Allegiance or Accident? The Supreme Court and Birthright Citizenship

Is it sufficient for a child to be physically born in the United States to claim citizenship? That is the question the Supreme Court will decide this term. The decision could affect the status of millions, deter or encourage future illegal immigration, and reframe the public’s understanding of what true citizenship entails. 

The operative language for the Court’s interpretation is Section 1 of the Fourteenth Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The language I have italicized is the root of the argument.

Does it mean something as simple as territorial jurisdiction? For example, under international law an American citizen who willfully travels to Moscow is subject to the criminal laws of Russia. (Women's National Basketball Association star Brittney Griner got a lesson in that principle a few years back when she brought cannabis oil into Russia.) Or does the language mean something more?

The primary purpose of the Fourteenth Amendment was to provide a constitutional foundation for the Civil Rights Act of 1866, a central tenet of which was citizenship of the newly freed slaves. 

As the first section of the Act averred:

“[t]hat all persons born in the United States and not subject to any foreign power . . . are hereby declared to be citizens of the United States.”

One is subject to a foreign power if one owes it allegiance. A child born to parents who are citizens of, say, Mexico is assumed under international law to owe primary allegiance to Mexico. 

Emmerich de Vattel, whose 1758 book The Law of Nations was revered by the Constitution’s framers, explained the accepted rule as follows: "The natives, or natural-born citizens, are those born in the country of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.” Thus, a child’s birth on American soil does not affect the parents’ nor the child’s allegiance.

Senator Lyman Trumbull, who drafted the citizenship language of the Civil Rights Act, was asked on the Senate floor what the Fourteenth Amendment’s revised language meant. He responded that “subject to the jurisdiction thereof” meant “[n]ot owing allegiance to anyone else. That is what it means.” He further pointed out that American Indians, though born on American soil, would not automatically be citizens under the Amendment because they owed allegiance to their tribes. Their place of birth was not determinative.

Representative John Bingham, a sponsor and draftsman of the Fourteenth Amendment, was clear in his speeches that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is . . . a natural-born citizen.”

In the 1873 Slaughter-House Cases, which were decided five years after the ratification of the Fourteenth Amendment, the Supreme Court interpreted “subject to its jurisdiction” as “exclud[ing] from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Eleven years later the Court affirmed this initial interpretation in the 1884 case Elk v. Wilkins, when it held that the operative language means “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.” 

Things become more complicated in 1898 with United States v. Wong Kim Ark, when the Court held that a child born in the United States to permanent legal residents was a citizen even though his parents were subjects of the emperor of China. There was a strong dissent from Chief Justice Melville Fuller, who cited de Vattel and protested the Court’s novel interpretation. 

So what will the Roberts Court do? The correct course would be to adopt the interpretation of the Amendment’s framers which is grounded in de Vattel: If a newborn’s parents are citizens or subjects of a foreign government, then the child is not subject to the jurisdiction of the United States. 

The Court, however, will probably craft a rule that preserves Wong Kim Ark but also rejects pure birthright citizenship. If the child’s parents have legal status in the United States, though still maintaining foreign citizenship, the Court will likely find the child to be an American citizen if born here. But, if the parents are here illegally, then birth in American territory will not be enough.

William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of The Independent Guide to the Constitution and Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution. He has served as a prosecutor and defense lawyer and has practiced in various state and federal courts.