On the Original Legal Meaning of "Subject to the Jurisdiction Thereof"
The allegiance reading has no basis in the historical usage of this language in American law
There has been some originalist debate of late about the proper reading of the Citizenship Clause of the Fourteenth Amendment. The fate of the Trump administration's executive order excluding new categories of individuals from birthright citizenship depends to a significant degree on whether there is any historical support for the revisionist interpretation of the constitutional text. The Supreme Court is hearing oral arguments on this issue today.
One recent suggestion in support of a restrictionist reading of the Citizenship Clause is that the requirement that individuals be both born within the United States and "subject to the jurisdiction" of the United States should be understood to have an allegiance component. This "allegiance-based" reading of "subject to the jurisdiction" is said to better capture the original meaning of Fourteenth Amendment. If the allegiance-based theory is correct then the longstanding understanding of the constitutional text is wrong and the administration's executive order is somewhat more plausibly consistent with the Constitution -- and a large number of people should not properly be regarded as natural-born citizens of the United States.
In a new paper, I examine, along with a co-author (James Heilpern), whether "subject to the jurisdiction" would have had a familiar legal meaning to lawyers in the mid-nineteenth century, and if so what that original public meaning might have been. A comprehensive survey of judicial opinions, statutes, treaties, legislative debates, and legal treatises provides a clear answer to this question. These were commonly used terms with a well-known meaning in 1866 when the Fourteenth Amendment was drafted.
As a piece of legal text, "subject to the jurisdiction" was neither ambiguous nor obscure. Its meaning would have been straightforward and familiar in the community of legal interpreters charged with understanding and implementing the constitutional text, not to mention the draftsmen who incorporated this language into the Constitution.
The original public meaning of the phrase "subject to the jurisdiction" of the United States simply meant land, people, and objects within the governing authority of the United States and placed under its laws and judicial proceedings. Such jurisdiction was frequently shared and concurrent such that individuals could simultaneously be subject to the governing authority of the United States and to some other governmental power. Such jurisdiction could be triggered by a variety of factors, but the most common was simple presence within the territory governed by the United States. An individual's allegiance to the United States might well trigger extraterritorial jurisdiction when such an individual was abroad and outside the territorial jurisdiction of the United States, but allegiance was never a necessary condition to making one subject to the jurisdiction of the United States.
There are, of course, complexities about how such a legal rule might apply in particular situations, and lawyers sometimes disagreed about particular applications then as they would now. It is also possible that the drafters of the Fourteenth Amendment chose to use this conventional legal language in a very unconventional way and meant something unusual and surprising by this phrase. This paper does not explore the implications of this legal rule for Trump's executive order and does not examine the evidence for an unconventional usage in this particular case. The paper does, however, demonstrate that the 39th Congress that drafted the Fourteenth Amendment routinely used this legal language in the conventional way in other contexts.
American lawyers in 1866 would have known what "subject to the jurisdiction" of the United States meant. That original public meaning of this piece of lawyerly text is consistent with the conventional understanding of that text. The original public meaning will not be helpful to the Trump administration's case.
The new paper -- "Subject to the Jurisdiction" as Legal Text -- can be found here.