Rethinking "Subject to the Jurisdiction Thereof"

A Constitutional and Historical Case for Limiting Birthright Citizenship

Preface

The Supreme Court issued a ruling a few hours ago in the case of Trump v. CASA Inc. (No. 24A884. Argued May 15, 2025—Decided June 27, 2025*)

This case involves Executive Order No. 14160, addressing birthright citizenship. The Court’s opinion was limited to the issue of Universal Injunctions by District Court judges that block the implementation of an executive order or major new federal statutes everywhere and for everyone in the country. The Supreme Court rejected this practice, reserving that power exclusively for itself.

It did not address the issue of interpreting the 14th Amendment and its Citizenship Clause, which has been understood to mean that children of illegal aliens born while here automatically obtain full US citizenship. I audaciously attempt to anticipate how the Court might reason on the merits of the Birthright Executive Order when eventually they hear that case on its merits.

Abstract

This article reexamines the meaning of "subject to the jurisdiction thereof" in the Citizenship Clause of the Fourteenth Amendment. Contrary to modern interpretations, the Clause was never intended to grant birthright citizenship to the children of foreign nationals who are present in the United States only temporarily or in violation of immigration law. Drawing on historical context, constitutional text, and sovereign theory, the article proposes a more faithful standard rooted in original public meaning and political allegiance. It argues for a rearticulation of the Citizenship Clause that honors the constitutional limits of jurisdiction, particularly in cases involving unlawful presence, temporary visas, and dual citizenship.

I. Introduction

The modern doctrine of birthright citizenship interprets the Fourteenth Amendment's Citizenship Clause as extending U.S. citizenship to all individuals born on U.S. soil, regardless of their parents' immigration status. However, this interpretation distorts the original public meaning of the clause, particularly the qualifier "subject to the jurisdiction thereof." This article contends that a historically and constitutionally grounded interpretation limits citizenship at birth to children born to those who owe complete and exclusive allegiance to the United States.

II. The Textual and Structural Meaning of "Subject to the Jurisdiction thereof…"

The Citizenship Clause of the Fourteenth Amendment states:

"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 phrase "subject to the jurisdiction thereof" must be interpreted as carrying substantive meaning, beyond mere physical presence or susceptibility to arrest. If the framers intended citizenship to apply solely on the basis of birth location, the jurisdictional language would have been superfluous. Instead, the Clause was designed to restrict citizenship to those not only born within U.S. borders but also under its sovereign, political authority.

III. The Historical Context and Intent of the Fourteenth Amendment

Ratified in 1868, the Fourteenth Amendment sought to reverse Dred Scott v. Sandford and secure the citizenship of emancipated slaves. The debates of the Thirty-Ninth Congress, particularly the statements of Senator Jacob Howard, show that the framers intended to exclude children of foreign nationals and diplomats:

"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."

This exclusionary understanding reflects the principle that birthright citizenship requires not only physical birth in the United States but also complete subjection to its jurisdiction.

IV. Diplomatic Immunity and Exclusive Jurisdiction

Diplomatic immunity underscores the principle of exclusive sovereign jurisdiction. Diplomats are lawfully present in the U.S. yet are not subject to its jurisdiction in the constitutional sense because they remain under the legal and political authority of their home nations. Children born to diplomats in the U.S. are therefore excluded from automatic citizenship.

This example demonstrates that jurisdiction must be understood not merely as the capacity to enforce laws, but as political allegiance and sovereign authority. Foreign nationals, particularly those present on temporary visas or unlawfully, retain political allegiance to their countries of origin and are not under complete U.S. jurisdiction.

V. Extradition and Conditional Jurisdiction

A further illustration of limited jurisdiction is extradition. A foreign national convicted in the U.S. may still be claimed by their home country under extradition treaties, which the U.S. is often obliged to honor. In contrast, U.S. citizens are not subject to foreign extradition without consent. This asymmetry reveals that foreign nationals are only conditionally under U.S. jurisdiction and remain subjects of a foreign sovereign.

Imagine an illegal alien who is convicted of a crime and imprisoned. She is also wanted in her home country for criminal prosecution. Under diplomatic terms, the foreign country may claim the right to extradite her, even though she resides in the U.S. Because the foreign nation retains jurisdiction over extradition, she is not fully subject to the jurisdiction of the US because the US cannot refuse to produce her. A citizen could defeat extradition because foreign countries have no jurisdiction over U.S. citizens.

VI. The Problem of Dual Citizenship

Dual citizenship presents a jurisdictional paradox. A child born to foreign nationals on U.S. soil may also acquire citizenship from the parents' country by jus sanguinis. This dual allegiance demonstrates that the child is not exclusively subject to U.S. jurisdiction. A foreign sovereign can claim legal and political rights over the child, contradicting the requirement of undivided allegiance implicit in the Citizenship Clause.

Imagine a foreign country that requires military service as a condition of citizenship, a dual citizen wishes to avoid. Unless the person relinquishes foreign citizenship, he is bound by the laws of that country in addition to ours and cannot be solely “subject to the jurisdiction” of the U.S. As long as a person retains the right to vote or hold office, or serve in the military in more than one country, they cannot be considered to be completely “subject to the jurisdiction” of the U.S.

VII. Misreading Wong Kim Ark

In United States v. Wong Kim Ark, the Supreme Court granted citizenship to a child born in the U.S. to Chinese nationals who were legally domiciled in the country. However, Wong did not address the status of children born to parents who are unlawfully present, transient, or who maintain strong legal and political ties to foreign nations. The holding should be read narrowly, applicable only to lawful, permanent residents who have submitted to U.S. authority.

At the time, there were no contemporary immigration laws, so birthright was the only means to obtain citizenship, unlike today, where legal entry is a prerequisite for obtaining citizenship by prescribed procedures. In Wong, the court defeated an attempt to deny citizenship to a child born of legal residents based on race, conflicting with the Equal Protection doctrine since European parents in similar circumstances would not be denied citizenship for their child.

While often quoted as a landmark case supporting birthright citizenship, it is irrelevant to the question of illegal presence in the country.

VIII. Policy Considerations and Sovereign Integrity

Unqualified birthright citizenship undermines national sovereignty by incentivizing illegal entry, birth tourism, and strategic manipulation of immigration status. Citizenship entails voting rights, eligibility for public office, and political membership. It should reflect meaningful ties and exclusive allegiance to the United States and freedom from claims of jurisdiction by foreign countries.

The U.S. has a compelling interest in ensuring that citizenship is not inadvertently conferred on individuals who have no intention of permanent integration. A restrictive interpretation of the Citizenship Clause safeguards the integrity of the American political community. The legal path to citizenship is discretionary to the country that grants it. Birthright citizenship removes that discretion to judge acceptance based on the rational interests of the government. Not everyone who may want to reside here is entitled to citizenship. For it to be otherwise would render immigration laws meaningless.

IX. Proposed Legal Standard

A constitutional standard faithful to the original meaning of the Fourteenth Amendment would require:

1. The child is born on U.S. soil; and

2. At the time of birth, the parent(s):

o Are U.S. citizens; or

o Hold lawful permanent resident status; or

o Are lawfully present with intent to remain permanently and not claimable by another sovereign; and

o Are not under diplomatic immunity or temporary international status.

o Opportunities to maintain dual citizenship are relinquished.

This standard excludes children of diplomats, unlawful entrants, temporary visa holders without domicile, and foreign nationals whose countries claim dual allegiance.

X. Conclusion

The Citizenship Clause was never intended to create unconditional jus soli citizenship. Its jurisdictional requirement was designed to exclude persons not fully and exclusively subject to U.S. sovereignty. A reconsideration of modern birthright citizenship doctrine is warranted to restore constitutional coherence and protect national integrity. By returning to the Clause's original public meaning, courts and policymakers can realign citizenship with the enduring principles of allegiance, sovereignty, and responsible membership in the American republic.