Introduction
The Citizenship Clause of the Fourteenth Amendment defines natural-born citizens as “[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof.” Although what it means to be born “in the United States” is fairly straightforward, the second qualification for citizenship status is much less clear. The question of what “subject to the jurisdiction thereof” means is now hotly contested.
The implications of the meaning of this phrase are significant. President Donald Trump’s Executive Order 14160 purports to exclude from the scope of birthright citizenship the children born in the United States to parents who are undocumented aliens or who are present in the United States on only a temporary basis. The lawfulness of the Order depends on the claim that those born to alien parents in those circumstances are not actually “subject to the jurisdiction” of the United States and thus outside the scope of the Citizenship Clause. Potentially, children born in the United States of alien parents in a wider range of other circumstances could also be understood to be outside the subject of the jurisdiction of the United States.
Of course, the actual text of the Constitution does not refer to parents at all but rather applies to those “born” in the United States. The restrictionist legal arguments simply conflate the parent and infant when determining who is subject to the jurisdiction of the United States and focus attention on the alleged allegiance of the parents. Given that the restrictionists’ arguments assert that “subject to the jurisdiction” in this context means, in effect, “those who owe allegiance,” the lack of interest in how a newborn infant might acquire the requisite allegiance would seem to be a problem. The awkwardness is itself indicative of the fact that “subject to the jurisdiction” should not be translated into “those who owe allegiance” since an allegiance-based analysis necessarily draws one toward a consideration of the adult parents rather than toward a consideration of the actual subject of the constitutional text, the newborn infant. Ultimately, the Constitution directs us to determine whether a newborn is “subject to the jurisdiction” of the United States, and that directive is unlikely to be sensible if the key determinative factor is one of allegiance.
The birthright citizenship case has highlighted some potential points of divergence as to how originalist theory might be translated into practice. A pure original intention approach would tend to emphasize that the text should be understood to mean what those who authored it intended for it to mean, and that in turn would prioritize historical evidence that can be gleaned from the discussions and debates surrounding the drafting and adoption of a given piece of constitutional text. Thus, Professor Kurt Lash has asserted that in order to interpret this text one need read no more than “roughly seven pages in the Congressional Globe.”
An original public meaning approach, on the other hand, would tend to emphasize how a specific text would have been understood at the time it was enacted into law. That text might simply reflect general public and political discourse or it might embody legal terms of art and reference particular legal rules that could depart from ordinary meaning but makes sense of the Constitution as a public legal document. Such legal understandings of the constitutional text might likewise be informed by legal interpretive conventions and methodologies or legal background norms and principles familiar to sophisticated readers of legal documents at the time the text was drafted and ratified into authoritative law. Thus, from this perspective, in order to understand the citizenship rule embodied in the Fourteenth Amendment, it would be useful to examine the extended history of the common law rule of birthright citizenship.
For purposes of this article, we take an original public meaning approach that focuses on the extent to which the “subject to the jurisdiction” language invokes preexisting, conventional meaning that would have been familiar from congressional and legal practice at the time of Reconstruction. Were the drafters of the Fourteenth Amendment writing on a blank slate, or were they borrowing from sources that would have helped refine and clarify the meaning of the text they were adopting? Although the specific language that they eventually used in the final version of the Fourteenth Amendment was not simply pulled off the shelf, it was also not a complete innovation nor was it idiosyncratic to one congressional debate on a single day in May 1866. These are words and phrases that had a familiar meaning to legislative drafters in the mid-nineteenth century. It is theoretically possible that a constitutional drafter would mean to use legal terminology in an unconventional way, but such a possibility would seem to be unlikely and should require substantial evidence to demonstrate. When a constitution makes use of established legal terms, the most fruitful path for interpreting that language is to examine what meaning those legal terms would have had for competent lawyers at the time.
Evidence from treaties, statutes, and judicial opinions predating the Fourteenth Amendment should inform our understanding of the constitutional language. Critically for purposes of the current dispute over the status of the American-born children of aliens, those sources reinforce the conventional interpretation of the constitutionally embodied birthright citizenship rule. They indicate that “subject to the jurisdiction” did not suggest a rule of faithful allegiance to the political sovereign of the sort that revisionists have recently proposed in support of the administration’s policy proposals to narrow the scope of birthright citizenship. Instead, those historical legal sources indicate that that the proper rule for assessing the status of those born within the United States is whether those children were born subject to the governing authority and protection of the political sovereign. Moreover, the standard use of legal language like “subject to the jurisdiction” did not require or imply exclusivity. Individuals and objects were frequently simultaneously subject to the jurisdiction of the United States and subject to the jurisdiction of other governments.
This Article canvasses the evidence across three parts. First, the Article examines how the terms “jurisdiction” and “subject to” were generally used in the law by the 39th Congress and in this time period. Second, the Article examines how “subject to the jurisdiction” as a phrase was used generally in the law prior to the drafting of the Fourteenth Amendment. Third, the Article examines how similar phrasing such as “within the jurisdiction” was used to convey the same idea as “subject to the jurisdiction” in the law during this period.
All of this evidence indicates that “subject to the jurisdiction” can be understood as a conventional piece of legal text in the context of the mid-nineteenth century, and as such it had an established meaning that is consistent with—and makes sense of—its usage in the context of the Fourteenth Amendment. The overwhelming weight of this evidence indicates that “subject to the jurisdiction” was not used to refer to, or make use of, concepts of “allegiance” but rather was routinely used to describe the circumstances in which individuals were under the governing authority of the sovereign. The most natural reading of the Citizenship Clause of the Fourteenth Amendment is that it is a legal text that possessed conventional legal meaning at the time of its adoption. This original meaning was that those “subject to the jurisdiction” of the United States were those who were within the governing authority of the United States. Accordingly, those who are not subject to the jurisdiction of the United States are simply those who cannot properly be subjected to the governing authority of the United States or bound by its laws and legal proceedings.
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