, since women and children couldn’t do any of those things and yet were unquestionably considered citizens.

    5. With the exception of being drafted, all of those require you to be a citizen. So basically your argument boils down to “only citizens can be citizens,” which is clearly an absurd interpretation entirely disconnected from reality

    6. This is a circular argument. No one is questioning individuals born outside the US. It isn’t the parent’s citizenship at issue but the child born on US soil. If they are citizens they are subject to those things, if they aren’t citizens they aren’t. So your definition, which is wrong anyway, is also irrelevant.

  12. A more general point. The people looking to deny birthright citizenship love these statements about the allegiances and obligations of newborn infants, but isn’t the Citizenship Clause of the 14A really about the country’s obligations to those born here? We used to fail to give basic rights to a large group of people who were born here. The point of the clause was to say “we have an obligation to everyone born here, even if there’s some law lying around purporting to declare them a non-person”. “Subject to jurisdiction” is just an obligation that there might be some small groups of people where we don’t actually have the authority to make them citizens, because of diplomatic agreements or the like.

  13. Does anyone remember 15 years ago or so when Prof. Volokh hosted the blogger who tore apart Michelle Malkin’s “In Defense of Internment”?

    As I recall, there was one commenter who came here and played the ML role, posting long screeds of purported information about how Japan supposedly had tens of thousands of spies and sabatours in the US during WW2 and that the only possible policy option was concentration camps. And the rest of us had to just fence that guy off eventually.

  14. Leave it to a lawyer to complicate a rather simple question. The clause was meant to leave no doubts that former slaves born within the United States were citizens and that States could not impose additional citizenship requirements (which it was thought at the time States had the power to do.) It was never intended to be a birthright citizenship clause or it would have just come right out and said it. It was never intended to cover any illegal who stumbles across the border and gives birth. Almost no other country in the world has birthright citizenship and there is a very good reason for that. Our Founders and the drafters of the 14th Amendment never intended for that either.

    1. It was never intended to be a birthright citizenship clause or it would have just come right out and said it
      Dude – All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

      You know what it doesn’t say? “former slaves born within the United States are citizens.”

      You make a bunch of statements here that from what I can tell come right out of your hat. It goes against the text, and it goes against contemporaneous sources.

      1. I know you aren’t stupid Sarcastro so why do you act like it. What do you think, “subject to the jurisdiction” means? God you are really bad at this.

        1. We’ve told you a million times. It’s obvious what it means, and it’s just as obvious that it doesn’t negate a general rule of birthright citizenship, it just exempts a couple of narrow groups of people.

          You don’t like it because when you find out you can’t treat all those innocent Brown children born here as second class persons to punish their parents for seeking a better life here, it makes you lose your woody. But Sarcastro’s still right.

  15. An intelligent analysis in an 1871 Federal case challenging denial of voting rights. The judge understands the issues which concern us 150 years later in 2020.
    “The plaintiff being the child of an unnaturalized alien, and unnaturalized himself, cannot claim to be an American citizen, except upon the single ground, that he was born
    upon the soil, and subject to the jurisdiction of the United States.” ….
    “The case turns upon the single point—was the plaintiff born subject to the jurisdiction of the United States—under its allegiance?”

    The court’s ruling was no. Mother was Native American and not subject to jurisdiction of US. “On the other hand, if the plaintiff is held to follow the condition of his father he is a Canadian of mixed blood, born in the allegiance of the British crown, and therefore a British subject.”
    Treaties may or may not be relevant, you may decide. Allegiance does appear to be central to the ruling.

    McKay v. Campbell, 16 Fed. Cas. 11, D. Oregon

    1. The crucial fact you omitted is that in 1823 the Oregon Country was jointly occupied by the United States and Great Britain, according to the terms of a treaty of 1818. And so the court reasoned

      When it is said that by the common law a person born of alien parents, and in the allegiance of the United States, is born a citizen thereof, it is necessarily understood that he is not only born on soil over which the United States has or claims jurisdiction, but that such jurisdiction for the time being is both actual and exclusive, so that such person is in fact born within the power, protection and obedience of the United States. Generally speaking, the various places in the world are claimed, or admitted for the time being, to be under the exclusive jurisdiction of some particular sovereign or government, so that a person born at any one of them is without doubt born in the allegiance of such particular sovereign or government. But that is not this case—which in this respect is a singular one. Its parallel has not been found in the books. The country of the plaintiff’s birth was, at the time thereof, jointly occupied by the citizens and subjects of two governments in pursuance of a treaty to that effect. Under the circumstances, neither government can be considered as exercising general exclusive jurisdiction over the country and its inhabitants. It seems to me, that the only practical and just solution of the problem, is to consider the country for the time being, only to have been in the exclusive jurisdiction of each government as to its own citizens or subjects

      Duplicate those circumstances and you might get the same result today.

      1. Quoting Ramsey: “Anton is right that aliens aren’t subject to exclusive U.S. jurisdiction, but the clause doesn’t require exclusive jurisdiction. Aliens in the U.S. (other than diplomats and armies) are subject to concurrent jurisdiction of the U.S. and their home countries. Eastman is right that jurisdiction could arise either permanently from membership in a nation or temporarily from presence in sovereign territory. But the clause doesn’t distinguish between the two sources of jurisdiction. Eastman and Anton want to rewrite the clause to capture a distinction it doesn’t contain.”

        Ramsey’s language may be too loose to take account of the described facts?

        The opinion, however, offers more insight into the judicial thinking and concerns at the time than educated guessing. Many would find the reasoning persuasive: “The case turns upon the single point—was the plaintiff born subject to the jurisdiction of the United States—under its allegiance?”

        1. I find the reasoning persuasive to resolve the citizenship of someone born in jointly occupied territory, and if that situation comes up again we have this precedent to look to. But as the opinion says, if the US claims exclusive territorial jurisdiction over a place then anyone born there is “is without doubt born in the allegiance of such particular sovereign or government”.

    2. So some 1871 District Court case in Oregon got the issue all wrong, and we’re supposed to pay attention to that rather than the Supreme Court in Wong Kim Ark?

  16. Based on that teaser, I wonder if the learned commentator really will manipulate the rather clear history of the debate on the Fourteenth Amendment, or whether he’s just overpromising to suck in the clingers like Brett to the last installment.

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