Executive Summary

The phrase “subject to the jurisdiction thereof” in the Citizenship Clause of the Fourteenth Amendment to the United States Constitution has been a focal point of legal and political debate since the Amendment’s ratification in 1868. Its interpretation bears directly on the meaning and scope of birthright citizenship in the United States. This white paper examines the legal origins, judicial interpretations—particularly by the U.S. Supreme Court—and modern implications of this phrase. At issue is whether all individuals born on U.S. soil are automatically entitled to U.S. citizenship, or whether exceptions exist for certain categories of individuals who may not be “subject to the jurisdiction” of the United States in the full constitutional sense.

I. Introduction: The Text and Context of the Fourteenth Amendment

The Citizenship Clause of the Fourteenth Amendment reads:

“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.”

This clause was adopted following the Civil War to overturn the Supreme Court’s ruling in Dred Scott v. Sandford (1857), which had held that persons of African descent could not be citizens. The intention was to guarantee citizenship to formerly enslaved persons and their descendants.

However, the insertion of the limiting phrase “subject to the jurisdiction thereof” was not incidental. It implies that not all persons born on U.S. soil automatically acquire citizenship. The scope and meaning of this qualification have been a matter of judicial interpretation and constitutional theory.

II. Original Meaning and Legislative Intent

A. Drafting History

During the Senate debates in 1866, Senator Jacob Howard, who introduced the language of the Citizenship Clause, explained that “subject to the jurisdiction” meant “not owing allegiance to anybody else” and referred to “complete jurisdiction; not owing allegiance to any other government.” This was taken to exclude foreign diplomats and invading armies.

Senator Lyman Trumbull, a key supporter of the Amendment and co-author of the Civil Rights Act of 1866 (which used similar language), clarified that being “subject to the jurisdiction” meant subject to “complete jurisdiction,” not merely the obligation to follow local laws (as would apply to any person present in the territory, including tourists and aliens), but a political and legal allegiance to the United States.

B. Contemporary Examples of Exclusion

Examples cited at the time as not “subject to the jurisdiction” included:

Children of foreign diplomats (who are immune from local jurisdiction under international law), Members of invading armies (who are enemies of the state), Native Americans who maintained tribal allegiance and were not taxed (until the Indian Citizenship Act of 1924), Possibly temporary visitors or illegal aliens, although the historical record is less clear on these points.

III. Judicial Interpretation by the U.S. Supreme Court

A. Elk v. Wilkins (1884)

The Court ruled that John Elk, a Native American born into a tribe, was not a citizen under the Fourteenth Amendment because he was born subject to tribal jurisdiction, not that of the United States. The Court held that being “subject to the jurisdiction” required “direct and immediate allegiance” to the United States.

This decision made clear that mere birth on U.S. soil was not sufficient; full subjection to U.S. legal and political jurisdiction was also necessary.

B. United States v. Wong Kim Ark (1898)

This is the landmark case on birthright citizenship. Wong Kim Ark was born in San Francisco to Chinese parents who were legally domiciled U.S. residents but not citizens, due to the Chinese Exclusion Act.

The Court held that Wong Kim Ark was a U.S. citizen by birth, emphasizing the common law principle of jus soli (citizenship by place of birth) and relying on English common law precedent.

Importantly, the Court interpreted “subject to the jurisdiction” to exclude only those who were not subject to U.S. law at all, such as children of foreign diplomats or enemy occupiers—not aliens who were lawfully domiciled or residing in the U.S.

This ruling enshrined birthright citizenship for most persons born on U.S. soil, regardless of the citizenship status of their parents.

C. Plyler v. Doe (1982)

Although not a citizenship case, Plyler held that undocumented immigrant children were entitled to equal protection under the Fourteenth Amendment. The Court noted that these children were “subject to the jurisdiction” of the U.S. because they were subject to its laws and punishable by them.

This was taken by many as confirming that even undocumented aliens were within the jurisdiction in a constitutional sense—though critics argue that the case did not directly deal with the Citizenship Clause.

IV. Modern Controversy and Legal Ambiguities

The modern debate centers on whether children of illegal immigrants or temporary visitors are constitutionally entitled to birthright citizenship.

Some scholars and policymakers argue that the original meaning of “subject to the jurisdiction” excluded such cases. They point to the intentions of the drafters, who sought to limit citizenship to those with full and lasting allegiance to the U.S.

Others argue that Wong Kim Ark resolved this issue by adopting a broad reading of jurisdiction, encompassing nearly all persons physically present on U.S. soil (excluding diplomats and soldiers of foreign armies).

Attempts to reinterpret or narrow this scope through executive orders, statutory amendments, or court challenges have so far failed or remain legally unresolved.

V. Doctrinal Tensions and Future Challenges

Several key tensions remain:

Allegiance vs. Legal Presence: Should jurisdiction depend on legal immigration status or on broader principles of obedience to U.S. law? Textualism vs. Precedent: Can Wong Kim Ark be revisited based on a strict originalist or textualist reading of the Fourteenth Amendment? Constitutional Amendment vs. Statutory Change: Can Congress restrict birthright citizenship by statute, or would a constitutional amendment be required? International Law and Reciprocity: Does the broad jus soli principle risk making the U.S. an outlier among developed nations that have moved toward jus sanguinis (citizenship by blood)?

VI. Policy Implications and Recommendations

Clarification through Legislation: Congress may attempt to define “subject to the jurisdiction” through clarifying statutes, but these would almost certainly be challenged in court and reviewed under Wong Kim Ark. Judicial Review: The Supreme Court may eventually need to readdress this issue directly, especially if legislative or executive action creates a concrete legal controversy. Public Debate and Constitutional Discourse: Educating the public and policymakers on the historical, legal, and philosophical meaning of jurisdiction is critical for an informed constitutional dialogue.

Conclusion

The phrase “subject to the jurisdiction thereof” was intended as a substantive limitation on birthright citizenship, reflecting both allegiance and legal subjection. While Wong Kim Ark established a broad reading consistent with jus soli traditions, it left room for future re-examination, particularly in the context of illegal immigration or transient presence.

As debates over immigration and national identity continue, the true scope and meaning of this phrase remain one of the most contested questions in American constitutional law. Whether it signifies simple subjection to U.S. law or a deeper political allegiance will define the boundaries of American citizenship for generations to come.

Appendices

Full text of Elk v. Wilkins (1884) Full text of United States v. Wong Kim Ark (1898) Senate Debates on the Fourteenth Amendment (1866) Comparative analysis of citizenship laws in major democratic countries

Prepared by:

[Nathan Albright, Torah University Press]

Date: July 1, 2025