Subject to the Jurisdiction Thereof, Six Words at the Center of Citizenship

Six words. That is all. Most Americans could not tell you they exist, and yet "subject to the jurisdiction thereof" may be the most consequential phrase in the Constitution that nobody reads aloud at a Fourth of July picnic. Put it in front of two serious conservative lawyers and you will get two serious answers, delivered with equal confidence and, occasionally, raised voices.

So let us do what too few people in this argument bother to do. Let us read the clause, read what the men who wrote it said on the Senate floor, read what the Supreme Court did with it in 1884 and 1898, and give both conservative readings a fair hearing. Then we will say plainly which one the text and the history favor, and where the honest uncertainty lies.

The text, word by word

Here is the first sentence of Section 1 of the 14th Amendment, ratified in July 1868:

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.

Notice the structure. There are two requirements joined by "and." First, a person must be born or naturalized in the United States. Second, that person must be "subject to the jurisdiction thereof." If the second requirement meant nothing more than the first, the drafters wasted six words, and lawyers have a rule against reading any constitutional phrase as surplus. Chief Justice Marshall put it in Marbury v. Madison (1803): it cannot be presumed that any clause in the Constitution is intended to be without effect.

So the phrase does work. The only question is how much work. Everyone agrees it excludes some people born on American soil. The fight is over who.

Notice, too, what the sentence accomplished in its own day. Before 1868 the Constitution used the word "citizen" without ever defining it, and in Dred Scott v. Sandford (1857) the Court used that silence to declare that no descendant of enslaved Africans could be a citizen of the United States. The first sentence of the 14th Amendment was written to bury that holding, and it did. Whatever else the clause means, it means that the nation's citizenship would never again be denied on the ground of race or ancestry. Both readings we are about to weigh accept that without reservation.

The statute came first, the Civil Rights Act of 1866

The amendment did not arrive out of nowhere. Two years earlier, Congress passed the Civil Rights Act of 1866 over President Andrew Johnson's veto. Its opening section declared citizens "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed."

Read that formula carefully, because it is the closest thing we have to a dictionary entry written by the same Congress. Birth on the soil was necessary but not sufficient. A person also had to be "not subject to any foreign power." The Republicans who wrote the act wanted to put the citizenship of the freedmen beyond question, and they did. But they wrote a test with two parts, and the second part was about allegiance.

Why, then, amend the Constitution at all? Because a statute can be repealed by the next Congress and struck down by the next Court. The Republicans had watched Dred Scott happen. They wanted citizenship in the supreme law, where a hostile majority could not reach it. The 14th Amendment was, among other things, a constitutional guarantee of the 1866 act. That matters for interpretation: when two texts written by the same men in the same session aim at the same goal, the earlier one is strong evidence of what the later one means.

The Senate floor, May 1866

The citizenship sentence was added in the Senate. On May 30, 1866, Senator Jacob Howard of Michigan, who managed the amendment on the floor, introduced the language and explained it in a sentence that both sides of today's debate quote:

This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

Here is the trouble. Read with commas as a list, Howard excluded three groups: foreigners, aliens, and the families of diplomats. Read as a single description, he excluded one group: foreign aliens who belong to diplomats' families. The Congressional Globe's punctuation will not settle it, and anyone who tells you it obviously reads one way is selling you certainty he does not have.

Senator Lyman Trumbull of Illinois, chairman of the Judiciary Committee and author of the 1866 act, offered a fuller gloss in the 1866 debates. Asked what "subject to the jurisdiction of the United States" meant, he answered, in substance: not owing allegiance to anybody else. He spoke of a "complete" jurisdiction, the kind a nation holds over its own people, as distinct from the partial jurisdiction it holds over anyone who happens to be standing within its borders.

The debate then turned to Indians living in tribal relations. Senators argued over whether "Indians not taxed" needed to be written in expressly. Trumbull and Howard said no: tribal Indians owed allegiance to their tribes, which the United States dealt with by treaty, and so they were not subject to the jurisdiction in the full sense. That exchange is important, because it shows the drafters using the phrase to exclude people physically inside the country and plainly subject to its criminal law, if they committed a crime on a public road, yet not subject to its political jurisdiction.

Elk v. Wilkins (1884), the Court reads "complete"

The first great test came in 1884. John Elk was born on a reservation, left his tribe, moved to Omaha, and lived among the general population. He tried to register to vote, was refused, and sued, arguing that he was a citizen by birth.

The Supreme Court ruled against him. Justice Horace Gray wrote that the phrase meant "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance." Elk had not been completely subject at birth, the Court held, and leaving the tribe later could not make him a citizen without an act of naturalization by Congress. Justice John Marshall Harlan dissented.

Congress eventually fixed the injustice to Indians directly, culminating in the Indian Citizenship Act of 1924. But Elk stands for a proposition no reader can wave away: birth inside the borders, plus being subject to American law in the ordinary sense, was not enough. Jurisdiction in the clause meant something more than presence.

Wong Kim Ark (1898), the Court reads the common law

Fourteen years later, the same Justice Gray wrote the opinion that most Americans assume settles everything. Wong Kim Ark was born in San Francisco around 1873 to Chinese parents who were lawfully living and doing business there, though under the naturalization law of the day they could never become citizens. After a visit to China in 1895, he was refused re-entry under the Chinese Exclusion laws on the ground that he was not a citizen.

The Court, by a vote of six to two, held that he was. Gray's opinion rested on English common law, under which nearly everyone born within the King's dominions was a natural-born subject, with narrow exceptions: the children of foreign ambassadors, the children of hostile enemies occupying the territory, and, in the American setting, members of Indian tribes. The 14th Amendment, Gray wrote, affirmed that ancient rule. The parents of Wong Kim Ark had a "permanent domicil and residence" in the United States and were not employed in any diplomatic capacity, so their son was a citizen at birth.

Chief Justice Melville Fuller dissented, joined by Justice Harlan. Fuller argued that the drafters had meant the allegiance test of the 1866 act, not the feudal doctrine of English subjecthood, and that a child of parents who owed allegiance to the Emperor of China was not born "subject to the jurisdiction" in the sense the framers intended.

Notice how carefully Gray framed his holding. The opinion repeats the facts of domicile again and again. The question presented, as the Court stated it, was whether a child born here of parents who, at the time of his birth, were subjects of a foreign emperor but had "a permanent domicil and residence within the United States" became a citizen. That is the holding. Everything beyond it is reasoning, sometimes broad reasoning, but reasoning.

The two conservative readings, stated fairly

Now we can lay out the two positions honestly. Both are held by people who take the text seriously. Neither is a fringe view.

Reading one, the common-law reading

Defenders of the broad reading make four points.

1. The phrase "subject to the jurisdiction" ordinarily means subject to a nation's laws and courts. Anyone on American soil, other than a diplomat with immunity or a member of an invading army, can be arrested, sued and taxed here. They are subject to our jurisdiction in every practical sense.
2. The drafters legislated against the background of the common-law rule of birthright subjecthood, which the American states had long followed. When a legal text uses an old term, it brings the old meaning with it.
3. Howard's remark, read naturally, excludes the families of diplomats, the classic common-law exception, and nothing else of note.
4. Wong Kim Ark has stood for more than a century, and its reasoning, if not its narrow holding, sweeps in nearly everyone born here. The Executive Branch has issued birth certificates and passports on that understanding for generations, and an enormous reliance interest has grown up around it.

That is a serious argument. It is the reading most lawyers learned in school, and it has the advantage of simplicity.

Reading two, the allegiance reading

Defenders of the narrower reading answer with four points of their own.

1. The best evidence of a phrase's meaning is how its authors used it. The same Congress wrote "not subject to any foreign power" in 1866 and "subject to the jurisdiction thereof" in 1866, and its leading members told the Senate the second meant the first. Trumbull said it meant owing allegiance to no one else.
2. The tribal Indian example proves the phrase was not about mere territorial presence. Tribal Indians were inside the borders and subject to American law in many respects, yet the drafters excluded them. Elk confirmed it.
3. Wong Kim Ark decided the case of parents lawfully domiciled here. Its holding does not reach parents who are here unlawfully, who did not exist as a legal category in 1866, or parents here briefly on a visa, whose allegiance and domicile remain abroad.
4. Neither our citizenship nor any other nation's has to be acquired by the accident of a mother's location on a particular day. Most of Europe abandoned pure birthright citizenship decades ago, as Most of Europe Does Not Grant Citizenship by Birth Alone. Here Is the Map explains, and the Constitution does not compel the United States to be an outlier unless its words do.

That too is a serious argument. It takes the drafting history more seriously than the common-law reading does, and it takes Elk at its word.

The strongest objection, answered

The best objection to the allegiance reading is this: the common-law tradition was the background rule, Justice Gray canvassed it at length, and the Court has never retreated from Wong Kim Ark. Overturning a century of practice on the strength of disputed Senate remarks would be judicial adventurism of exactly the sort conservatives deplore.

Here is the answer, point by point.

First, nobody serious is proposing to overturn Wong Kim Ark. Its holding covers children of lawfully domiciled parents, and on that question the allegiance reading and the common-law reading agree. A permanent resident who has made America his home has, by long legal understanding, taken on a local allegiance. His children are citizens. That should be said clearly and repeated, because some of the noise in this debate comes from people who imagine the question is whether the children of green-card holders are Americans. They are.

Second, originalism does not mean treating a court's broadest sentences as if they were the Constitution. Elk and Wong Kim Ark were written by the same Justice, and they must be read together. Read together, they say that jurisdiction means more than presence, and that domicile with lawful permission supplies it. Neither case decided the status of a child born to parents with no lawful domicile here, and the Supreme Court has never squarely held that question. Language in later cases about lawful and unlawful entrants, including a well-known footnote in Plyler v. Doe (1982), concerned the Equal Protection Clause, a different sentence using the word "jurisdiction" in a different way. (For the costs of that decision, see Plyler v. Doe and the Bill States Pay for a Decision Congress Never Made.)

Third, reliance cuts both ways. A citizenship rule that rewards unlawful entry with a permanent constitutional status creates its own incentives, and the Constitution's framers did not write the clause with those incentives in view. Saying so is not hostility to anyone. It is the ordinary observation that a rule's meaning should be settled by its words and its history rather than by the habits of an agency that issues passports.

Fourth, the clause was written to make freedmen citizens beyond the reach of any Court or Congress. Both readings honor that purpose completely. The disagreement is only about the outer edge of the rule, and the outer edge is exactly where drafting history should count most.

Where the text and history point

Our verdict, stated plainly.

The text says "subject to the jurisdiction thereof" and requires it in addition to birth on the soil. That alone defeats any reading that makes the phrase mean nothing beyond presence. The drafting history, from the 1866 act's "not subject to any foreign power" through Trumbull's gloss on allegiance and the long debate over tribal Indians, points toward allegiance as the core idea. Elk v. Wilkins adopted that idea in so many words. Wong Kim Ark then applied it to lawfully domiciled parents and found it satisfied.

So the text and history favor the allegiance reading as the meaning of the words, and they make Wong Kim Ark fully correct on its own facts. What they do not do is settle, by themselves, the status of children born to parents present unlawfully or only temporarily. That question is genuinely open at the level of constitutional text, and a conservative should resist both the claim that it was decided in 1898 and the claim that it is obvious the other way. It deserves to be decided by the Supreme Court on the text, the 1866 record and the two cases read together, with every argument heard, rather than settled by assumption or by slogan.

Two more things are certain. Congress has full power under Article I to set the rules of naturalization, as the first Congresses did in 1790 and after (see One Uniform Rule, How the First Congresses Wrote America's Naturalization Laws). And anyone who wants the broadest possible rule written beyond dispute has an honest route available: propose an amendment that says so. The same is true for those who want the narrowest rule. Article V is slow on purpose.

It is also worth noticing how the question is usually covered. Coverage tends to present one reading as "the Constitution" and the other as an attack on it. But a dispute that divides careful scholars, that two Justices of the Supreme Court took the minority side of in 1898, and that turns on the punctuation of a senator's speech is not a dispute between law and lawlessness. It is a dispute about law. Treating it as one is the first step toward settling it. For a parallel argument about how a phrase in the original Constitution came to be misread, see Natural Born Citizen, the Phrase the Founders Borrowed and Never Defined, and for the cautionary tale of what happens when a Court decides citizenship by fiat, see Dred Scott Is the Warning Every Fan of Judicial Supremacy Should Read.

Why six words deserve a citizen's attention

Citizenship is the most basic political status a free people can confer. It decides who votes, who serves on juries, who may hold office and who belongs to the "We the People" in whose name the Constitution was ordained. A republic that cannot say who its citizens are, or that lets the answer be set by bureaucratic habit rather than law, has lost hold of its own foundation.

The 14th Amendment was the Reconstruction Congress's answer to Dred Scott, and it was a magnificent answer. It declared that no one born under the nation's full authority could be denied membership because of race or ancestry. That principle is beyond debate, and every conservative should defend it. The debate is narrower: whether "full authority" includes those whose presence the law itself forbids or whose stay is temporary by design. Conservatives can disagree about that in good faith. What we should not do is pretend the clause has no second requirement, or pretend the question was answered by a case that did not present it.

Read the clause. Read the 1866 debate. Read Elk and Wong Kim Ark side by side, as Wong Kim Ark and the 1898 Birthright Case, Read Fairly From Both Sides does. Then decide for yourself, which is precisely what a self-governing people is supposed to do.

The case in brief

1. The Citizenship Clause has two requirements, birth or naturalization in the United States and being "subject to the jurisdiction thereof," and the second must mean something more than presence.
2. The same Congress wrote "not subject to any foreign power" in the Civil Rights Act of 1866, and its leaders described the amendment's phrase in terms of allegiance.
3. Elk v. Wilkins (1884) held that jurisdiction meant complete political jurisdiction and direct allegiance; Wong Kim Ark (1898) held that lawfully domiciled parents' children are citizens.
4. The text and history favor the allegiance reading, are fully consistent with Wong Kim Ark, and leave the case of parents present unlawfully or temporarily genuinely open for the Court to decide on the merits.

What you can do: read the 14th Amendment's first sentence on our Constitution page, then read the opinions in Elk v. Wilkins and United States v. Wong Kim Ark in full before the next time you hear either side call the question settled.