What the 39th Congress Meant by Subject to the Jurisdiction Thereof

Five words. That is all it takes to start a fight at a family dinner: "and subject to the jurisdiction thereof." They sit in the first sentence of the Fourteenth Amendment, they have been argued over for more than a century and a half, and most of the people shouting about them have never read the sentence they are in. So let us read it, and then let us do what the other side hates and the honest side loves. Let us go back and find out what the men who wrote it said they meant.

Here is the sentence: "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 what it does not say. It does not say "all persons born in the United States." It says born in the United States and subject to the jurisdiction thereof. Two conditions, joined by an "and." Every lawyer who ever lived has asked the same question, which is whether the second condition does any work. This post is about how to answer that question like an adult. I will tell the story in order, give the original-meaning argument a fair hearing, show you its weakest point, and then tell you what I think the better conservative argument looks like.

The world the clause was written to change

You cannot understand the clause without the case it was written to bury. In 1857, in Dred Scott v. Sandford, Chief Justice Roger Taney wrote for the Supreme Court that people of African descent, free or enslaved, were not and could not be citizens of the United States. That was the law of the land when the Civil War began. When the war ended and the Thirteenth Amendment was ratified in 1865, slavery was gone, but the question of what the freed people were had not been answered. The Southern states answered it in their own way, with the Black Codes, which restricted where freedmen could work, travel and own property.

The 39th Congress met in December 1865. Its members were elected in the aftermath of the war, and the Southern states were not represented. Republicans held large majorities in both chambers. Their job, as they saw it, was to make freedom mean something, and the first order of business was to say in the law who was a citizen.

The Civil Rights Act of 1866

Their first answer was a statute. The Civil Rights Act of 1866 declared that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, were citizens of the United States. President Andrew Johnson vetoed the bill in March 1866. Congress overrode the veto in April, which was a historic event: one of the first times Congress had overridden a presidential veto on a major piece of legislation.

Put that wording next to the amendment's wording, because it matters. The statute said "not subject to any foreign power." The amendment said "subject to the jurisdiction thereof." Different words, written by many of the same men, within a few months of each other. A person who tells you the two phrases mean something wildly different has to explain why the drafters would change the language and say nothing about it. A person who tells you they mean exactly the same thing has to explain why the drafters changed the language at all. Keep that puzzle in your pocket.

Why an amendment, if there was already a statute? Because its supporters worried that a statute could be repealed by a later Congress and could be attacked as exceeding Congress's power. They wanted the point settled in the Constitution, where a future majority could not touch it.

The Senate debate: Howard and Trumbull

The Joint Committee on Reconstruction produced the amendment in the spring of 1866. The citizenship sentence was added in the Senate. On May 30, 1866, Senator Jacob Howard of Michigan, who was managing the amendment on the floor, introduced the language. He explained that it declared what he took to be the law already, that every person born within the allegiance of the United States was a citizen. And he said the clause would not include foreigners, aliens, or the families of ambassadors and foreign ministers accredited to the United States.

That last point is the heart of the original-meaning argument. Howard named the people who were not covered, and he named people who were born on American soil. A child born in Washington to the family of a foreign ambassador is born in the United States. Howard said that child would not be a citizen. The reason cannot be where the child was born. The reason must be the second condition: the parents' allegiance runs elsewhere, and the sovereign over that household is a foreign one.

Senator Lyman Trumbull of Illinois, who chaired the Judiciary Committee and had written the Civil Rights Act, was asked what the phrase meant. He said, in substance, that it meant subject to the complete jurisdiction of the United States, not owing allegiance to anybody else. The word "complete" is doing the work. Every person standing on American soil is subject to American law in the ordinary sense. If the phrase meant only that, it would add nothing to the words "born in the United States." Trumbull and Howard were describing something more: a full political jurisdiction, of the kind that comes with allegiance.

The exclusion of Indians not taxed

Now the part that every honest account has to include. The 1866 statute excluded "Indians not taxed." The Fourteenth Amendment's drafters knew that a great many people born on American soil were members of tribes with their own governments, and they discussed it. The prevailing understanding in the Senate was that members of tribes, who owed immediate allegiance to their tribes and were dealt with by treaty, were not "subject to the jurisdiction" of the United States in the sense the clause meant.

Think about what that tells you. People born on American soil to parents who were not themselves foreign nationals were left outside the clause, by the understanding of the men who wrote it. That is strong evidence that the second condition was a real limitation, not decoration. It is the best evidence the original-meaning side has, and I would use it first.

Elk v. Wilkins (1884)

The Supreme Court confronted the point in Elk v. Wilkins in 1884. John Elk was born into a tribe, left it, took up residence in Omaha, Nebraska, and tried to register to vote. He argued that he was a citizen by birth under the Fourteenth Amendment. The Court, by a vote of seven to two, said no. It held that Elk, though born within the territorial limits of the United States, was not "subject to the jurisdiction thereof" in the sense the clause meant, because at birth he owed immediate allegiance to his tribe. Justices Harlan and Woods dissented.

Elk is the original-meaning case at its strongest. The Court read the second condition to mean something beyond the ground you were born on. A birth in American territory was not enough. The question was allegiance, and the question was political.

United States v. Wong Kim Ark (1898)

Fourteen years later came the case the other side relies on. Wong Kim Ark was born in San Francisco around 1873 to Chinese parents who were, at the time of his birth, domiciled in the United States and carrying on business there. As the law then stood, the Chinese Exclusion Act of 1882 and related laws barred Chinese immigrants from becoming naturalized citizens. Wong went to China for a visit, and when he returned in 1895 the customs collector refused to let him land, claiming he was not a citizen.

The Supreme Court ruled in his favor in 1898, six to two, in an opinion by Justice Horace Gray. Fuller, the Chief Justice, and Harlan dissented. The Court traced the common-law rule of birthright citizenship back to English law, including Calvin's Case in 1608, and held that the Fourteenth Amendment affirmed and codified that rule. The holding, in the Court's own formulation, was that a child born in the United States to parents of Chinese descent, who at the time of the birth were subjects of the Emperor of China but had a permanent domicile and residence in the United States and were carrying on business there, and were not employed in a diplomatic or official capacity, became at the time of birth a citizen of the United States.

Read that holding slowly, because it is narrower than either side admits. The parents were lawfully domiciled. They were not tourists, and they were not people who had entered in violation of law. The Court went out of its way to describe their permanent residence. It also distinguished the children of foreign diplomats, children born to hostile forces occupying a territory, and children of members of Indian tribes, as people the clause did not reach.

The 1873 Slaughter-House Cases, in dicta, had already said that the clause was meant to exclude the children of ministers, consuls and citizens or subjects of foreign states born within the United States. The Court has repeated variants of that idea since.

The Indian Citizenship Act of 1924

One more date. In 1924, Congress passed the Indian Citizenship Act, which declared that all non-citizen Native Americans born within the territorial limits of the United States were citizens. It was signed on June 2, 1924. Think about what that implies. If the Fourteenth Amendment had made every person born on American soil a citizen, regardless of parental allegiance, Congress would not have needed to pass a statute in 1924. It passed one because, for the previous fifty-six years, the prevailing legal view was that the amendment had not reached them. The point cuts for the original-meaning argument: the clause has limits, and the Court and Congress both treated it so.

The case for the broad reading of the clause

Now the fair statement of the other side. Here is the strongest version of the opposing argument, in terms its defenders would accept.

1. The text. The clause says "all persons born." The plain reading is that everyone born here is covered, except for a short list of recognized exceptions: diplomats' children, children of occupying enemy forces, and (until 1924) members of tribes.
2. The debates. During the discussion of both the Civil Rights Act and the amendment, senators raised the question of children born to Chinese parents in California and to Romani families in Pennsylvania. Senator Edgar Cowan of Pennsylvania raised it as an objection. Senator John Conness of California replied that the children of Chinese parents born in California would be citizens. Defenders of the broad reading say that proves the drafters understood the clause to cover the children of people who were not citizens and could not become citizens.
3. Precedent. Wong Kim Ark has stood for more than a century, and the executive branch and Congress have organized the law around it, including the wording of the citizenship statute.
4. A footnote in Plyler v. Doe (1982). In a case about public schooling, Justice Brennan wrote that he could find no plausible distinction, with respect to the jurisdiction of the United States, between the phrase "within its jurisdiction" in the Equal Protection Clause and "subject to the jurisdiction thereof" in the Citizenship Clause, as applied to people unlawfully present. That was not the question before the Court, and it is not the holding. But it was said.

That is a serious argument. It deserves a serious answer.

The weakest point of the original-meaning case

I told you I would give you the weak spot, and here it is. The original-meaning case works best when it leans on Howard's and Trumbull's language about allegiance. It works least well when someone tries to stretch it past what Wong Kim Ark and the debates support.

The weak point is the Chinese example. The senators who discussed the children of Chinese parents did so in a setting where those parents were lawfully present and, in practice, permanent residents. Conness's reply supports the idea that the clause covered lawfully domiciled non-citizens. It does not clearly address a different case, a child born to parents who entered in violation of law, or to a visitor on a short stay. Nobody in the 39th Congress was debating that case, because no federal statute restricting general immigration existed in 1866. The country had no illegal immigration in the modern sense. That cuts both ways. It means you cannot claim the framers decided the question against the broad reading. It also means you cannot claim they decided it in favor.

So the slogan version, the one that says the framers obviously never meant to give citizenship to the children of people who are in the country illegally, claims too much. The framers did not address it. The honest statement is that the question is open at the edges, and the Court has never squarely held either way on the facts of a child born to parents here unlawfully or temporarily.

The better conservative argument is textual

Here is what I think a serious conservative should argue, and what a slogan cannot do.

One. The text has two conditions, and a reading that makes the second condition surplus violates the ordinary rule of interpretation that every word in a constitutional provision should do work.

Two. The 39th Congress itself explained the second condition in terms of allegiance and complete jurisdiction, as Trumbull and Howard did. It did not say the physical presence of a person on the soil was sufficient.

Three. The two early Supreme Court decisions on the clause, Elk and Wong Kim Ark, both reasoned from allegiance and domicile. Wong Kim Ark rested on lawful, permanent domicile. A claim built on Wong Kim Ark must reckon with those facts.

Four. Therefore the open question is whether a child's citizenship at birth turns on the parents' legal relationship to the country: whether it extends to the children of those present unlawfully or only temporarily. The textual case argues that it does not automatically, and it makes that case by reading the words, quoting the debates, and distinguishing the precedent.

What the textual case does not do is wave away Wong Kim Ark. A conservative who calls that decision lawless is making a political point, not a legal one. The Court decided it nearly 130 years ago, on a fair reading of common-law history, and the better path is to distinguish it on its facts rather than pretend it isn't there. The slogan, "they never meant it," collapses the first time a lawyer on the other side reads Conness's reply into the record. The textual argument survives.

To see the practical choices if you believe the law should change, read Three Roads to Changing Birthright Citizenship and Which One Works. For the method of interpretation that sits under this whole discussion, see Originalism Explained for People Who Skipped Law School, and for the amendments around this one, Citizenship, Equal Protection and the Ballot in the 14th and 15th Amendments. And for how to read what the Court actually held, as opposed to what people say it held, How to Read a Supreme Court Opinion Without a Law Degree is a good place to start. The wider debate over the Court itself is covered in The Supreme Court Questions Your Brother-in-Law Keeps Asking, Answered.

A fair verdict

The Citizenship Clause was written to end Dred Scott and to guarantee that no state could make a citizen of the United States a stranger in his own country. It did that, and the party of Lincoln wrote it. Conservatives should be proud of that history and should not try to reduce it to an immigration slogan.

At the same time, the clause has two conditions, and the men who wrote it said the second one had content. The real argument is about what content, and on that question the evidence is mixed and the case law is thin at the edges. The side that wins that argument will be the side that reads the text, reads the record, and admits the weak points.

The bottom line

• The Citizenship Clause (1868) says "born or naturalized in the United States, and subject to the jurisdiction thereof." Two conditions, not one.
• Howard and Trumbull described the second condition in terms of allegiance and complete jurisdiction. Elk v. Wilkins (1884) read it as a real limit. Wong Kim Ark (1898) held that the child of lawfully domiciled parents was a citizen.
• The weak point of the original-meaning case is that nobody in 1866 addressed children of unlawfully present or short-stay parents, so claims that the framers plainly decided it your way claim too much.
• Argue from the text and the record, not from slogans. If you want the law changed, read the road map before you pick a road.
• Read the clause, the 1866 Act, and the opinions yourself. The Constitution is at Congress.gov, and the opinions are free to read online.