‘Subject to the jurisdiction thereof.’
President Trump has asserted that birthright citizenship “was meant for the babies of slaves.” Of course, no one doubts that securing the status of the former slaves was the immediate purpose of the 14th Amendment, but that is not what the constitutional text says. It adopts a broader rule. The question is, how broad?
The modern legal argument surrounding Trump’s executive order turns on the meaning of the phrase “subject to the jurisdiction thereof” in the text of the 14th Amendment. The court last spoke on this issue at the end of the 19th century, declaring “the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.” The court then concluded that “subject to the jurisdiction thereof” was to be construed in light of the common law and American practice. It recognized three standard exceptions to the nativity rule: children born of foreign ambassadors, children born of alien enemies in hostile occupation, and children born as members of an Indian tribe that held itself apart as “an alien, though dependent, power.”
The Trump administration will have to lean heavily on a revisionist theory of the original meaning of the 14th Amendment. There are subtle differences among the competing historical claims, but the fundamental position of the revisionist theory is that the language of “subject to the jurisdiction thereof” requires that individuals not merely be subject to the laws of the United States but that they demonstrate allegiance to the United States and be “members of the political community.”
Historical revisionism is sometimes useful, but in this case it is simply wrong. Edward Bates pointed to the traditional rule and the traditional sources familiar to 19th century American lawyers in his opinion on citizenship early during the Civil War. James Kent, a New York jurist and one of the leading legal treatise writers of the early republic, had summarized the law simply as “all persons born within the jurisdiction of the United States” are native citizens. William Blackstone, the author of the treatise upon which Americans from the Revolution onward relied for their understanding of the English common law, likewise summarized, “Natural-born subjects are such as are born within the dominions of the crown of England.” Blackstone restated this in more technical terms, explaining that “within the dominions” was synonymous with “within the ligeance” of the king. Being born within those circumstances created a mutual bond between king and subject, in which the subject owes the king allegiance and the king owes the subject protection. Once established, that bond was extraterritorial; a subject leaving the king’s dominion still owed him allegiance and was still owed protection.