Birthright citizenship is controlled by the Fourteenth Amendment’s Citizenship Clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” Everyone agrees that “subject to the jurisdiction thereof” excludes children born to Native Americans who had not renounced tribal loyalty or received citizenship through treaties and the common law exceptions of children born to foreign diplomats or invading armies. Donald Trump’s Executive Order “Protecting the Meaning and Value of American Citizenship” controversially adds two more exceptions: children born to mothers not legally in the country and children born to mothers only temporarily present with, in both cases, fathers who are neither US citizens nor permanent residents.
Civil-War-era scholars Martha S. Jones and Kate Masur weighed in on the controversy with an amicus brief supporting the challenge to the order in Trump v. Barbara. Their brief compellingly documents antebellum Black Americans’ expansive sense of citizenship, especially when Dred Scott’s denied them US citizenship. But because Trump agrees that the Citizenship Clause was primarily intended to invalidate that aspect of Dred Scott, the amicus brief’s most important contribution for the controversy is to reiterate Gerald Epps’ argument that the Citizenship Clause allows no more exceptions.
Nonetheless, Trump’s Solicitor General suggests another way that attention to the Civil War era undermines Trump’s allegedly originalist interpretation when he makes allegiance the decisive issue by claiming that framers of the Fourteenth Amendment linked the words “subject to the jurisdiction thereof” to a display of allegiance, which the two excluded classes lack because they cannot establish legal domicile in the country. The Citizenship Clause, he writes, “extends citizenship only to those who are ‘completely subject’ to the United States’ ‘political jurisdiction’—in other words, to people who owe ‘direct and immediate allegiance’ to the Nation and may claim its protection.”
As Trump’s opponents note, that argument is problematic because the Fourteenth Amendment mentions neither “allegiance” nor “domicile.” But history raises a more fundamental problem: the framers of the amendment were concerned about allegiance, but not that of immigrants or those temporarily in the country. When the Fourteenth Amendment was proposed in 1866 the framers had to deal with Confederates who had renounced their allegiance to the nation. Indeed, in early 1866 President Andrew Johnson had not yet declared the Confederates’ insurrection over, and Section 3 of the amendment imposed disabilities on Confederates who explicitly broke their oaths to the Constitution. Yet the language of the Citizenship Clause did not deny citizenship to children born to Confederates as they waged war. Even Confederates who renounced allegiance were subject to US jurisdiction.