The Supreme Court has now held that the Fourteenth Amendment guarantees citizenship to virtually every child born on American soil, including children born to parents who are in this country illegally or only temporarily. Chief Justice Roberts’ majority opinion presents itself as an exercise in faithful originalism, grounding its conclusion in the English common law, the debates surrounding the Fourteenth Amendment, and United States v. Wong Kim Ark. While the opinion is carefully written and impressively researched, I believe it ultimately reaches the wrong conclusion because it begins with a false premise. It assumes that the English common-law doctrine of subjectship was simply transplanted wholesale into the American Constitution. Justice Thomas demonstrates that this assumption is unwarranted, and once it is removed, the majority’s historical narrative begins to unravel.
The central issue in this case is not whether English common law recognized broad jus soli, or citizenship by birth within the sovereign’s territory. Nor is it whether the Fourteenth Amendment repudiated Dred Scott. Both propositions are true. The real question is whether the framers of the Fourteenth Amendment constitutionalized the English doctrine of perpetual subjectship or instead incorporated those common-law principles consistent with the uniquely American concept of citizenship. Those are very different questions, and unfortunately the majority treats them as though they were the same.
Justice Thomas correctly observes that England spoke of subjects, while the United States speaks of citizens. Those concepts arise from fundamentally different political traditions. Under English law, allegiance flowed from birth within the King’s dominions because subjects owed perpetual fealty to the Crown. American citizenship, however, is membership in a constitutional republic. It is a political relationship, not merely a geographical accident. The majority repeatedly appeals to Blackstone and Calvin’s Case, but those authorities addressed the obligations of subjects under a monarchy, not citizens under a constitutional republic. To assume that one necessarily became the other simply because the Fourteenth Amendment adopted some common-law terminology is to assume the very point in dispute.
This becomes especially important when we reach the qualifying language of the Citizenship Clause itself. The framers did not simply declare that all persons born in the United States are citizens. They deliberately added the phrase, “and subject to the jurisdiction thereof.” Every word of the Constitution must be given effect. Yet under the majority’s interpretation, this limitation accomplishes almost nothing. Anyone physically present in the United States is generally subject to our criminal and civil laws. Tourists, business travelers, foreign students, temporary workers, and those who entered unlawfully may all be arrested, prosecuted, sued, and punished while they remain here. If this ordinary territorial jurisdiction is all the Fourteenth Amendment requires, then the qualifying language becomes little more than a verbose restatement of physical presence.
Justice Thomas offers a far more persuasive reading. The phrase “subject to the jurisdiction” refers not merely to territorial jurisdiction, but to complete political jurisdiction—that is, the full allegiance and political obligation that accompanies membership in the American polity. This understanding gives genuine meaning to the constitutional language rather than reducing it to surplusage. It also better explains why the framers included the limitation in the first place. Constitutional language is not ordinarily inserted merely to repeat what has already been said.
The majority also portrays the Reconstruction debates as overwhelmingly supporting its position. That characterization is difficult to sustain. The debates surrounding both the Civil Rights Act of 1866 and the Fourteenth Amendment repeatedly employed the language of complete jurisdiction and allegiance. Senator Lyman Trumbull explained that the phrase meant persons “not owing allegiance to anybody else.” That explanation deserves considerably more attention than the majority gives it. Instead, Chief Justice Roberts effectively equates complete jurisdiction with ordinary territorial jurisdiction, but those are not the same thing. A tourist certainly owes obedience to our laws while visiting this country, yet no one would seriously suggest that he has transferred his political allegiance to the United States. The distinction between legal obedience and political membership is precisely the distinction the dissent insists upon, and I believe rightly so.
The majority attempts to answer this objection by returning again and again to the English common law. Yet this simply circles back to the original assumption. The question is not whether English law recognized territorial subjectship. The question is whether the Fourteenth Amendment incorporated that doctrine without modification. Justice Thomas demonstrates that the American understanding of citizenship had already departed from English notions of perpetual allegiance. The Constitution does not speak of subjects because Americans rejected the political theory underlying subjectship itself. It therefore cannot simply be assumed that English rules governing subjects automatically became constitutional rules governing citizens.
The majority likewise places enormous weight upon United States v. Wong Kim Ark, treating it as though it settled the present controversy beyond dispute. It did not. Wong Kim Ark was born to parents who were lawful, permanent residents domiciled in the United States. No one disputes those facts. The question before the Court today involves children born to parents who are here unlawfully or only temporarily. Those are materially different circumstances.
Justice Thomas carefully documents that numerous respected legal commentators writing shortly after Wong Kim Ark understood the decision to apply to children of permanently domiciled resident aliens, not to every person who happened to be physically present within the country’s borders. That evidence is highly significant because it reflects how lawyers and scholars closest in time to the decision actually understood its holding. The majority largely dismisses these authorities because they postdate the Fourteenth Amendment, but that misses the point. They are relevant because they illuminate how Wong Kim Ark itself was received and interpreted by the legal profession. Far from viewing the decision as establishing universal birthright citizenship, many contemporaries understood it to leave intact the distinction between permanent residence and temporary presence.
This exposes what may be the majority’s greatest weakness. It quietly expands Wong Kim Ark far beyond its actual facts while insisting that it is merely following precedent. A case involving lawful permanent residents becomes the constitutional foundation for citizenship extending to illegal entrants, tourists, temporary visa holders, and even those who deliberately travel here for the sole purpose of giving birth. That is not merely applying precedent; it is substantially enlarging it.
Justice Alito forcefully illustrates the consequences of the majority’s rule by discussing birth tourism. Under today’s decision, a foreign national may intentionally travel to the United States shortly before childbirth, remain only long enough to deliver the child, return home immediately afterward, and nevertheless secure American citizenship for that child as a constitutional entitlement. The majority treats this as little more than a policy objection. It is far more than that. It demonstrates the implausibility of the majority’s historical account. It is exceedingly difficult to believe that the framers of the Fourteenth Amendment, who repeatedly discussed allegiance, political jurisdiction, and national membership, intended to constitutionalize citizenship for individuals whose only connection to the United States consisted of a brief visit timed for childbirth.
None of this means that Congress lacks authority to address these questions. Congress possesses broad power over naturalization and has repeatedly extended citizenship beyond the minimum required by the Constitution. Children born abroad to American parents are citizens by statute, not because the Fourteenth Amendment compels that result. Likewise, Congress may choose, as a matter of legislative policy, to confer citizenship more broadly if it believes doing so serves the national interest. But that policy determination belongs to Congress, not to the judiciary. The Court’s duty is to determine what the Constitution requires, not what it believes modern immigration policy ought to be.
There is no denying that difficult human questions accompany this issue. Millions of individuals born in this country to parents who violated our immigration laws have lived here their entire lives. Many know no other home. Those realities naturally evoke sympathy, and reasonable people may disagree about how Congress should address them. Yet sympathy cannot determine constitutional meaning. If constitutional interpretation begins yielding to contemporary policy concerns, then it ceases to be constitutional interpretation at all.
In the end, I believe the majority’s opinion rests upon a historical premise that Justice Thomas convincingly refutes. The English law of subjectship cannot simply be equated with American citizenship. The phrase “subject to the jurisdiction thereof” cannot be reduced to ordinary territorial jurisdiction without draining it of independent meaning. The Reconstruction debates are far more supportive of the dissent’s understanding of complete political jurisdiction than the majority acknowledges, and Wong Kim Ark does not compel the sweeping rule the Court announces today.
This decision will undoubtedly be praised as a triumph of constitutional fidelity. I believe history will judge it differently. Rather than faithfully applying the original meaning of the Fourteenth Amendment, the Court has transformed a constitutional provision intended to define political membership into one that makes citizenship largely a matter of geographic happenstance. In doing so, it has constitutionalized a rule that the text does not clearly command, that the historical evidence does not unequivocally support, and that the dissent demonstrates was by no means the settled understanding of those who framed and ratified the Fourteenth Amendment. I believe the dissent has the better of the argument, and I suspect this debate is far from over.
