The discourse surrounding the 14th Amendment’s citizenship clause has resurfaced in light of President Donald Trump’s executive order on birthright citizenship. However, the debate cuts deeper than unlawful presence; it challenges the automatic citizenship of children born to individuals temporarily and legally present in the U.S., focusing instead on what truly constitutes allegiance and domicile, according to the framers of the 14th Amendment.
The English principle of jus soli, or the “right of the soil,” often cited in discussions about subjectship, was deeply intertwined with feudal concepts. Renowned jurist, William Blackstone, explained that all individuals born within the king’s dominions owed allegiance immediately upon birth. This perpetual obligation extended even to the children of foreign visitors, a standpoint the United States firmly rejected upon declaring independence.
The American approach, crystallized in the 14th Amendment, aligns citizenship with the principle of consent to governance, distancing itself from ideas inherited from the British monarchy. The Declaration of Independence underscores this departure by stating that governments derive their powers from “the consent of the governed,” thereby abolishing allegiance to the British crown or any sovereign persona. This foundation was echoed by legal scholars such as St. George Tucker, who, in his adaptation of Blackstone’s Commentaries, emphasized that in the United States, allegiance is due solely to the state.
The 14th 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.” This clause does not adhere to a transient presence as a basis for citizenship. It implies a complete jurisdiction, demanding full allegiance and domicile, as elucidated by Senator Jacob Howard, the drafter of the citizenship clause. Howard’s definition of jurisdiction entailed a full and unreserved allegiance akin to that of established citizens, thereby excluding temporary foreign visitors. This interpretation also aligns with the Elk v. Wilkins ruling, which found that Native Americans who maintained tribal allegiance were not subject to U.S. jurisdiction in full.
Interestingly, the Supreme Court’s decision in Wong Kim Ark is left unaffected by these interpretations. Here, the child of Chinese nationals, who were domiciled in the U.S., was declared a citizen, highlighting the pivotal role of domicile and intention to remain, which diverges from mere transient residence.
In conclusion, the citizenship clause of the 14th Amendment reflects a deliberate move away from feudal English practices and towards a republican notion of citizenship rooted in domicile and allegiance by choice. The Amendment’s framers intended to enshrine these principles, distinguishing between individuals temporarily residing in the U.S. and those who have selected it as their permanent home. For a more detailed examination, visit the original analysis on SCOTUSblog.