The 14th Amendment’s citizenship clause does not codify English principles of subjectship

Critics and supporters of President Donald Trump’s executive order on birthright citizenship often focus on the order’s barring of automatic citizenship to children born to individuals unlawfully present in the United States. In this column, I would instead like to focus on the order’s barring of such citizenship to children born to individuals lawfully but transiently present in the United States, because the order’s treatment of those children brings the dispute into sharp focus. One side argues that the 14th Amendment effectively codifies the English common law of subjectship to declare that the children of foreign visitors are birthright citizens. The other side argues that the 14th Amendment instead codifies an American rule of declaring as citizens those who have chosen to make this country their home. The latter view is the better one.

The argument that the 14th Amendment automatically confers citizenship on the children of temporary visitors fails for at least three reasons: one, and perhaps most significantly, it attempts to enshrine a feudal notion of citizenship repudiated by the Founders; two, it is contrary to the text and history of the citizenship clause; and three, it is incompatible with the amendment’s treatment of Native Americans.   

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The English common-law rule of subjectship, often referred to as jus soli (literally, “right of the soil”), grew out of feudal notions of the relation between lord and vassal, with the king holding ultimate lordship over all land within his dominion. As English jurist William Blackstone put it, “in England, … all lands in the kingdom are holden of the king as their sovereign and lord paramount.” The relation between king and subject was not one of free choice on behalf of the subject. Rather, to quote Blackstone again, “[n]atural allegiance is such as is due from all men within the king’s dominions immediately upon their birth” and “which cannot be forfeited, cancelled, or altered.” This perpetual subjectship extended to “the children of aliens, born … in England,” even if those aliens were visitors who had not chosen to make England their home. The subject’s allegiance was “held to be applicable not only to the political capacity of the king, or regal office, but to his natural person, and blood-royal.”

In declaring independence, the people of the United States emphatically rejected the English common law of perpetual subjectship. The Declaration of Independence states that governments “deriv[e] their just powers from the consent of the governed” and that the people of this nation would no longer consent to be subjects of the “King of Great Britain.” The signers of the Declaration therefore “solemnly publish[ed] and declare[d]” that the now “Free and Independent States” were “[a]bsolved from all Allegiance to the British Crown.” In other words, the founders of this nation expressly rejected British notions of perpetual subjectship by unilaterally severing America’s allegiance to the British Crown. And they also rejected allegiance to the natural person of the king or any holder of government office. As St. George Tucker explained in his influential version of Blackstone’s Commentaries, “this principle has no existence in the United States: it is a scion from that idolatrous veneration for the regal character…. Allegiance in America, is only due to the state.”

The Declaration makes certain that citizenship in America was to be built on American principles, not on the English common law of subjectship. While the English common law may often be useful in understanding American law, as the court has made clear, “English common-law practices and understandings at any given time in history cannot be indiscriminately attributed to the Framers of our own Constitution.” Indeed, there was no English common law of citizenship, only subjectship, making this an area particularly unlikely for English understandings to become American law.

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Apart from rejected English common-law principles, it is not apparent why the children of temporary foreign visitors should be considered citizens of an independent American republic. The parents of such children have not chosen to make the United States their permanent home or the primary object of their political allegiance, and there is thus little basis apart from feudal territorial notions to impute such permanency or allegiance to their children. As Justice Joseph Story wrote in his influential 1841 Commentaries on the Conflict of Laws, while “persons who are born in a country are generally deemed to be citizens and subjects of that country,” “[a] reasonable qualification of the rule would seem to be, that it should not apply to the children of parents who were in itinere in that country, or who were abiding there for temporary purposes, as for health, or curiosity, or occasional business.”

To be sure, Story acknowledged that the qualification was not “universally established” in 1841. The United States, however, would firmly establish it with adoption of the Civil Rights Act of 1866 and the 14th Amendment in 1868. Section 1 of the Amendment begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The amendment’s text is contrary to the notion that citizenship is to be automatically granted to the children of temporary visitors at birth. First, its language rejects temporary presence as sufficient to establish State citizenship. Rather, Americans are citizens of “the State wherein they reside,” and reside means permanent residence, i.e., domicile. Thus, if a married couple from Ohio travels to another state for vacation, to attend college, or for military service but maintains residence in Ohio, that couple’s children will be Ohio citizens, even if they are born outside of the state.

Second, the amendment states that citizens are those “subject to the jurisdiction” of the United States. The definite article before “jurisdiction” implies that a person must be fully subject to the jurisdiction of the United States, not just to some degree, to be a citizen at birth, but in all respects. And this is how the framers of the amendment understood the term. Senator Jacob Howard, the citizenship clause’s drafter, explained to his colleagues that “the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, … that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” That would obviously exclude temporary visitors.

Third, interpreting the 14th Amendment to extend citizenship to the children of temporary visitors is incompatible with the amendment’s treatment of members of Native American tribes. The amendment’s predecessor, the Civil Rights Act of 1866, provided that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” “Indians not taxed” meant Indians who maintained allegiance to their tribes. The term’s inclusion was required by the act’s negative phrasing – persons “not subject to any foreign power” – because the tribes were not considered foreign powers in a strict sense.

The 14th Amendment achieved the same end by switching to positive language – persons who “are subject to the jurisdiction” of the United States – because individuals who maintain tribal allegiance are not subject to the full and complete jurisdiction of the United States. This was confirmed by the Supreme Court in 1884 in Elk v. Wilkins. There, the court held that “Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indian tribes,” are not “subject to the jurisdiction of” the United States, because they are not “completely subject to [the United States’] political jurisdiction and owing them direct and immediate allegiance.”

Critically, nothing in Elk turned on whether a person was born on or off tribal lands – either way, the person would be “in a geographical sense born in the United States.” Thus, even if a member of a tribe was born while his parents were visiting, say, Chicago, that person still would not be a citizen under the 14th Amendment because his parents maintained their tribal allegiance. And if that is the case, there is no logically consistent way to say that the child of a foreigner visiting Chicago would be a citizen. As one prominent treatise put it, “starting from the judicially ascertained circumstance that Indians are not citizens of the United States because they are not, in the full sense, ‘subject to the jurisdiction’ of the United States, it is considered that a fortiori the children of foreigners in transient residence are not citizens.”

Finally, and notably, nothing argued here entails overruling the Supreme Court’s 1898 decision in Wong Kim Ark, in which the court found the child of Chinese nationals domiciled in the United States to be a citizen. While perhaps an edge case – as demonstrated by the dissent of Chief Justice Fuller, joined by Justice John Marshall Harlan – unlike with visitors, the children of foreigners who make the United States their permanent home can be understood to owe a primary allegiance to this country.  

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In adopting the 14th Amendment, the people of this nation sought once and for all to establish the meaning of citizenship under the Constitution on firm republican principles. Those principles were divorced from feudal British notions of the king’s sovereignty and based on American notions of consent of the governed. It follows that the children born to those visiting America are not citizens under the 14th Amendment. As Senator Lyman Trumbull explained, the citizenship provisions of the Civil Rights Act of 1866, the meaning of which the framers of the 14th Amendment sought to enshrine in the amendment’s citizenship clause, were expressly crafted to avoid making citizens of “persons temporarily residing in [the United States] whom we would have no right to make citizens.”    

Disclosure: The author represents Senator Eric Schmitt and Representative Chip Roy in an amicus brief filed in support of the petitioners in Trump v. Barbara.