The case, Trump v. Barbara, is governed by the first sentence of the Fourteenth Amendment, adopted in 1868, which 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 immediate purpose of this citizenship clause was to overrule the Supreme Court’s decision in Dred Scott v. Sandford (1857) that the children of freed slaves were not citizens of the US. The amendment’s drafters sought to make crystal clear that citizenship extended equally to all those born here.
While the amendment’s specific target was Dred Scott, it was written more broadly, not merely to prohibit racial discrimination or to make the newly freed slaves citizens but to declare citizenship a constitutional right of everyone born in the United States and “subject to the jurisdiction thereof.” Like the Fourteenth Amendment more generally, the citizenship clause was a guarantee of equality. Citizenship, after all, is the foundation of one’s belonging to and status in a political community, and it is the source of important rights. Equal citizenship is the foundation of democracy, and the framers sought to prevent politicans from eroding that foundation.
The central question in the case concerns the meaning of “subject to the jurisdiction thereof.” The Trump administration argues that the phrase restricts citizenship to children of parents who have made the US their “domicile,” or permanent home, and are therefore “completely” subject to our jurisdiction and not subject to the jurisdiction of any other sovereign. Because foreign nationals here on temporary visas, such as students, tourists, and temporary workers, have not made the United States their domicile, the administration argues, they are not “subject to the jurisdiction” of the United States. And because foreign nationals who are here unlawfully are not authorized to make the US their permanent home, even if they would like to do so, they, too, are not subject to US jurisdiction. In this view, only the children of citizens and permanent resident immigrants become citizens by birth.
There is a reason—actually many reasons—why not a single judge has found this argument persuasive. First, the text of the citizenship clause does not use the word “domicile.” That concept, which turns on an individual’s intent to remain in a particular place, is governed by state law and has never been used to define US citizenship. The Trump argument would require the Court to read into the amendment a word that is not there. So much for “originalism,” “textualism,” and merely enforcing the Constitution’s plain terms.