Contrary to longstanding practice, President Trump’s recent executive order purports to reinterpret the Constitution to recognize constitutional birthright citizenship only for US-born children with at least one parent who is a United States citizen or lawful permanent resident. In particular, the order would deny citizenship to US-born children of lawful temporary visitors and of persons not lawfully present in the United States. As explained below, the narrow reading of the Constitution’s citizenship clause is contrary to the clause’s original meaning. 

　　The Fourteenth Amendment’s citizenship clause, adopted in 1868, provides that “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 core textual question, therefore, is the meaning of “subject to the jurisdiction.” Specifically, the question is whether US-born children of lawful temporary visitors and persons not lawfully present are “subject to the jurisdiction” of the United States. The clause’s text, history, and subsequent application show that they are.

　　The Text

　　In nineteenth-century language, a nation’s “jurisdiction” meant its sovereign authority. The 1865 edition of Webster’s Dictionary defined jurisdiction of nations as the “power of governing or legislating,” “the power or right of exercising authority,” the “limit within which power may be exercised,” or “extent of power or authority.”

　　Nineteenth-century sovereigns had authority (“jurisdiction”) principally based on geography. As Chief Justice Marshall wrote for the Supreme Court in Schooner Exchange v. McFaddon (1812), “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Marshall identified three exceptions to this otherwise absolute territorial sovereignty: foreign sovereigns and their property, foreign diplomats, and foreign military forces. These, he said, even within sovereign territory, are not “within the jurisdiction of the sovereign.” But he added that these exceptions did not extend to private non-citizens within sovereign territory—even those there only temporarily. “When private individuals of one nation spread themselves through another as business or caprice may direct,” Marshall wrote, they are “amenable to the jurisdiction of the country.”

　　Marshall used the phrase “amenable to jurisdiction”; subsequently Henry Wheaton—the leading mid-nineteenth-century American writer on international law—used the equivalent phrase “subject to jurisdiction.” Referring to sovereign authority, he noted, for example, that ships on the high seas were “subject to the jurisdiction of the state to which they belong.” And as to diplomatic immunity, Wheaton wrote that ambassadors and their families were “entitled to an entire exemption from the local jurisdiction,” except that if a diplomat “is a citizen or subject of the country to which he is sent … he remains still subject to its jurisdiction.”

　　In sum, the Amendment’s framers chose a phrase that was well-defined in pre-enactment law. “Subject to the jurisdiction” of a nation meant under sovereign authority, and it included everyone within sovereign territory apart from foreign sovereigns, diplomats, and armies.

　　The Background

　　This view of citizenship followed from the longstanding English common law rule called jus soli, which as explained by Coke and Blackstone, made everyone born in England an English subject regardless of the status of their parents. As Blackstone wrote, “the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.” Coke likewise said, in the famous Calvin’s Case (1609), that “if [an alien] hath issue here, that issue is … a natural born subject.” Blackstone added the exception for children of diplomats, who were not under local authority as a result of immunity.

　　American common law generally followed the English rule in the pre-Civil War period, substituting citizenship for subjectship. Constitutional lawyer William Rawle wrote in 1829: “Every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution.” An 1844 New York case, Lynch v. Clarke, specifically found that US-born children of temporary visitors were US citizens, observing that “every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.” In an earlier Supreme Court case, McCreary’s Lessee v. Somerville (1824), Justice Story, writing for the Court, noted that the US-born daughter of Irish subjects was a “natural born citizen of the United States.”

　　This broad view of citizenship did not extend to children of slaves, tribal Native Americans, or persons with diplomatic immunity. But as indicated by the authorities above (among many others), it extended to everyone else. Or at least it did until some states began denying citizenship to native-born free persons of African descent—a practice upheld by Chief Justice Taney in the 1857 Dred Scott case. And Taney’s ruling in turn directly inspired the Fourteenth Amendment’s drafters to restore and constitutionalize the common law of citizenship as they understood it.

　　The Drafting History

　　The clause’s drafting history confirms the textual analysis. Michigan Senator Howard, who proposed the clause’s language, observed that he saw it as “declaratory of what I regard as the law of the land already” (except in that it overruled Dred Scott). Howard further explained—acknowledging the general jus soli principle and its exception for ambassadors—that the clause “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors [sic]or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

　　The text, history, and application of the citizenship clause confirm that it applies to US-born children of all non-diplomat aliens.

　　The drafters directly discussed whether Howard’s language appropriately included children of non-citizens. Pennsylvania Senator Cowan objected that the proposed language would include children of Chinese workers on the West Coast. California Senator Conness responded: “The proposition before us relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. … I am in favor of doing so.” No other senator (including Howard) dissented from Conness’ reading. Thus the senators apparently agreed on the clause’s effect, only disagreeing on its wisdom. Similarly, in the House, Ohio Representative Lawrence cited the Lynch case for the proposition that “children born here are citizens without any regard to the political condition or allegiance of their parents.” (After a wave of anti-Chinese sentiment swept the West Coast, Conness lost his seat, and California refused to ratify the Amendment.)

　　The drafters’ treatment of tribal Native Americans confirms their understanding of “subject to the jurisdiction.” Persons living in tribes were not citizens under antebellum common law, and senators wanted to continue that exclusion. Howard and others assured them that his language did, because US law did not govern intra-tribal offenses—typically due to treaties establishing exclusive tribal authority in such matters. As Howard explained, “an Indian belonging to a tribe” is not “subject to this full and complete jurisdiction” of the United States because that person “is subject for crimes committed against the laws or usages of the tribe to the tribe itself, and not to any foreign or other tribunal.” Senator Williams in support equated tribal members to foreign diplomats, neither being “fully and completely subject to the jurisdiction of the United States.” Senator Trumbull added that because the US government could not “pretend to take jurisdiction of murder and robberies and other crimes committed by one Indian on another,” persons in tribes “are not subject to our jurisdiction.”

　　This discussion shows that senators understood being subject to US jurisdiction to mean under US sovereign authority with respect to, for example, ordinary crimes—which (to repeat) was the case for everyone in the United States other than diplomats and tribes. 

　　Post-Ratification

　　After adoption of the Amendment, the executive branch endorsed a broad interpretation of the Amendment. In 1871, Secretary of State Hamilton Fish, confirming the citizenship of US-born children of temporary visitors, wrote: “The Fourteenth Amendment … is simply an affirmance of the common law of England and of this country, so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage. The qualification ‘and subject to the jurisdiction thereof’ was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality.” In contrast, Justice Miller’s Supreme Court opinion in the Slaughter-House Cases (1873) in dicta suggested a narrow reading confined to children of citizens (although lower courts that confronted the question directly took a broader reading).

　　As anti-immigrant feelings surged toward the century’s end, the executive branch switched sides, taking the view that US-born children of Chinese workers were not citizens under the clause. This led in 1898 to the Supreme Court examining the question directly in United States v. Wong Kim Ark. Relying heavily on the longstanding common law of jus soli and the clause’s drafting history, the Court rejected the Slaughter-House dicta and the (new) executive branch position, instead adopting the view of Secretary Fish: US-born children of non-citizens (except diplomats and others with immunity) were citizens.

　　The Court described the parents in Wong Kim Ark as lawful permanent residents, so strictly speaking the Court’s decision does not resolve the clause’s application to temporary visitors or persons not lawfully present. But its analysis tracked the argument presented above: subject to jurisdiction meant under sovereign authority, which included everyone born in sovereign territory other than tribes and diplomats.

　　Counterarguments

　　The text, history, and application of the citizenship clause confirm that it applies to US-born children of all non-diplomat aliens. Of a few leading objections, I only find one at all persuasive.

　　First, as noted, Wong Kim Ark addressed the child of lawful permanent residents. Children of temporary visitors and persons unlawfully present are different, one might say, because they (and their parents) lack legal US residence. However, this is not a relevant difference under the text and history of the clause. The textual question is the meaning of “subject to jurisdiction.” There is no sense in which lawful permanent residents are subject to US jurisdiction but temporary visitors or persons lacking lawful status are not. As explained above, all persons, including all non-citizens other than those with immunities, in sovereign territory were under sovereign authority, and thus within the nineteenth-century meaning of “subject to the jurisdiction.” Moreover, neither the pre-war common law, the drafting debates, nor Fish’s post-ratification executive interpretation distinguished between permanent residents and others with respect to citizenship.

　　Second, one might say that unlike children of citizens, children of aliens are not subject to the “exclusive” jurisdiction of the United States. It is true that children of aliens may also be subject to the jurisdiction of their parent’s home country, as that country might claim them as citizens or subjects. But the clause does not require exclusive jurisdiction—only jurisdiction. Further, the “exclusive jurisdiction” argument would require a different outcome in Wong Kim Ark and run counter to the drafters’ understanding that the Amendment gave citizenship to children of Chinese immigrants.

　　Third, one might say that the Amendment requires “complete” jurisdiction. It is true that the drafters thought tribal Native Americans were excluded on this ground. But that does not alter the result for the categories at issue in the present debate, because temporary visitors and persons not lawfully present are subject to complete jurisdiction of the United States. They are not equivalent to nineteenth-century tribes, over whose intra-tribal acts the United States claimed no authority.

　　Finally, an argument that carries some originalist weight arises from intent. The Amendment’s framers likely did not have in mind persons not legally present in the United States (although they did understand the issue of temporary visitors). The United States had no material restrictive immigration laws in 1868. Thus it may be difficult to say that the framers intended to give citizenship to children of persons not lawfully present. And it may be especially difficult to speculate about what the framers would have done, had they considered the question. Thus an originalist concerned with the framers’ intent might hesitate on this issue, perhaps to the point of thinking the matter best left to the political branches. 

　　Modern originalism is, however, predominantly concerned with the text’s original meaning, not the framers’ intent. In this approach, the law is the text that was adopted, not the intent or expectations (or lack thereof) of any drafters or ratifiers. On that understanding of originalism, the test’s original meaning seems clear.

　　In nineteenth-century language, “subject to the jurisdiction” of a nation meant under that nation’s sovereign authority. The nineteenth-century idea of territorial sovereignty made everyone within sovereign territory subject to sovereign authority, except those with jurisdictional immunities such as diplomats. That reading of the clause conforms to the pre-Amendment common law, which gave US-born children citizenship without regard to their parents’ status. It conforms with the views of the drafters, the immediate post-ratification executive branch, and the Court in Wong Kim Ark, who all read the clause broadly. As a result, the president’s attempt to exclude from citizenship the US-born children of temporary visitors and persons unlawfully present is contrary to the clause’s original meaning.

　　This essay is based on Professor Ramsey’s article “Originalism and Birthright Citizenship,” which has additional discussion, citations, and authorities.