v3 Birthright Citizenship

3.
CHARLES (DO NOT DELETE)
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Decoding the Fourteenth Amendments Citizenship

Clause: Unlawful Immigrants, Allegiance, Personal
Subjection, and the Law
Patrick J. Charles*
TABLE OF CONTENTS
I. INTRODUCTION......................................................................................... 212
II. DECODING BIRTHRIGHT CITIZENSHIP FROM THE FOUNDING TO THE
FOURTEENTH AMENDMENT ......................................................................... 215
A. Birthright Citizenship and the 1866 Civil Rights Act ............... 220
B. Birthright Citizenship and the Fourteenth Amendment ............ 225
III. DEFINING CITIZENSHIP AND WHO IS SUBJECT TO THE JURISDICTION
THEREOF .................................................................................................... 231
IV. THE BIRTHRIGHT CITIZENSHIP DEBATE IN THE LATE NINETEENTH
CENTURY ..................................................................................................... 237
A. The Personal Subjection and Allegiance View of
Subject to the Jurisdiction Thereof ....................................... 240
B. The Internationalist or Not Subject to Any Foreign Power
View of Subject to the Jurisdiction Thereof .......................... 245
V. WONG KIM ARK, THE SUPREME COURT, AND OUR CURRENT BIRTHRIGHT
CITIZENSHIP JURISPRUDENCE ...................................................................... 247
VI. CENTERING THE POLITICAL DEBATE ON BIRTHRIGHT CITIZENSHIP AND
IMMIGRATION REFORM ................................................................................ 253
VII. CONCLUSION ........................................................................................ 260
* Patrick J. Charles is the author of numerous articles on legal history and standards of review,
including The Constitutional Significance of a Well-Regulated Militia Asserted and Proven with Commentary
on the Future of Second Amendment Jurisprudence, 3 NE. L.J. 1 (2011), The Plenary Power Doctrine and the
Constitutionality of Ideological Exclusion: A Historical Perspective, 15 TEX. REV. L. & POL. 61 (2010), and
Arms for Their Defence?: An Historical, Legal, and Textual Analysis of the English Right to Have Arms
and Whether the Second Amendment Should Be Incorporated in McDonald v. City of Chicago, 57 CLEV. ST.
L. REV. 351 (2009). Mr. Charles received his J.D. from Cleveland-Marshall School of Law, and his B.A. in
History and International Affairs from the George Washington University. He is an historian for the United
States Air Force 352nd Special Operations Group stationed at Mildenhall, United Kingdom, and an
independent consultant on constitutional matters. The views expressed in this article are solely the authors
and not those of the United States Air Force or the Department of Defense. The author would like to thank
Richard L. Aynes (Akron), David F. Forte (Cleveland-Marshall), and Matthew Lister (Villanova) for
providing comments and feedback.
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Washburn Law Journal
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I. INTRODUCTION
One of the most controversial issues in American constitutional law is
that of birthright citizenship and its interrelation with unlawful immigrants.
The Fourteenth Amendment prescribes the constitutional rule: 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.1 These
twenty-eight words have fueled numerous constitutional questions on the
matter. Are the children of unlawful immigrants subject to the jurisdiction
thereof within the meaning and intent of the Framers? Is every person born
in the territorial United States, regardless of the parents immigration status, a
citizen? Does the Fourteenth Amendment grant Congress any powers to
legislate who is subject to the jurisdiction thereof, to include the children of
unlawful immigrants?
Naturally, the answers to these questions differ depending on who is
asked. If we focus solely on legal academia, some scholars take the view that
the children of unlawful immigrants are not citizens. This interpretation rests
on the view that unlawful immigrants cannot conceivably fall under the
complete jurisdiction of the United States, and therefore cannot be granted
citizenship in the spirit of the Fourteenth Amendment.2 A similar scholarly
approach adopts the view that the children of unlawful immigrants are citizens
of the United States with the caveat that Congress may exclude them through
the plenary power doctrine.3 While this scholarly contingent agrees that the
children of unlawful immigrants are not within the spirit of the Fourteenth
Amendment, it recognizes that the U.S. Code must be amended in order to
legally exclude the children of unlawful immigrants from citizenship.4
Opponents to either of these exclusionist views, what they term as the
consensualist viewpoint, assert that almost all persons born in the United
States must be citizens within the meaning and intent of the Fourteenth
1. U.S. CONST. amend. XIV, 1.

2. See Brief for the Claremont Institute Center for Constitutional Jurisprudence as Amicus Curia
Supporting Respondents at 8, Hamdi v. Rumsfield, 542 U.S. 507 (2004) (No. 03-6696); PETER H. SCHUCK &
ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY 8587 (1985);
John C. Eastman, Politics and the Court: Did the Supreme Court Really Move Left Because of Embarrassment
over Bush v. Gore?, 94 GEO. L.J. 1475, 148687 (2006); Charles Wood, Losing Control of Americas Future
The Census, Birthright Citizenship, and Illegal Aliens, 22 HARV J.L. & PUB. POLY 465, 503 (1999).
3. See Oforji v. Ashcroft, 354 F.3d 609, 62021 (7th Cir. 2003) (Posner, J., concurring); Lino A. Graglia,
Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy, 14 TEX. REV. L. & POL. 1 (2009);
William Ty Mayton, Birthright Citizenship and the Civic Minimum, 22 GEO. IMMIGR. L.J. 221, 228 (2008); George F.
Will, An Argument To Be Made About Immigrant Babies and Citizenship, WASH. POST, Mar. 28, 2010,
http://www.washingtonpost.com/wp-dyn/content/article/2010/03/26/AR2010032 603077.html; Edward J. Erler,
Citizenship
and
the
Fourteenth
Amendment,
PUBLICSQUARE.NET
(April
19,
2011),
http://publicsquare.net/citizenship-and-the-fourteenth-amendment; Matthew Spalding, The 14th Amendment Doesnt
(Aug.
30,
2010),
Make
Illegal
Aliens
Children
Citizens,
USNEWS
http://www.usnews.com/opinion/articles/2010/08/30/14th-amendment-doesnt-make-illegal-aliens-children-citizens.
4. It is important to note that the Immigration and Nationality Act does not clarify the Fourteenth
Amendment. It merely restates its text verbatim. See 8 U.S.C. 1401(a) (2006).
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Decoding the Citizenship Clause
213
Amendment, excluding the children of Indians and foreign ministers.5 Take

for instance Gerald L. Neuman, who concludes that the status of the alien
parents is irrelevant when interpreting the Fourteenth Amendment.6 This
interpretation guarantees birthright citizenship to any children born of
permanent residents, lawful nonimmigrants, or unlawfully present
immigrants.7 Neuman believes that any interpretation asserting otherwise,
such as limiting birthright citizenship to children of citizens and permanent
residents is revisionist and unsupported by the historical record.8
Neuman is not the only scholar to take a strong stance against excluding
the children of unlawfully present aliens. Garrett Epps similarly concludes
that the history of the Amendments framing lends no support to the idea that
native-born American children should be divided into citizen and non-citizen
classes depending on the immigration status of their parents.9 Arguably
providing the most detailed legislative history to date, Epps contends that the
constitutional text is straightforward. He interprets the phrase subject to the
jurisdiction thereof as applying to the moment of birth and not limited by the
immigration status of the parents.10 In other words, Epps believes the legal
question of birthright citizenship rests on whether the child is subject to
American law at birth, which would make almost every child born on U.S.
territory subject to the jurisdiction thereof.
A common rebuttal to this interpretation is that it prescribes a
constitutional redundancy. Given the Fourteenth Amendment already
requires birth in the territorial United States as a textual condition, it is
asserted that it is superfluous to interpret subject to the jurisdiction thereof
as being merely subject to the laws.11 Thus, critics assert that subject to
the jurisdiction thereof must mean something more such as an affirmation of
national consent or complete jurisdiction.12
It is interesting that both constitutional interpretations are rooted in the
historical record, yet both claim the other is misinterpreting the drafters
original intent. Perhaps the problem rests in the methodological approach
5. For the two most prominent opponents of exclusionist views see GERALD L. NEUMAN, STRANGERS TO THE
CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW 16587 (1996) and Garrett Epps, The Citizenship
Clause: A Legislative History, 60 AM. U. L. REV 331 (2010). See also Matthew Ing, Birthright Citizenship, Illegal
Aliens, and the Original Meaning of the Citizenship Clause, 45 AKRON L. REV. (forthcoming 2012), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1653650; Matthew J. Lister, Citizenship, in the Immigration
Context, 70 MD. L. REV 175, 20506 (2010); Mark Shawhan, By Virtue of Being Born Here: Birthright Citizenship
and the Civil Rights Act of 1866, 15 HARV. LATINO L. REV. (forthcoming 2012), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1675876; Michael Ramsey, Originalism and Birthright
Citizenship (Part Two), THE ORIGINALISM BLOG, (July 1, 2011), http://originalismblog.typepad.com/the-originalismblog/2011/07/originalism-and-birthright-citizenship-part-twomichael-ramsey.html.
6. NEUMAN, supra note 5, at 165.
7. Id.
8. Id. at 166.
9. Epps, supra note 5, at 339 (emphasis added).
10. Id. at 333.
11. For an example of this line of argument, see Graglia, supra note 3, at 56.
12. For a list of academics supporting this approach, see supra notes 23.
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employed by either side. Scholars on both sides of the debate seem to employ
historical evidence in a manner that breaks the bands of historical elasticity.
Scholars supporting a restrictive Fourteenth Amendment equate the status of
Indians with unlawful immigrants often without providing a proper legal
correlation. Scholars supporting a broad interpretation of the Fourteenth
Amendment leave out the importance of domicile and residence in defining
political rights to include citizenship, especially their link with the legal tenets
of temporary allegiance and personal subjection.13 Meanwhile, both sides of
the scholarly debate have mischaracterized nineteenth-century conceptions of
international law and its importance in the birthright citizenship debate.
The purpose of this Article is not to deduce original intent, meaning, or
understanding by comparing and contrasting these modern, yet divergent,
scholarly interpretations of the Fourteenth Amendments Citizenship
Clause.14 Instead, this Article seeks to examine the legal tenets of birthright
citizenship in the late nineteenth century anew and concludes the Citizenship
Clause is not an absolute command that may be supplemented by legislation
dependant on the tenets of allegiance, personal subjection, and international
norms.15 From the 1866 Civil Rights Act16 through the Supreme Courts
decision in United States v. Wong Kim Ark,17 this Article will trace the legal
tenets of birthright citizenship as a means to better understand the means and
bounds of the Citizenship Clause.
Part II of this Article discusses birthright citizenship from the founding
era to its ratification in the Fourteenth Amendment.18 Part III discusses the
first attempt to legislate who was subject to the jurisdiction of the United
States, and its importance in understanding the constitutional scope of the
Citizenship Clause.19 Part IV traces the diverging interpretations of the
Citizenship Clause from 1875 before the landmark decision Wong Kim Ark.20
Part V addresses the holding in Wong Kim Ark, whether it is consistent with
13. For the importance of temporary allegiance and political rights, see Patrick J. Charles,
Representation Without Documentation?: Unlawfully Present Aliens, Apportionment, the Doctrine of
Allegiance, and the Law, 25 BYU J. PUB. L. 35, 8285 (2011). See also Christopher R. Green, The Original
Sense of the (Equal) Protection Clause: Pre-Enactment History, 19 GEO. MASON U. CIV. RTS. L.J. 1, 3443
(2008) (discussing the allegiance for protection doctrine).
14. For a summary of these different interpretational approaches, see Lawrence B. Solum, District of
Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 92655 (2009) (discussing the different
originalist approaches in light of the Second Amendment).
15. For a previous attempt at this approach, see generally Bernadette Meyler, The Gestation of
Birthright Citizenship, 18681898 States Rights, the Law of Nations, and Mutual Consent, 15 GEO. IMMIGR.
L.J. 519 (2001). This article disagrees with many of Meylers conclusions but agrees that the scholarly debate
in the nineteenth century provides important historical evidence that can settle the interpretative debate.
16. Ch. 31, 14 Stat. 27 (1866) (codified as amended 18 U.S.C. 242 (2006)).
17. 169 U.S. 649 (1898).
18. See infra Part II.
19. See infra Part III.
20. See infra Part IV.
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215
the original understanding of the Fourteenth Amendment, and whether it

prevents excluding the children of unlawful aliens from citizenship.21
Lastly, Part VI seeks to center the political debate concerning curtailing
birthright citizenship. Similar to the divergent scholarly interpretations of the
Citizenship Clause, the political debate is far from objective in that both sides
make broad generalizations about the constitutionality and effectiveness of
curtailing birthright citizenship. In particular, Part VI discusses how the
passage of such legislation may come about and the policy considerations that
Congress must weigh before enacting it.22 Part VI seeks neither to support
nor oppose legislation limiting birthright citizenship. It only seeks to guide a
responsible discourse on the potential of limiting birthright citizenship.
II. DECODING BIRTHRIGHT CITIZENSHIP FROM THE FOUNDING TO THE
FOURTEENTH AMENDMENT
It is no historical secret that the Constitution was drafted due to the
failures of the federal system under the Articles of Confederation. One failure
being each State possessed the ability to frustrate United Statess diplomatic
relations,23 including the prescription of different laws with respect to
citizenship.24 To fix this disparity, the Constitution expressly vested the
federal government with plenary power to establish an uniform Rule of
Naturalization.25 Certainly, the Constitution makes no reference over the
power to define citizenship by birth, but the founding generation understood
that the law of nations placed the power over foreign affairs, immigration, and
citizenship with the national government.26 As John Marshall once stated at
oral argument, every nation has a right to legislate over foreigners, and this
power goes to the rights of all kinds.27
A 1793 charge to a grand jury by John Jay, the first Chief Justice of the
Supreme Court, further illuminates that the law of nationswhich included
sovereign powers over immigration, citizenship, and naturalizationwas part
of the U.S. Constitution. Jay stated the laws of the United States fell under
three heads or descriptions:
1st. All treaties made under the authority of the United States.
2d. The laws of nations.
3d. The constitution and statutes of the United States.28
21. See supra Part V.

22. See supra Part VI.
23. PETER ONUF & NICHOLAS ONUF, FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN
AGE OF REVOLUTION, 17761814, at 9495 (1993).
24. Patrick J. Charles, The Plenary Power Doctrine and the Constitutionality of Ideological Exclusion:
An Historical Perspective, 15 TEX. REV. L. & POL. 61, 9596 (2010).
25. U.S. CONST. art. I, 8, cl. 4.
26. Charles, supra note 24, at 8489, 92118.
27. JAMES IREDELL, MIDDLE CIRCUIT, 1793, VIRGINIA 10 (1793) (unpublished journal of oral
arguments) (on file with the Library of Congress Rare Books Division, Washington, D.C.).
28. CITY GAZETTE AND DAILY ADVERTISER (Charleston, S.C.), Aug. 14, 1793, at 2, column 1.
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Jay defined the law of nations as consisting of those laws by which nations
are bound to regulate their conduct towards each another and those duties, as
well as rights, which spring from the relation of nation to nation.29 Relying on
the influential writings of Emer De Vattel,30 Jay discussed the interrelation
between immigration, allegiance, and national sovereignty as follows:
The respect which every nation owes to itself, imposes a duty on its government
to cause all its laws to be respected and obeyed; and that not only by its proper
citizens, but also by those strangers who may visit and occasionally reside
within its territories. There is no principle better established, than that all
strangers admitted into a country are, during their residence, subject to the laws
of it; and if they violate the laws, they are to be punished according to the
31
laws . . . to maintain order and safety.
Undoubtedly, one of these national duties included plenary power over

U.S. citizenship, and it seems the founding generation generally followed the
English common law. However, even the common law adhered to legal
principles of allegiance and international rules respecting sovereignty. To put
it another way, the founding generations understanding of jus soli
citizenship, or right of the soil citizenship, was a bit more complex than mere
birth in U.S. territory vested citizenship.
A May 22, 1789, speech by James Madison proves to be a great example
in this regard. Madison examined whether South Carolina Representative
William Smith was a citizen of the United States and could hold a seat in
compliance with Article I, Section 2 of the Constitution.32 He began his
assessment by surveying the laws of South Carolina, not the English common
law or the law of nations. Madison confirmed the importance of this
constitutional step, stating, Where the laws do not expressly guide us, we
must be guided by principles of a general nature so far as they are applicable
to the present case.33
It was only once Madison determined that South Carolina did not have a
law addressing the citizenship question at issue that he turned to some
principles of a general nature; the first principle being the established
maxim that birth is a criterion of allegiance.34 He knew that citizenship at
birth derives its force sometimes from place and sometimes from parentage,
but in general place is the most certain criterion and is what applies in the
United States.35 At the same time, Madison understood the importance of
29. Id. at column 1.

30. The writings of Vattel were highly influential on the founding generations view of international
law. See Charles, supra note 2424, at 8589, 108.
31. CITY GAZETTE, supra note 28, at 2, column 3.
32. U.S. CONST. art. I, 2, cl. 2 (No Person shall be a Representative who shall not have attained the
Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when
elected, be an Inhabitant of that State in which he shall be chosen.).
33. 12 THE PAPERS OF JAMES MADISON 179 (Charles F. Hobson & Robert A. Rutland eds., 1979).
34. Id.
35. Id. at 179 (emphasis added).
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allegiance in determining citizenship, either by birth or naturalization. It was

an established maxim that allegiance shall first be due to the whole
nation to vest citizenship.36
Smiths problem rested with whether he maintained primary allegiance to
the United States and absolved any second allegiance owed to England.37 In
the end, Madison determined that Smith was a citizen because he was an
accepted member of South Carolinas political society and bound by the
decision of the society with respect to the question of independence and change
of government.38 Indeed, Madisons analysis can be read to stand for the
proposition of unequivocal birthright citizenship. However, more legal
questions are raised than answered. For instance, how important was the
parents allegiance and their being accepted members of the political
community to vest citizenship at birth? What type of allegiance was necessary
for citizenship to vesttemporary and local or natural and perpetual
allegiance?39 Could Congress or South Carolina have defined the terms of
allegiance and domicile before vesting citizenship to children at birth?
The answers to these questions cannot be easily assumed. If we follow
Madisons views on federal plenary authority over naturalization, it can be
argued that distinctions can be made for one class of emigrants more than
another, as to the length of time before they would be admitted citizens.40 At
one point, Madison even advocated for immigrant class distinctions in the
interest of the general good:
I have been led to think it worthy of consideration whether our law of
naturalization might not be so varied as to communicate the rights of Citizens
by degrees, and in that way, preclude or abridge the abuses committed by
naturalized merchants particularly Ship owners. The restrictions w[ould] be felt
it is true by meritorious individuals, of whom I could name some . . . this always
41
happens in precautionary regulations for the general good.
Unfortunately, transplanting Madisons views on naturalization does not

sufficiently answer the founding generations full understanding of citizenship
by birth. What the historical record does reveal is that the doctrines of
allegiance and personal subjection were intertwined with national sovereignty.

37. Id.
38. Id. at 181.
39. In terms of late eighteenth-century allegiance definitions, Joseph Yates (17221770), a former
Judge of the Kings Bench, defined the differences in his personal volume of Matthew Hales Pleas of the
Crown. Yates wrote, Local Allegiance is that which is due from a Foreigner during his Residence here; and
is founded in the Protection he enjoys for his own person his Family & Effects during the Time of that
Residence. 1 JOSEPH YATES, MATTHEW HALES PLEAS OF THE CROWN (6th ed. 1759) (available at
Georgetown Law Center Special Collections). Yates defined natural allegiance as that which is due from
every man who is born a Member of a society. Id. Such allegiance was perpetual & Indefeasible and
therefore the Allegiance arising from it is equally perpetual & unalienable. Id.
40. 15 THE PAPERS OF JAMES MADISON 432 (Thomas A. Mason, Robert A. Rutland & Jeanne K. Sisson
eds., 1985).
41. 8 THE WRITINGS OF JAMES MADISON 425 (Galliard Hunt ed., 1908) (emphasis added).
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This fact is attested by the legal works of Hugo Grotius,42 William

Blackstone,43 Emer De Vattel,44 Joseph Yates,45 and others.46
Even the first U.S. case to directly address the subject of citizenship by birth,
Lynch v. Clarke,47 confirmed that the common law tenets of jus soli were based
on national sovereignty and allegiance. The case concerned whether Julia Lynch
who was born in New York of alien parents, during their temporary sojourn48
was a U.S. citizen. In conclusion, Judge Lewis H. Sandford held that by the
current law of the United States, every person born within the dominions and
allegiance of the United States, whatever were the situation of his parents, is a
natural born citizen,49 and by allegiance Sandford was referencing the general
allegiance owed to the confederated sovereignty of the United States by aliens
within its territorial limits.50 By general allegiance Sanford was likely referring
to temporary and local allegiance, which is a full submission to the authority of
the nation as the tacit condition of protection.51 In general terms, as defined by
Associate Justice Samuel Chase, allegiance referred to the mutual bond
between the sovereign and the subject, by which the subjects owe Duty to the
[sovereign] and the [sovereign], protection to [the] subjects.52
At no point did Sandford state or infer that citizenship by birth vested
automatically upon territorial presence or that it was an unalterable constitutional
right. In fact, Sandford expressly acknowledged the federal governments
authority to prescribe rules affecting citizenship by birth:
In reference to another class of the future inhabitants of the country [following the
ratification of the Constitution]those who were born here of alien parentsit is
claimed that the common law continued in force, which will be a subject for inquiry
presently. Whether it did or did not, their condition was to be ascertained by a national
law. In reference to aliens, legislation would be necessary; and the power to legislate,
was conferred upon Congress. From what has been stated, it follows that such power
was intended to be, and necessarily must be exclusive. And being exclusive, it cannot,
as we have seen, be controlled by the unwritten or common law of one of the states,
42. HUGO GROTIUS, THE LAW OF WAR AND PEACE 20102 (Francis W. Kelsey trans., 1925)
(Permanent residence ought not to be denied to foreigners who, expelled from their homes, are seeking a
refuge, provided that they submit themselves to the established government and observe any regulations
which are necessary in order to avoid strifes.) (emphasis added).
43. 1 WILLIAM BLACKSTONE, COMMENTARIES 358 (Oxford, Clarendon 1765) (Allegiance is due from
an alien, or stranger born, for so long time as he continues within the kings dominion and protection.).
44. For an analysis on Vattels treatise concerning allegiance and settlement, see Charles, supra note
24, at 8589.
45. Yates kept a personal edition of Matthew Hales Pleas of the Crown. It was rebound with blank
leaves of paper placed in between sections so that Judge Yates could scribble his own notes concerning the
famous treatise. See 1 YATES, supra note 39. For analysis on Yatess writing, see Charles, supra note 13, at
78. In 1872, the Supreme Court relied on Hales Pleas of the Crown in confirming the doctrine of allegiance
in relation to defining residence. Carlisle v. United States, 83 U.S. 147, 155 (1872).
46. Charles, supra note 24, at 8384.
47. 1 Sand. Ch. 583 (1844).
48. Id. at 638.
50. Id. at 641.
51. See Yates, supra note 39.
52. SAMUEL CHASE, BRITISH CASE LAW CITATIONS (1800) (unpublished journal, on file with the
Library of Congress Rare Books Division, Washington, D.C.).
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any more than it can be altered by the statute law of such state. And whether or not the
Constitution enabled Congress to declare that the children born here of alien parents
who never manifested an intention to become citizens, are aliens or are citizensit is
clear that the decision of that question must be by some general rule of law, applicable
to affecting our whole nation. It must be determined by what may be called the
national law, as contra-distinguished from the local law of the several states. It is
53
purely a matter of national jurisprudence, and not of state municipal law.
To be clear, the holding in Lynch does not stand for the proposition that
mere birth in the United States constitutionally vests citizenship.54 Sandford
was clear to point out that the parties were in agreement that Congress had not
yet legislated on the subject. In such cases, the common law applied until
Congress regulated the subject. [I]n the absence of constitutional or
congressional provision on the subject [of citizenship by birth], it must be
regulated by the principles of the common law, if they are pertinent and
applicable, wrote Sandford.55 In the case of jus soli citizenship, the common
law required the parents to be in accord with the doctrine of allegiance by
maintaining general allegiance to the United States.56 Julia Lynchs parents
fell within the terms of general allegiance because they had not violated any
federal statute or law at the time of her birth in the United States.
This form of allegiance required by aliensoften referred to as temporary
or local allegiancewas more than being physically present and subject to
criminal prosecution. In England, it often required the announcing of ones
presence and taking an oath.57 The same held true in the United States. As
Noah Webster aptly put it, local allegiance imposes an obligation upon every
member of a state or body politic, the moment he steps within its jurisdiction, to
submit peaceably to such positiv[e] injunctions of that states, as hav[e] been
judged necessary for its welfare.58 Webster noted that the purpose of the
doctrine of allegiance was the need for moral law, which has for its object the
53. Lynch, 1 Sand. Ch. at 64546 (emphasis added; the phrases unwritten or common law and
national law were emphasized in the original source).
54. Commentators supporting a broad interpretation of jus soli citizenship fail to place Lynch v. Clarke
in its proper context. See Gerard N. Magliocca, Indians and Invaders: The Citizenship Clause and Illegal
Aliens, 10 U. PA. J. CONST. L. 499, 50405 (2008); Shawhan, supra note 5, at 910. For a more creative and
an historical reading of Lynch v. Clarke, see Berta Esperanza Hernndez-Truyol, Natives, Newcomers and
Nativism: A Human Rights Model for the Twenty-First Century, 23 FORDHAM URB. L.J. 1075, 1114 (1996)
(reading Lynch as supporting an open borders policy).
It is worth noting here that only one member of the Reconstruction Congress relied on Lynch v. Clarke
to define national citizenship. On April 7, 1866, debating the 1866 Civil Rights Bill, Ohio Representative
William Lawrence quoted Lynch twice to support the argument that U.S. citizenship is a national matter that
cannot be legislated by the states. See CONG. GLOBE, 39TH CONG., 1ST SESS. 1832, 1836 (1866). Indeed,
Lawrence read Lynch as holding that all persons born in the territorial United States are its citizens, but
properly understood the holding was due to the continued absence of [a] constitutional provision or
congressional law touching upon the subject. Id. at 1832.
55. Lynch, 1 Sand. Ch. at 655.
56. Id. at 641.
58. NOAH WEBSTER, A COLLECTION OF ESSAYS AND FUGITIVE WRITINGS 319 (I. Thomas and E.T.
Andrews, Boston 1790).
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good of society.59 In other words, allegiance was a legal issue to be regulated

upon the needs and political self-preservation of the nation.
In the midst of the War of 1812 and before Congress, James Monroe also
conveyed the importance of allegiance in our American government:
Allegiance is a political relation between a sovereign and his people. It is the
obligation that binds the latter in return for the protection which they receive.
These reciprocal duties have the same limit. . . . A citizen or subject of one
power entering the dominions of another, owes allegiance to the latter, in return
60
for the protection he receives.
Alexander Hamilton came to a similar conclusion when debating federal

policy over immigration, naturalization, and citizenship. He viewed the ties of
allegiance as crucial to the preservation of the United States moving forward and
hoped Congress would enact more stringent immigration policies:
The safety of a republic depends essentially on the energy of a common
National sentiment; on a uniformity of principles and habits; on the exemption
of the citizens from foreign bias, and prejudice; and on that love of country
which will almost invariably be found to be closely connected with birth,
61
education, and family.
The historical question that remains is whether the Fourteenth Amendment

commanded citizenship by birth to be a fixed and unalterable rule or whether
the tenets of allegiance, domicile, personal subjection, and international law
could vary it dependent upon legislation necessary for the general or common
good. There is no disputing that by the time of the Reconstruction Congress it
had been settled that citizenship by birth was the general rule of law, with the
children of Indians and foreign ministers being the standard exceptions. In the
case of excluding Indian children, Attorney General Caleb Cushing wrote the
legal rationale was because the parents were subjects and not sovereign
constituent ingredients of the Government.62 In other words, while Indians
were subject to the laws of the United States in many respects, in other respects
they were not, and this quasi-subjection was seen as a sufficient legal concern to
exclude such persons from birthright citizenship.
A. Birthright Citizenship and the 1866 Civil Rights Act
As the United States became immersed into the international sphere, the
issue of divided allegiance not only affected the citizenship status of Indian
children but of foreigners as well. For instance, in the midst of the Civil War,
the French government stipulated ten rules of citizenship as a means to
exempt its citizens from U.S. military service. The list included French
citizens who were temporarily resident in the United States, and also minor
59. Id. at 318.
60. 7 NILES WEEKLY REGISTER 84 (Oct. 22, 1814).
61. 25 THE PAPERS OF ALEXANDER HAMILTON 496 (Harold C. Syrett ed., 1977).
62. C. Cushing, U.S. Attorney General, to Robert McClelland, Secretary of the Interior, July 5, 1856,
reprinted in 7 Op. Atty Gen. 746, 749 (185456).
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sons, even those born in [the United States], of French parents who are
naturalized Americans, if they were born before the naturalization of their
father.63 Secretary of State William H. Seward responded that the United
States would not sanction all the positions assumed by the French
government.64 Instead, Seward thought it best to handle any citizenship
issues within the tenets of international and constitutional law as the cases
actually arise.65 It was a policy that the Department of State would continue
throughout the late nineteenth century in which a number of adjudications
were based on international conceptions of birthright citizenship.66
Before we get to that historical point in time, it is important to capture
the view of the Reconstruction Congress on the subject, for its members
would draft both the 1866 Civil Rights Act and the Fourteenth Amendments
Citizenship Clause. Seven years prior to both debates, the first member of the
Reconstruction Congress to comment on the issue was John Bingham. What
makes Binghams understanding of great significance was his personal
involvement in drafting the Fourteenth Amendment. It has even been asserted
that Binghams interpretation should be the one most relied upon when
interpreting the Fourteenth Amendment.67
The issue of birthright citizenship arose at a time when Congress was
debating the admission of the Oregon Territory into the Union. Discussing
the contents of the 1857 Oregon Constitution, Bingham defined U.S.
citizenship as follows:
Who are the citizens of the United States? Sir, they are those, and those only,
who owe allegiance to the Government of the United States; not the base
[perpetual] allegiance imposed upon the Saxon by the Conqueror, which
required him to mediate in solitude and darkness at the sound of the curfew; but
the allegiance which requires the citizen not only to obey, but to support and
defend, if need be with his life, the Constitution of his country. All free persons
born and domiciled within the jurisdiction of the United States, are citizens of
68
the United States from birth.
63. Henri Mercier to William H. Seward (Oct. 31, 1862), reprinted in UNITED STATES DEPARTMENT OF
STATE: MESSAGE OF THE PRESIDENT OF THE UNITED STATES, AND ACCOMPANYING DOCUMENTS, TO THE TWO
HOUSES OF CONGRESS, AT THE COMMENCEMENT OF THE FIRST SESSION OF THE THIRTY-EIGHTH CONGRESS
80910 (Wash., Govt Printing Office 1863) [hereinafter ANNUAL MESSAGE OF THE PRESIDENT 1863].
64. William H. Seward to Henri Mercier (Nov. 4, 1862), in ANNUAL MESSAGE OF THE PRESIDENT
1863, supra note 63, at 812.
65. Id.
66. See infra notes 165187 and accompanying text.
67. See McDonald v. City of Chi., 130 S. Ct. 3020, 3072 (2010) (Thomas, J., concurring) (finding
Binghams view to be particularly significant as the principal draftsman of 1); Richard L. Aynes, The
Continuing Importance of Congressman John A. Bingham and the Fourteenth Amendment, 36 AKRON L. REV.
589, 591 (2003) (Binghams inseparable link with the Amendment makes him worthy of attention from both a
legal and an historical view. . . . [H]is words may provide meaning or context for what has been termed original
intent, meaning or understanding of the Fourteenth Amendment.); Richard L. Aynes, On Misreading John
Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 103 (1993) (discussing the importance of
Binghams views on contemporaries and the first federal courts to apply the Fourteenth Amendment).
68. CONG. GLOBE, 35TH CONG., 2ND SESS. 983 (1859) (emphasis added).
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Scholars have deduced different conclusions from Binghams definition.

Those that view birthright citizenship broadly focus on his application of
birthright citizenship to all free persons.69 However, Bingham unequivocally
conditioned citizenship on a number of factors to include domicile, allegiance,
and being a member of the political community.70 In terms of the doctrine of
allegiance, it is unlikely that Bingham was referring to natural allegiance or
that which is possessed by citizens at birth, for he referenced birthright
citizenship as applying to all free persons that are domiciled. Thus, it is likely
Bingham was referring to allegiance in terms of temporary or local allegiance,
which requires full obedience and submission to the laws of the nation as the
condition of protection.71
This interpretation is confirmed upon reading the rest of Binghams speech.
He confirmed numerous times that birthright citizenship extended to those free
inhabitants, born and domiciled within the United States.72 In these latter
instances, Bingham made no reference to allegiance, but this does not displace
that the doctrine was universally understood as the tacit condition of lawful
settlement.73 Not to mention, Bingham confirmed his acceptance of the doctrine
three years later when debating emancipation within the District of Columbia:
I undertake to say, by the decision of your Federal tribunals, that womenthat
all the women of this Republic born upon the soilare citizens of the United
States . . . . The Constitution leaves no room for doubt upon this subject. The
words natural-born citizen of the United States occur in it. . . . Who are the
natural-born citizens but those born in the Republic? Those born within the
Republic, whether black or white, are citizens by birthnatural-born
citizens. . . . [A]ll other persons born within the Republic, of parents owing
allegiance to no other sovereignty, are natural-born citizens. Gentlemen can
find no exception to this statement touching natural-born citizens except what is
said in the Constitution in relation to Indians. The reason why that exception
was made in the Constitution is apparent to everybody. The several Indian
tribes were recognized at the organization of this Government as independent
sovereignties. They were treated with as such; and they have been dealt with by
the Government ever since as separate sovereignties. Therefore, they were
74
excluded from the general rule.
Here again, a selective reading could deduce that all persons born in the
United States, excluding tribal Indians, are citizens. However, history in
context requires more than picking whichever statement supports a respective
interpretation. Three years prior, Bingham had conditioned birthright
69. See Epps, supra note 5, at 379.

70. See CONG. GLOBE, 35TH CONG., 2ND SESS. 983.
71. See Charles, supra note 13, at 7881 (discussing the different eighteenth century commentary on
the subject).
72. CONG. GLOBE, 35TH CONG., 2ND SESS. 983 (emphasis added); see also id. at 984 (Who, sir, are
citizens of the United States? First, all free persons born and domiciled within the United Statesnot all free
white persons, but all free persons.); id. at 985 (But it is not necessary to take time in demonstrating that all
free persons born and domiciled within the United States are citizens of the United States.).
73. See Charles, supra note 13, 6186.
74. CONG. GLOBE, 37TH CONG., 2ND SESS. 1639 (1862).
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citizenship on domicile, allegiance, and being a member of the political

community.75 Indeed, in his 1862 speech, Bingham only referenced the
importance of parental allegiance, but this does not mean that domicile and
membership in the political community were removed from the birthright
equation. If anything, one could argue Binghams reference to the general
rule as acknowledging these other conditions.
Binghams statements on birthright citizenship are significant as we move
forward to the debates of the 1866 Civil Rights Act, for its sponsor, Senator
Lyman Trumbull,76 made similar references. The Act, as adopted, stated: That
all persons born in the United States and not subject to any foreign power,
excluding Indians not taxed, are hereby declared to be citizens of the United
States . . . .77 The text itself went through numerous proposed amendments and
changes, but Trumbulls stance on its constitutional breadth remained unchanged.
For instance, in an exchange with Pennsylvania Senator Edgar Cowan, Trumbull
confirmed the children of German and Asiatic parents born in the United States
were citizens.78 During this exchange, it is true that Trumbull did not condition
birthright citizenship on any factors. However, the conditions were implicit in the
law, for the next day Trumbull qualified his position:
My own opinion is that all these persons born in the United States and under its
authority, owing allegiance to the United States, are citizens without any act of
Congress. They are native-born citizens. That is my judgment about it; but there is
79
a difference in opinion upon that subject.
Here, Trumbull conditions birthright citizenship on the tenets of allegiance

and being a member of the political community. In particular, Trumbull believed
that these general rules excluded Indians, for they do not recognize nor are they
made subject to the laws of the United States.80 Certainly, Indians that
committed crimes outside the tribal jurisdiction were held accountable for those
crimes by the respective U.S. authorities. Thus, in many ways they were subject
to the authority of the United States. However, Trumbulls point was that Indians
did not fall within our political jurisdiction because they do not fully recognize the
laws. He clarified this, stating, They make and administer their own laws; they
are not counted in our population; [and] they are not represented in our
Government . . . .81
From Trumbulls initial definitions, it is unclear whether not falling under
the authority and allegiance to the United States was satisfied upon meeting
all the stated conditions or any of them. Perhaps one may argue that Trumbull
was only referencing the political situation affecting Indians, and felt this could
75.
76.
77.
78.
79.
80.
81.
See supra note 72.

For a summary of the Acts purpose, see Epps, supra note 5, at 34950.
Ch. 31, 14 Stat. 27 (1866) (codified as amended 18 U.S.C. 242 (2006)).
CONG. GLOBE, 39TH CONG., 1ST SESS. 498 (1866).
Id. at 527 (emphasis added).
Id.
Id.
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never extend to any other class of people, such as the children of unlawfully
present immigrants.82 This interpretation comes into question upon reading
Trumbulls statements on February 1, 1866:
The Senator [John B. Henderson] from Missouri and myself desire to arrive at the
same point precisely, and that is to make citizens of everybody born in the United
States who owe allegiance to the United States. We cannot make a citizen of the
child of a foreign minister who is temporarily residing here. There is a difficulty
in framing the amendment so as to make citizens of all the people born in the
United States and who owe allegiance to it. I thought that might be the best form
in which to put the amendment at one time, That all persons born in the United
States and owing allegiance thereto are hereby declared to be citizens; but upon
investigation it was found that a sort of allegiance was due to the country from
persons temporarily resident in it whom we would have no right to make citizens,
83
and that that form would not answer.
This statement makes it abundantly clear that the 1866 Civil Rights Act
did not intend to make all persons citizens. There could be legal conditions
precedent for birthright citizenship to vest, including compliance with the
doctrine of allegiance. As Trumbulls statement confirms, in terms of
international law, it was well settled that persons born of parents temporarily
present could not maintain the requisite allegiance to possess citizenship by
birth.84 Moreover, following the opinions of Trumbull, we know that the
ownership of landed property could not be a condition precedent, but
obtaining lawful domicile was deemed acceptable.85
A statement by Iowa Representative James F. Wilson on the 1866 Civil
Rights Act supports the preceding conditions that may be imposed on
birthright citizenship:
It is in vain we look into the Constitution of the United States for a definition of the
term citizen. It speaks of citizens, but in no express terms defines what it means
by it. We must depend on the general law relating to subjects and citizens
recognized by all nations for a definition, and that must lead us to the conclusion that
every person born in the United States is a natural-born citizen of such States, except
82. As it stands today, unlike Indians, unlawful immigrants are counted for apportionment purposes.
Congress has never passed legislation regulating the issue, and the constitutionality of such legislation is
uncertain. For a debate on this issue, compare Charles, supra note 13, with MARGARET MIKYUNG LEE &
ERIKA K. LUNDER, CONG. RESEARCH SERV., R41048, CONSTITUTIONALITY OF EXCLUDING ALIENS FROM THE
CENSUS FOR APPORTIONMENT AND REDISTRICTING PURPOSES (2010).
83. CONG. GLOBE, 39TH CONG., 1ST SESS. 572.
84. The doctrine of allegiance was quite prevalent in nineteenth-century immigration and citizenship
law. See DANIEL GARDNER, A TREATISE ON INTERNATIONAL LAW, AND A SHORT EXPLANATION OF THE
JURISDICTION AND DUTY OF THE GOVERNMENT OF THE REPUBLIC OF THE UNITED STATES 98, 110, 150, 157,
180, 255 (1844) (numerous later editions were published); HENRY WHEATON, ELEMENTS OF INTERNATIONAL
LAW: WITH A SKETCH OF THE HISTORY OF THE SCIENCE 99101, 11112, 122, 17781, 230, 23742 (1836)
(numerous later editions were published); 1 RICHARD WILDMAN, INSTITUTES OF INTERNATIONAL LAW:
INTERNATIONAL RIGHTS IN TIME OF PEACE 6, 4045, 82, 133 (1850) (numerous later editions were published
and also cited by the Supreme Court in the Carlisle v. United States, 83 U.S. 147, 154 (1872)).
85. CONG. GLOBE, 39TH CONG., 1ST SESS. 572 (Indians are not counted in the census. They are not
regarded as part of our people.); id. (Whenever they are separated from those tribes, and come within the
jurisdiction of the United States so as to be counted, they are citizens of the United States. It is not intended
as a property qualification.).
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225
it may be that children born on our soil to temporary sojourners or representatives of

foreign Governments are native-born citizens of the United States.86
Indeed, during the 1866 Civil Rights Act debates congressional members
often spoke of birthright citizenship in broad terms, including Trumbull.87 Still,
this does not disparage the statements made by Bingham, Trumbull, and Wilson
on the legal conditions that could be imposed upon birthright citizenship.88 It is
a historical point of emphasis that the Acts citizenship provision was merely
declaratory of the law as the Reconstruction Congress understood it. As
Trumbull later confirmed to the Illinois Assembly on the matter:
It was the generally received opinion that after the adoption of the
Constitutional Amendment abolishing Slavery, all native born persons were
citizens. If not citizens, what were they?. . .The [Civil Rights Acts] words
declaring all persons born in the United States, and not subject to any foreign
89
Power, to be citizens were only declaratory of what the law already was.
Certainly, part of this declaratory law included national sovereignty over the
United Statess borders and foreign affairs.
B. Birthright Citizenship and the Fourteenth Amendment
In Garrett Eppss piece discussing the legislative history on birthright
citizenship, he finds it problematic to compare the 1866 Civil Rights language
with that of the Fourteenth Amendments Citizenship Clause. Epps writes the
Fourteenth Amendment has different wording; it emerged from a different
political situation; it was adopted under different procedures and had different
authors, and it was approved by different voting bodies.90 It is for these reasons
that Epps concludes the Citizenship Clauses meaning must stand on its own.91
There is no disputing that the two provisions maintain different language,92 but
the two were commonly understood as encompassing the same body of law.93
86. Id. at 1117. Ohio Representative William Lawrence agreed with Wilsons interpretation of the law.
See id. at 1832; see also discussion supra note 54 (conveying Lawrences reading of Lynch v. Clarke).
87. See CONG. GLOBE, 39TH CONG., 1ST SESS. 600 (1866) (I have already said that in my opinion
birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a
citizen of the United States, and that the bill now under consideration is but declaratory of what the law now
is.); see also id. at 1757.
88. This is a contextual aspect of history that broad interpretations of the Citizenship Clause do not
properly take into account. Take for instance, Mark Shawhan, who entitled his law review piece based on
Trumbulls by virtue of being born here statement. See generally Shawhan, supra note 5. Indeed,
Trumbull did make this statement, but he also made numerous statements conditioning birthright citizenship
on a number of factors.
89. Senator Trumbulls Address to the Illinois LegislatureThe Civil Rights Bill, N.Y. TIMES, Jan. 21,
1867, at 1.
90. Epps, supra note 5, at 353.
91. Id.
92. The Fourteenth Amendment reads subject to the jurisdiction thereof in lieu of not subject to any
foreign power. Compare U.S. CONST. amend. XIV, 1, with Ch. 31, 14 Stat. 27 (1866) (codified as
amended 18 U.S.C. 242 (2006)).
93. See DAILY MINERS REGISTER (Central City, Colo.), Nov. 15, 1866, at 1, column 3 (Section 1 is a
guarantee of citizenship to all persons born within the United States. It embraces in a constitutional
enactment the provisions of the civil rights bill.).
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More importantly, the content of the debates themselves reveals a similar

understanding of the constitutional rules regarding birthright citizenship.
When the Fourteenth Amendment was first proposed by Michigan
Senator Jacob M. Howard to the Senate, it did not have a provision
guaranteeing birthright citizenship. Section 1 only declared: No State shall
make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.94
On May 23, 1866, Ohio Senator Benjamin F. Wade sought to amend
Section 1 by removing citizen and substituting language that barred states
from abridging the privileges or immunities of persons born in the United
States or naturalized by the laws thereof.95 Wade knew the courts, especially
the Supreme Court in Dred Scott v. Sanford,96 disagreed on the definition of
citizen. Thus, Wade sought to mirror Section 1 to reflect the legal proposition
in the 1866 Civil Rights Bill, for he always believed that every person, of
whatever race or color, who was born within the United States was a citizen
of the United States.97
In response to Wades definition of birthright citizenship, Maine Senator
William P. Fessenden queried, Suppose a person is born here of parents from
abroad temporarily [resident] in this country.98 Wade replied that he only
knew of one instance, in the case of the children of foreign ministers who
reside near the United States for which this would be the case.99 He
elaborated that it was by a fiction of law that such persons were not
residing here, and not citizens of the United States.100
There is no disputing that Wades broad definition of birthright
citizenship conflicts with the debates concerning the 1866 Civil Rights Act,
especially the granting of citizenship to persons temporarily resident or who
were outside the allegiance of the United States.101 Wades reason for such a
broad interpretation was to comport with the legal maxim de minimis lex non
curat, or the law does not concern itself with trifles. He thought it better to
put this question beyond all doubt and all cavil by a very simple process with
the language he proposed.102
94. CONG. GLOBE, 39TH CONG., 1ST SESS. 2764 (1866) (Howards proposed amendment was presented
in joint resolution H.R. no. 127).
95. Id. at 2768.
96. 60 U.S. 393 (1856).
98. Id. at 2769.
99. Id.
100. Id.
101. See supra notes 7789 and accompanying text.
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227
It was at this juncture that Senator Howard proposed to add the

following to precede Section 1: All persons born in the United States and
subject to the jurisdiction thereof are citizens of the United States and of the
States wherein they reside.103 Howard described the purpose of the
amendment as follows:
This amendment which I have offered is simply declaratory of what I regard as
the law of the land already, that every person born within the limits of the
United States, and subject to their jurisdiction, is by virtue of natural law and
national law a citizen of the United States. This will not, of course, include
persons born in the United States who are foreigners, aliens, who belong to the
families of embassadors or foreign ministers accredited to the Government of
the United States, but will include every other class of persons. It settles the
great question of citizenship and removes all doubt as to what persons are or are
not citizens of the United States. This has long been a great desideratum in the
104
jurisprudence and legislation of this country.
One can interpret Howards speech in one of two ways. The first
interpretation comports with Senator Wades broad interpretation, and would
affirm that only the children of foreign ministers and ambassadors were
excluded from birthright citizenship. A second interpretation takes into
account Howards reference to natural law and national law, and must
conclude that international norms and national legislation could impact which
foreigners or aliens were subject to the jurisdiction thereof. Given the
1866 Civil Rights Act debates, the latter interpretation seems more likely, and
is supported by the remaining debates concerning the Fourteenth Amendment.
The primary concern with Howards amendment was the status of Indian
children. Senators Edgar Cowan, James R. Doolittle, and William P.
Fessenden each expressed such concerns.105 It was here that Senator
Trumbull chimed in to confirm that subject to the jurisdiction thereof
comported with the interpretation imposed by the 1866 Civil Rights Act:
The provision is, that all persons born in the United States, and subject to the
jurisdiction thereof, are citizens. That means subject to the complete
jurisdiction thereof. Now, does [Senator Doolittle] pretend to say that the
Navajoe [sic] Indians are subject to the complete jurisdiction of the United
States? What do we mean by subject to the jurisdiction of the United States?
Not owing allegiance to anybody else. That is what it means. Can you sue a
Navajoe [sic] Indian in court? Are they in any sense subject to the complete
jurisdiction of the United States? By no means. We make treaties with them,
106
and therefore they are not subject to our jurisdiction.
103. Id. at 2869.

104. Id. at 2890. Senator Howards opinion is of critical importance to understanding the scope of the
Citizenship Clause. Howard was appointed to a three member committee to propose amendments to the full
Senate, which included Senators Fessenden and Grimes. See Richard L. Aynes, Enforcing the Bill of Rights
Against the States: The History and Future, 18 J. CONTEMP. LEGAL ISSUES 77, 129 (2009). Indeed, Senator
Wade was the Senate Republicans caucus chair and did make a proposed amendment to the Citizenship
Clause. Id. However, it was Howards version and view that was adopted, not Wades. Id.
106. Id. at 2893.
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Similar to his statements on the 1866 Civil Rights Act,107 Trumbull

conditioned birthright citizenship on factors such as the doctrine of allegiance
and being a member of the political communitywhat Trumbull classified as
the complete jurisdiction. Conversely, Garrett Epps interprets complete
jurisdiction narrowly, and focuses intently on Trumbulls reference to the
inability to sue Navajos in a court of law. It is from this sentence that Epps
deduces that complete jurisdiction equates to being merely subject to the
laws.108 This interpretation cannot survive given that Trumbull later
confirmed that allegiance and personal subjection were important factors in
addition to being subject to the laws.109
At this point Maryland Senator Reverdy Johnson stood in to support an
amendment excluding Indians not taxed. However, before Johnson
discussed the matter, he defined the birthright citizenship clause as follows:
Now, all that amendment provides is, that all persons born in the United States
and not subject to some foreign Power . . . shall be considered as citizens of the
United States. That would seem to be not only a wise but a necessary
provision. . . . I know of no better way to give rise to citizenship than the fact of
birth within the territory of the United States, born of parents who at the time
110
were subject to the authority of the United States.
Certainly, this statement confirms that Johnson viewed the language of

Section 1 as akin to the 1866 Civil Rights Act. Birthright citizenship may have
been prescribed on general terms, but it was still dependent on allegiance,
personal subjection, and being a member of the political community. Trumbull
even assuaged Johnsons concern stating, We propose to make citizens of
those brought under our jurisdiction in that way.111 When was an individual
brought under U.S. jurisdiction? In the case of Indians, Trumbull stated it
required owing allegiance solely to the United States.112
Thus, subject to the jurisdiction thereof was never intended to remove
the 1866 Civil Rights Acts understanding of birthright citizenship. Instead, its
inclusion in the Fourteenth Amendment was primarily intended to quell any
concerns on the constitutional issue.113 This fact is confirmed by Senator
Doolittle questioning the difference in language. Senator Howard replied the
change was to put this question of citizenship . . . beyond the legislative power
of such gentlemen [from the States that] . . . would pull the whole system up by
its roots and destroy it, and expose the freedmen again to the oppressions of

108. Epps, supra note 5, at 36162.
109. CONG. GLOBE, 39TH CONG., 1ST SESS. 2893 (statement of Sen. Trumbull) (If [persons] are there
and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and
that is all that is proposed. It cannot be said of any Indian who owes allegiance, partial allegiance if you
please, to some other Government that he is subject to the jurisdiction of the United States. ).
110. Id.
111. Id.
112. Id. at 2894.
113. Id. at 2768, 2896.
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229
their old masters.114 In other words, subject to the jurisdiction sought to

affirm once and for all that U.S. citizenship was superior to State citizenship.115
There is no substantiated evidence that it sought to supersede federal power
over defining allegiance, domicile, and which foreigners may immigrate to
become members of the political community.
Take for instance, Illinois Representative Jehu Bakers interpretation of
birthright citizenship. He thought the provision to be plainly just and
without objection.116 It ensured those who were subject to taxation, to
military service, both State and national, ought, upon every principle of manly
justice, to receive in turn from society that protection which is involved in the
status of citizenship.117 Citizenship by birth was not to be vested as a result
of mere presence. It was dependent upon principles of reciprocal protection
or the tenets of allegiance.118
A speech by Oregon Senator George H. Williams confirms this
understanding:
In one sense, all persons born within the geographical limits of the United States
are subject to the jurisdiction of the United States, but they are not subject to the
jurisdiction of the United States in every sense. Take the child of an embassador.
In one sense, that child born in the United States is subject to the jurisdiction of
the United States, because if that child commits the crime of murder, or commits
any other crime against the laws of the country, to a certain extent he is subject to
the jurisdiction of the United States, but not in every respect; and so with these
Indians. All persons living within a judicial district may be said, in one sense, to
be subject to the jurisdiction of the court in that district, but they are not in every
sense subject to the jurisdiction of the court until they are brought, by proper
process, within the reach of the power of the court. I understand the words here,
subject to the jurisdiction of the United States, to mean fully and completely
subject to the jurisdiction of the United States. If there was any doubt as to the
meaning of the words, I think that doubt is entirely removed and explained by the
119
words in the subsequent section [on apportionment].
114. Id. at 2896.

115. The 1868 Louisiana Constitution provides a great example on the Fourteenth Amendment in this
regard. Article 2 of the Bill of Rights declared: All persons, without regard to race, color, or previous
condition, born or naturalized in the United States, and subject to the jurisdiction thereof, and residents of this
State for one year, are citizens of this State. The citizens of this State owe allegiance to the United States;
and this allegiance is paramount to that which they owe to the State. LA. CONST. OF 1868, art. II (emphasis
added). States could no longer define the terms of allegiance for admittance into the political community.
See Samuel T. Spear, National Protection, 24 INDEPENDENT 1231 (1872) (The fact that one is a citizen of
the state in which he resides does not in any way release him from the higher fact that he is also a citizen of
the United States. As between the two forms of citizenship the national is supreme in the responsibilities and
subjection which it involves.).
116. CONG. GLOBE, 39TH CONG., 1ST SESS. 256 (1866) (statement of Rep. Baker).
117. Id.; see also The Indian Question, DAILY EVENING BULLETIN (San Francisco, Cal.), Apr. 19, 1870,
at 1, column 1 (The Indians are not and never have been subject to our jurisdiction. That is, they are not
subject to our laws, not subject to taxes, nor to military service. Owing none of the duties of allegiance, they
are not accorded any of its privileges.); id. (Government is founded on the consent of the governed: and the
citizen is the fundamental and only repository of sovereignty. We want no citizens who are not fit to be
sovereigns; and we can consistently have none who are not equally and freely admitted to all the rights as
well as subjected to all the obligations of a common government.).
119. Id. at 2897.
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Williamss reference to Section 2 is telling, for it illuminates that lawful

settlement and being counted for apportionment were qualifications upon
which birthright citizenship could dependan interpretation that coincides
with the 1866 Civil Rights Act debates. The question repeatedly asked and
answered, in terms of apportionment, was whether non-citizens, women, and
Despite numerous attempts to limit
minors should be counted.120
apportionment to voters or male citizens twenty-one years and older, the
constitutional basis of apportionment was decidedly affirmed to be total
population.121 However, total population did not include every person present
in the United States at the time. The drafters of the Fourteenth Amendment
understood that apportionment should not extend to those temporarily present
or who were not deemed part of the political community.122
In this legal aspect, Section 1 and Section 2 are intimately linked.123 It
was commonly understood that both could be legislated in terms of defining
who is within the jurisdiction124 of the United States through the legal tenets
of allegiance, domicile, and being a contributing member of the political
community. Judge Timothy Farrars Manual of the Constitution of the United
States concurs with this understanding.125 Discussing the Fourteenth
Amendment, Farrar wrote:
Who are the persons in each State to be counted? Citizens, inhabitants,
residentstemporary or permanent, strangers, aliens, Indians, &c.? Indians
not taxed are not altogether excluded; although before it was by some
considered doubtful whether they were excluded only from the first class. This
total exclusion is compatible with the preceding section, only on the ground that
the Constitution has made them aliens, and so not subject to the jurisdiction of
the United States, otherwise than aliens by temporary residence; for otherwise
they are, by that section and by birthright, actual citizens of the United States,
and of the States wherein they reside. . . . The whole number of persons in
each State cannot mean everybody on the soil at a particular time, nor exclude
everybody who may happen not to be on it at the same time, and of course
126
should be authoritatively construed by the law-making power.
Here, Farrar does not expressly define persons in terms of the

Fourteenth Amendment, but in a previous section he wrote that persons
included citizens or aliens, natural-born or legally admitted, or otherwise
constituted as such, but expressly including a portion of those bound to
service.127 Farrars definition undoubtedly coincides with those who
120.
121.
122.
123.
124.
125.
Charles, supra note 13, 5660.

Id.
Id. at 6167, 8186.
See Elk v. Wilkins, 112 U.S. 94, 101 (1884).
Cf. U.S. CONST. amend. XIV, 5.
The following sections of Farrars Manual would remain unchanged in subsequent editions. See
TIMOTHY FARRAR, MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 403 (2d. ed. 1869);
TIMOTHY FARRAR, MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 403 (3d. ed. 1872).
126. TIMOTHY FARRAR, MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 403 (1st
ed. 1867).
127. Id. at 214.
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231
advocated for the adoption of the Fourteenth Amendment. There had to be a

legal line somewhere that Congress may enforce, by appropriate legislation,
the provisions of this article.128 For scholars to assert otherwise is to claim
that the drafters of the Fourteenth Amendment sought to completely strip the
United States of national sovereignty in terms of its borders, foreign affairs,
and what constitutes being a member of the political community, a
proposition unsupported by the historical record.
III. DEFINING CITIZENSHIP AND WHO IS SUBJECT
TO THE JURISDICTION THEREOF
As Part II details, the Fourteenth Amendments Citizenship Clause was
never intended to be an unfettered grant of citizenship should a person be born
in the territorial United States. Conversely, detractors read subject to the
jurisdiction thereof as defining very narrow legal exceptions that only affect
the children of Indians, diplomats, and enemy troops. This narrow
interpretation, although plausible, omits and discards much of the historical
record. Take for instance Senator Trumbulls affirmation to President
Andrew Johnson that the 1866 Civil Rights Act only made citizens of all
persons born of parents domiciled in the United States, except untaxed
Indians.129 To be domiciled within the allegiance of government is to
announce ones presence and personally subject oneself to government. One
cannot receive the reciprocal protection of government, especially any
political rights, by doing otherwise.130
In 1851, Secretary of State Daniel Webster conveyed this understanding
of the law in a letter addressing the House of Representatives:
[E]very foreigner . . . residing in a country, owes to that country allegiance and
obedience to its laws so long as he remains in it, as a duty imposed upon him by
the mere fact of his residence, and the temporary protection he enjoys, and is as
much bound to obey its laws as native subjects or citizens. This is the universal
understanding in all civilized states, and nowhere a more established doctrine
131
than in this country.
Certainly, one may argue the Fourteenth Amendments Citizenship

Clause is broader in scope or less flexible than the 1866 Civil Rights Act, but
the debates and public understanding prove otherwise. Massachusetts Senator
128. U.S. CONST. amend. XIV, 5.
129. This portion of the letter is reprinted in Mark Shawhan, The Significance of Domicile in Lyman
Trumbulls Conception of Citizenship, 119 YALE L.J. 1352, 135253 (2010) (emphasis added) (quoting Letter
from Sen. Lyman Trumbull, Chairman, Senate Judiciary Comm., to President Andrew Johnson (undated), in
ANDREW JOHNSON PAPERS, Reel 45, Manuscript Div. Library of Congress, Washington, D.C.) (internal
quotation marks omitted).
130. This author is not the only modern scholar to assert that the doctrine of allegiance, including
reciprocal protection, was alive and well in the late nineteenth century. See Richard L. Aynes, Constitutional
Considerations: Government Responsibility and the Right Not to Be a Victim, 11 PEPP. L. REV. 63, 7583
(1984) (discussing the doctrine as pertinent to understanding the Fourteenth Amendment as a whole,
especially governmental protection).
131. BOS. SEMI WEEKLY COURIER, Jan. 1, 1852, at 1, column 5.
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[Vol. 51
Charles Sumner, a member of the Reconstruction Congress and strong

advocate for the Thirteenth, Fourteenth, and Fifteenth Amendments, even
later confirmed that this definition of Citizenship could be enforced by
appropriate legislation.132 For whatever reason, this historical and legal
point is often ignored. Perhaps it is because subsequent Congresses never
enacted comprehensive reform.
It must be a point of emphasis that throughout the nineteenth century the
United States maintained lenient rules regarding immigration and
naturalization.133 This public policy, however, does not detract from what the
law may constitutionally prescribe or that persons were denied entry. The
historical record provides some evidence that, by the mid-nineteenth century,
U.S. visas were denied to persons whose loyalty to the Union . . . has not the
most complete and satisfactory evidence.134 Also, the fact remains that
many of the greatest legal minds interpreted the Fourteenth Amendment as
providing Congress with plenary power to define the terms of domicile,
allegiance, and who constituted a member of the political community. In fact,
by 1874 the Department of State and Foreign Affairs Committee submitted a
bill to define what constituted domicile and residence as a means to acquire
U.S. citizenship by birth, both abroad and in the territorial United States.135
The bill came at the recommendation of President Ulysses S. Grant, and
its purpose was to mark out and define when and how expatriation can be
accomplished.136 Grant acknowledged that the Fourteenth Amendment,
once and for all, extinguished the feudal doctrine of perpetual allegiance,
yet pleaded to Congress that there remained international disagreement as to
when foreign citizenship attaches or U.S. citizenship is lost.137 Thus, there
remained discord as to when temporary allegiance attached or there was
sufficient personal subjection for birthright citizenship to vest.
Multiple times, in 1873, members of the Presidents cabinet would
define the constitutional scope of the Fourteenth Amendment in this regard.
The first occurred in response to an application for a U.S. passport. Secretary
of State Hamilton Fish wrote that citizenship attaches by reason of birth
within the jurisdiction of the United States, or by reason of naturalization
therein.138 Both cases required a personal subjection to their jurisdiction
132. 14 CHARLES SUMNER, THE WORKS OF CHARLES SUMNER 385 (Boston, Lee & Shepard 1883).
134. Letter from D.P. Heap to John P. Brown (June 12, 1861), reprinted in 1 UNITED STATES
DEPARTMENT OF STATE: MESSAGE OF THE PRESIDENT OF THE UNITED STATES TO THE TWO HOUSES OF
CONGRESS AT THE COMMENCEMENT OF THE FIRST SESSION OF THE THIRTY-SEVENTH CONGRESS 390 (Wash.,
Govt Printing Office 1861).
135. CONG. REC., 43RD CONG., 1ST SESS. 3279 (1874).
136. Presidents Message to the Senate and House of Representatives: Events of the Year, HARTFORD
COURANT (Hartford, Conn.), Dec. 3, 1873, at 1, column 6.
137. Id.
138. Letter from Hamilton Fish to Lawrence Washburne (June 28, 1873), reprinted in UNITED STATES
DEPARTMENT OF STATE: MESSAGE OF THE PRESIDENT OF THE UNITED STATES TO THE TWO HOUSES OF
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233
in order for citizenship to vest, and make the constitutional right

complete.139 Fish would later confirm this interpretation in a letter to
President Grant, writing, [t]he fourteenth amendment of the Constitution
makes personal subjection to the jurisdiction of the United States an element
of citizenship.140 Fish concurred with the drafters that the child born of
alien parents in the United States is held to be a citizen thereof,141 but this
too was understood to vest on the tacit condition of personal subjection.
In 1873, former Oregon Senator George H. Williams, who voted both in
favor of the 1866 Civil Rights Act and Fourteenth Amendment,142 came to a
similar understanding as U.S. Attorney General. The word jurisdiction,
Williams wrote to President Grant, must be understood to mean absolute or
complete jurisdiction, such as the United States had over its citizens before the
adoption of this amendment.143 He recognized that aliens were subject to the
jurisdiction of the United States only to a limited extent.144 Thus, in the absence
of treaties and legislation by Congress on the subject, the rules of allegiance and
CONGRESS AT THE COMMENCEMENT OF THE FIRST SESSION OF THE FORTY-THIRD CONGRESS 256, 257 (Wash.,
Govt Printing Office 1873).
139. Id. Secretary of State Fish confirmed this interpretation of the Fourteenth Amendment twice in this
letter. See id. at 259.
The provisions of the fourteenth amendment of the Constitution have been considered. This
amendment is not only of a more recent date, but is a higher authority than the act of Congress
referred to, and if there be any conflict between them, or any difference, the Constitution must
control, and that makes the subjection of the person of the individual to the jurisdiction of the
Government a requisite of citizenship.
Id.
140. Letter from Hamilton Fish to Ulysses S. Grant (Aug. 25, 1873), reprinted in PAPERS RELATING TO
THE FOREIGN RELATIONS OF THE UNITED STATES, TRANSMITTED TO CONGRESS, WITH THE ANNUAL MESSAGE
OF THE PRESIDENT, DECEMBER 1, 1873, at 1186, 1189 (Wash., Govt Printing Office 1873) [hereinafter
PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1873].
141. Id. at 1192.
142. See CONG. GLOBE, 39TH CONG., 1ST SESS. 3042 (1866).
143. Letter from George H. Williams to Ulysses S. Grant (August 20, 1873), reprinted in ANNUAL
MESSAGE OF THE PRESIDENT 1873, supra note 140, at 1219. Williamss 1873 interpretation is consistent with
his 1866 statements on the scope of the Citizenship Clause. See supra notes 119128 and accompanying
text. It should be noted that in 1874 Williamss integrity and legal experience came into question upon
President Grant appointing him to fill the Supreme Court vacancy caused by the death of Chief Justice
Salmon P. Chase. See Paul A. Freund, Appointment of Justices: Some Historical Perspectives, 101 HARV. L.
REV. 1146, 114950 (1988). Williams withdrew his nomination as a result. Id. Certainly, one could claim
that this makes Williamss opinion on the Citizenship Clause suspect, but it was quite common in the mid to
late nineteenth century for Supreme Court nominees to be rejected on philosophical and political reasons,
with claims of inexperience to support partisan views. See Ruth Bader Ginsburg, Confirming Supreme Court
Justices: Thoughts on the Second Opinion Rendered by the Senate, 1988 U. ILL. L. REV. 101, 107 (1988);
Grover Rees III, Questions for Supreme Court Nominees at Confirmation Hearings: Excluding the
Constitution, 17 GA. L. REV. 913, 944 n.94 (1983). The purpose of this Article is not to weigh Williamss
credentials except to say that he was a former Oregon judge who proved instrumental during the 1857
Oregon Constitutional Convention and as a member of Congress during the adoption of the 1866 Civil Rights
Act and Fourteenth Amendment. See David Schuman, The Creation of the Oregon Constitution, 74 OR. L.
REV. 611, 616 (1995). For more on the history and life of Williams and his Supreme Court nomination, see
T.W. Davenport, The Late George H. Williams, 11 OR. HIST. Q. 279 (1910); Harvey W. Scott, An Estimate of
the Character and Services of Judge George H. Williams, 11 OR. HIST. Q. 223 (1910); Sidney Teiser, Life of
George H. Williams: Almost Chief-Justice, Part II, 47 OR. HIST. Q. 417 (1946). For the story of Williamss
nomination in his own words, including that of other candidates, see George H. Williams, Reminiscences of
the Supreme Court, 8 YALE L.J. 296 (1899).
144. Letter from George H. Williams to Ulysses S. Grant (Aug. 20, 1873), reprinted in ANNUAL
MESSAGE OF THE PRESIDENT 1873, supra note 140, at 1219.
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[Vol. 51
personal subjection were to be drawn from writers upon international and public
law, who do not always agree, and therefore it will be difficult for the
Government to act upon any such rules without a chance of controversy.145
It is for these reasons that the Foreign Relations Committee sought to adopt
uniform standards for vesting citizenship by birth.146 The bill was authored by
Massachusetts Representative Ebenezer R. Hoar, a former Massachusetts State
judge and U.S. Attorney General who had failed in his nomination to the bench of
the Supreme Court.147 It defined the terms domicile and reside as implying
a fixed residence at a particular place, with direct or presumptive proof of an
intent to remain indefinitely.148 The definition applied to both U.S. citizens
living abroad and aliens in the territorial United States. In terms of the latter, the
following rule was prescribed:
[A] child born within the United States of parents who are not citizens, and who
do not reside within the United States, and who are not subject to the
jurisdiction of the United States, shall not be regarded as a citizen thereof,
unless such child shall reside in the United States, or unless his or her father, or
in case of death of the father his or her mother, shall be naturalized during the
minority of such child, or such child shall within six months after becoming of
age file in the Department of State, in such form and with such proof as shall be
prescribed by the Secretary of State, a written declaration of election to become
149
such citizen, or shall become naturalized under general laws.
What makes this provision of such constitutional significance is that it

conditioned citizenship on the tenets of allegiance and domicile. In particular,
the provision disqualified from citizenship the children of alien parents
temporarily present. Indeed, the bill provided numerous exceptions to this
general rule, but these exceptions were only intended to reciprocate the rules
that the United States applied to its own citizens abroad.150 To put it another
way, the provision provides concrete evidence that who was subject to the
jurisdiction thereof was viewed as a matter of federal regulation, determined
by the national sovereignty of the United States.
Those that opposed the bill primarily took issue with bills distinctions
between native and naturalized citizens.151 To date, no prominent scholar has
145. Id. For the importance and use of international law to supplement the U.S. Constitution, see Ruth
Bader Ginsburg, Associate Justice, Supreme Court of the United States, A Decent Respect to the Opinions
of [Human]kind: The Value of Comparative Perspective in Constitutional Adjudication, Address Before the
International Academy of Comparative Law at American University (July 30, 2010), available at
http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?Filename=sp_07_30_10.html. For an
outstanding history, see ONUF & ONUF, supra note 23.
146. See JACKSON DAILY CITIZEN (Jackson, Mich.), Apr. 2, 1874, at 2, column 1.
147. See The Halting Appointments, DAILY EVENING BULLETIN (San Francisco, Cal.), Dec. 24, 1869, at
1, column 2.
149. Id.
150. Id. at 3280.
151. CHI. TIMES, May 3, 1874, at 6, column 2.
It is treason against the principle of American sovereignty to make any distinction between native
and naturalized citizens. It is treason by implication against the constitution of the United States.
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235
found any newspaper editorial or narrative claiming the bill to be a violation

of the Fourteenth Amendment. It is known that the Boston Daily Globe
supported the bill as properly excepting a child born within the United
States of parents who are neither residents, nor have been naturalized during
its minority.152 Meanwhile, all other newspaper accounts, at least that this
author has found, merely summarized the debate proceedings and provided no
commentary as to its constitutionality.153
Throughout the debates, only one person questioned congressional
authority in this regard. On the third day of debates, New York
Representative Robert S. Hale prepared a long speech attacking the bill on
numerous grounds. Hales primary objection was that of other opponents: the
bill treated citizens born abroad differently than those born in the United
States.154 Hales second objection was the bill conflicted with the duties of
government in terms of international norms.155 He then objected on the
grounds of the Fourteenth Amendment:
The general rule is that every person born within a sovereignty is by birth a
subject of that sovereignty. . . . This rule has no respect to the circumstances
under which the person may have been born, or the status of the parents at the
time of his birth; whether the father of the child born here is permanently
domiciled within our borders, or is here for temporary and commercial purposes,
or is a mere visitor or a casual traveler within our boundaries. If the child is born
156
within the United States, by that birth he is a citizen of the United States.
Those that support a broad interpretation of the Fourteenth Amendment will

claim this objection is why the bill was never put to vote. However, this
conclusion does not gain support in the legislative record. No one else on the
House floor objected to Hoars bill on this ground. The bill was debated for four
days, and opponents emphasized their disfavor on the grounds of distinction
between naturalized and born citizens, not unequivocal birthright citizenship.
In defense of the bill, Hoar stated it determined who shall be regarded
as citizens, in order that there may not be any question further on the
subject.157 To quell the fears of those who thought the bill took U.S.
citizenship away from citizens abroad, Hoar stated:
We are not undertaking to take any mans citizenship away; but the United
States have certain duties in regard to their citizens abroad. That provision of
the Constitution does not take away the right of a citizen of the United States to
become naturalized in a foreign country; it does not relate to it. Its object was
The president who would presume to discriminate between a native and foreign-born citizen at
home or abroad, would be unanimously and furiously impeached.
Id.
152. American Citizenship Abroad, BOS. DAILY GLOBE, Apr. 25, 1874, at 4.
153. See BOS. DAILY ADVERTISER, Apr. 23, 1874, at 1, column 8; N.Y. TRIBUNE, Apr. 23, 1874, at 2,
column 2; N.Y. TIMES, Mar. 30 1874, at 4, columns 12.
155. Id.
156. Id. at 3460.
157. Id. at 3492.
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[Vol. 51
to provide who should be citizens of the United States within its jurisdiction.
[The Fourteenth Amendments] object, in short, was to reverse the Dred Scott
158
decision. That was the great purpose of it.
Hoars understanding of jurisdiction was based on notions of national

sovereignty concerning foreign affairs, immigration, and citizenship. To
prevent foreign embarrassments, the bills supporters including the
Presidents cabinet, hoped to finally settle the terms of residency for purposes
of citizenship, both at home and abroad. Furthermore, Hoars reference to
Dred Scott is telling. It illuminates that the Fourteenth Amendment sought to
remedy the defects of state citizenship and its superior relation to federal
citizenship.159 Despite modern academic claims to the contrary, subject to
the jurisdiction thereof did not intend to completely strip the United States of
its international sovereignty over immigration, federal citizenship, and foreign
affairs. The debates do not reveal the drafters ever sought to remove all
notions of subjection and allegiance to government, for it was the very legal
basis that could exclude the children of diplomats, temporary sojourners,
Indians, and enemy troops from citizenship.160
Even after the bill was withdrawn for revisions, the main objection to the
bill remained the same in that it deprived American citizens of jurisdiction
after two years of residing abroad. Representative Leonard Myers, an
opponent of the bill, was happy to see the bill withdrawn, yet also attested to
its legitimate purpose:
The very able replies of the Cabinet, with the documents appended . . . form the
most valuable collection upon expatriation, naturalization, domicile, and
citizenship which we have. . . . I say, therefore, that no question ever came
more legitimately before a committee, and none better deserves to occupy
161
attention, challenging nevertheless, as it should, the closest scrutiny.
Myers agreed with Secretary of State Hamilton Fish that personal

subjection162 was an element of the Fourteenth Amendment, stating,
Jurisdiction is but another word for sovereignty.163 This sovereignty
required the United States to protect its citizens abroad absent an avowal or
act removing their allegiance, but it also required allegiance or personal
subjection with the intent of domicile from those within its territorial
jurisdiction. The fact of the matter remained that U.S. citizenship still rested
with the tenets of allegiance.
Indeed, the Fourteenth Amendment
158. Id. at 3493.
159. Although the states have no power to guide national citizenship through state legislation, there was
a recent attempt. See Julia Preston, State Lawmakers Outline Plans to End Birthright Citizenship, Drawing
Outcry, N.Y. TIMES, Jan. 5, 2011, http://www.nytimes.com/2011/01/06/us/06immig.html; Bob Christie,
Senate Panel Passes Birthright Citizenship Law, MY FOX PHOENIX (Feb. 22, 2011),
http://www.myfoxphoenix.com/dpp/news/immigration/birthright-citizenship-2-22-2011.
161. CONG. REC., 43RD CONG., 1ST SESS. 3597 (1874) (emphasis added).
162. Letter from Hamilton Fish to Mr. Washburne, June 28, 1873, reprinted in PAPERS RELATING TO THE
FOREIGN RELATIONS OF THE UNITED STATES 1873, supra note 140, at 257 (Wash., Govt Printing Office 1873).
163. CONG. REC., 43RD CONG., 1ST SESS. 3597.
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237
extinguished the doctrine of perpetual allegiance as inconsistent with

American practice and the rights of expatriation. However, the tenets of
temporary or local allegiance remained intact, as attested by numerous
commentators and courts preceding the Supreme Courts holding in Wong
Kim Ark.164
IV. THE BIRTHRIGHT CITIZENSHIP DEBATE IN THE
LATE NINETEENTH CENTURY
The lack of any early legislation defining residency or domicile would
prove problematic for the Department of State in adjudicating U.S. citizenship
claims. Hoars bill sought to remedy the different outcomes affected by
treaties, international law, and the doctrine of allegiance, but proved to be too
burdensome on U.S. citizens domiciled abroad. Thus, absent congressional
guidance, the Department of State continued adjudicating U.S. citizenship on
a case-by-case basis.
One such case was that of Ludwig Hausding who was born of persons
temporarily in the United States, yet never dwelled nor applied for
citizenship in the United States.165 Given these facts, Secretary of State
Frederick Theodore Frelinghuysen knew Hausding could only assert
citizenship on the ground of birth in the United States. However,
Frelinghuysen found this legal claim to be untenable, for by section 1992,
Revised Statutes, it is made a condition of citizenship by birth that the person
be not subject to any foreign power.166 Frelinghuysen elaborated:
Sections 1992 and 1993 of the Revised Statutes clearly show the extent of
existing legislation: that the fact of birth, under circumstances implying alien
subjection, establishes of itself no right of citizenship; and that the citizenship of
a person so born is to be acquired in some legitimate manner through the
167
operation of statute.
The reference to alien subjection is significant, for it denotes that

Hausdings parents had not personally subjected themselves to the jurisdiction
of the United States as to qualify for his citizenship. Hausdings case was not
the only one to rest on qualifications of personal subjection, residence, or
allegiance. In 1885, former Representative and current U.S. ambassador Boyd
Winchester wrote to Secretary of State Thomas F. Bayard168 on the matter of
164. 169 U.S. 649 (1898).

165. Letter from Frederick Theodore Frelinghuysen to John A. Kasson (Jan. 15, 1885), reprinted in
PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1873, supra note 140, at 395.
166. Id.
167. Id. (emphasis added). Frederick Theodore Frelinghuysen was a New Jersey lawyer, former New
Jersey Attorney General (18611866), Republican U.S. Senator from New Jersey, and U.S. Minister to
England before being appointed as Secretary of State by Chester Arthur. See BIOGRAPHICAL DIRECTORY OF
THE UNITED STATES CONGRESS 17742005, at 1085 (Andrew R. Dodge & Betty K. Koed eds., 2005)
[hereinafter BIOGRAPHICAL DIRECTORY].
168. Thomas F. Bayard was a lawyer and former Democratic U.S. Senator from Delaware until
appointed to Secretary of State by Grover Cleveland. See BIOGRAPHICAL DIRECTORY, supra note 167, at
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[Vol. 51
Richard Greisser, who desired papers to establish American citizenship.169 The

facts stipulated that in 1869 Greisser was born of two non-citizen parents in
Delaware, Ohio, but was removed to Switzerland within a year. Neither
Greisser nor his family ever returned to the United States, yet he sought
citizenship on the ground of being born in the United States.170
Winchester did not view the Fourteenth Amendment as unequivocally
granting citizenship to everyone born in the United States. Instead, Winchester
found the precedents and instructions to be so unsatisfactory and conflicting
that he declined to do anything until specially instructed from the Department.171
On the one hand, he read State Department precedent as granting a right of election
of citizenship on arriving at maturity to persons born in the United States.172 On
the other hand, Winchester found authorities vesting citizenship according to the
nationality of the father.173 If he had to choose an interpretation, however,
Winchester found it to be intimated, if not expressly held, that there should be a
personal subjection to the jurisdiction of the United States to complete and maintain
[a persons] character of or claim of citizenship.174
Bayard replied to Winchester that on general principles of international law
I do not consider . . . Richard Greisser . . . a citizen of the United States.175
Bayard had no doubt that Greisser was born in the United States, but the facts
presented made him subject to a foreign power and not subject to the
jurisdiction of the United States.176 Again, the Department of States reliance on
international law in this instance was deemed necessary given the absence of
congressional legislation. The statutes did not prescribe any right of election, thus
Bayard felt he must follow international precedent and grant citizenship if
Griesser had remained in the country. At the same time, however, Bayard
acknowledged that any rules concerning birthright citizenship could be
superseded by legislation when he acknowledged the 1866 Civil Rights Act as a
constitutional exercise as to who is subject to the jurisdiction thereof.177
A year later, Bayard again referred to the international rules respecting
election to adjudicate the citizenship of Friedrich de Bourry, who had been born
in New York on December 4, 1862, of Austrian parents temporarily resident:
625. For a history of Bayards congressional career, see CHARLES CALLAN TANSILL, THE CONGRESSIONAL
CAREER OF THOMAS FRANCIS BAYARD, 18691885 (1946).
169. Letter from Boyd Winchester to Thomas F. Bayard (Nov. 4, 1885), reprinted in PAPERS RELATING
TO THE FOREIGN RELATIONS OF THE UNITED STATES, TRANSMITTED TO CONGRESS, WITH THE ANNUAL
MESSAGE OF THE PRESIDENT, DECEMBER 8, 1885, at 813 (Wash., Govt Printing Office 1885) [hereinafter
PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1885].
170. Id. at 814.
171. Id.
172. Id.
173. Id.
174. Id. (emphasis added).
175. Thomas F. Bayard to Boyd Winchester, Nov. 28, 1885, reprinted in PAPERS RELATING TO THE
FOREIGN RELATIONS OF THE UNITED STATES 1885, supra note 169, at 814.
176. Id. at 815 (internal quotations omitted).
177. Id.
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239
It is not claimed that his father was ever naturalized, or made the requisite
declaration of his intention to become a citizen of the United States, or in any
way signified his intention formally to abjure his Austrian allegiance. Nor is it
pretended that when . . . the present memorialist arrived at full age, he took any
steps to make or record his election of citizenship in the United States. . . .
Under these circumstances it is not necessary for me to consider the question
whether Friedrich de Bourry was, at the time of his birth, a citizen of the United
States under the naturalization statutes and the fourteenth amendment of the
178
Constitution of the United States.
It is important to note that the right of election to citizenship was never

part of our Anglo-American tradition. It developed as an international norm
in the mid to late nineteenth century, and in terms of statutory law, the United
States maintained no provision on the subject. Indeed, Ebenezer Hoars bill
sought to codify a right to election to certain classes. However, the bills
defeat left the Secretary of State to adjudicate U.S. citizenship on a case-bycase basis according to international precedent.
Take for instance a query from the Belgian government as to whether all
persons born upon the soil were citizens of the United States.179 Bayard
accurately replied that both the 1866 Civil Rights Act and Fourteenth
Amendment controlled, yet found the issue was a bit more complicated than
mere birth in the United States:
[Q]uestions arising thereunder must be considered upon the facts presented in
actual cases in which a ruling becomes necessary, giving due heed to the
general principle that the right of election of citizenship commonly pertains to
the individual himself on becoming sui juris [or upon their consent and being
180
competent].
Here again, Bayard relied on the international rules respecting election to

determine U.S. citizenship. He also acknowledged that any subsequent
statutes in time would control future determinations, implying that subject to
the jurisdiction thereof gave Congress flexibility in defining which alien
classes qualified.181
When William F. Wharton assumed the role of Secretary of State, he too
implied Congress was not foreclosed from legislating which alien classes
were subject to the jurisdiction thereof. In 1891, Wharton wrote to F.D.
Grant that [t]here has been not a little diversity of opinion as to the scope to
be given to the words not subject to any foreign power in the 1866 Civil
178. Letter from Thomas F. Bayard to James Fenner Lee (July 24, 1886), reprinted in PAPERS RELATING
TO THE FOREIGN RELATIONS OF THE UNITED STATES, TRANSMITTED TO CONGRESS, WITH THE ANNUAL
MESSAGE OF THE PRESIDENT, DECEMBER 6, 1886, at 13 (Wash., Govt Printing Office 1887).
179. Letter from Th. de Bounder de Melsbroeck to Thomas F. Bayard (Mar. 27, 1888), reprinted in
PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, TRANSMITTED TO CONGRESS, WITH
THE ANNUAL MESSAGE OF THE PRESIDENT, DECEMBER 3, 1888, at 48 (Wash., Govt Printing Office 1889)
[hereinafter PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1888].
180. Letter from Thomas F. Bayard to Th. de Bounder de Melsbroeck (Apr. 2, 1888), reprinted in
PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1888, supra note 179, at 48, 49.
181. Id.
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Rights Act.182 Wharton conveyed confidence that a diplomatic officer fell

within the exception, for the children of ambassadors form an exception to
the rules as to persons being born in the allegiance of a sovereign who are
born on this soil.183
Whartons reference to allegiance is significant. It confirms that
birthright citizenship was not solely based upon the place of birth and being
subject to the laws. Birthright citizenship required something more. Even
tracing birthright citizenship to the founding generation, we see references to
allegiance in exchange for political rights.184 The doctrine of allegiance was
never conflated with merely being subject to a nations laws.185 It required
some form of personal subjection to government, not mere presence.186 To
assert otherwise would be to dilute national sovereignty and every nations
right of self-preservation.187
A. The Personal Subjection and Allegiance View of Subject to the
Jurisdiction Thereof
In addition to the Department of State adjudicating birthright citizenship
claims according to allegiance, personal subjection, and domicile, a number of
intellectuals interpreted the Citizenship Clause as requiring more than mere
birth in the territorial United States. Each viewed subject to the jurisdiction
thereof as imposing some form of personal subjection or requisite allegiance
in order for birthright citizenship to vest. Naturally, there were different
variations as Bernadette Meyler points out in her influential article The
Gestation of Birthright Citizenship, 18681898.188 What Meylers survey
lacks, however, is a basic understanding of the tenets of allegiance. She
seemingly dismisses any notions of allegiance or subjection as historically
unattainable and inconsistent with the text of the Fourteenth Amendment.189
Perhaps more importantly, Meylers article is not a complete or accurate
survey of the scholarly texts touching upon the Citizenship Clause. A full
survey reveals the tenets of allegiance and personal subjection could limit
who was subject to the jurisdiction thereof.
182. Letter from William F. Wharton to F.D. Grant (Aug. 10, 1891), reprinted in PAPERS RELATING TO
THE FOREIGN RELATIONS OF THE UNITED STATES, TRANSMITTED TO CONGRESS, WITH THE ANNUAL MESSAGE
OF THE PRESIDENT, DECEMBER 9, 1891, at 21 (Wash., Govt Printing Office1892).
183. Id.
185. Margaret Stock has claimed that the State Department has never interpreted the Citizenship
Clause in a manner that would deny citizenship to non-permanent residents. See Aimee Rawlins, The
Birthright
Citizenship
Debate,
COUNCIL ON FOREIGN RELATIONS,
(Jan.
26, 2011),
http://www.cfr.org/immigration/birthright-citizenship-debate/p23900 (Interview with Margaret Stock,
Adjunct Professor, Univ. of Alaska Anchorage). However, the evidence in Part IV of this Article contradicts
Stocks historical assumption.
187. Id. at 7386; Charles, supra note 24, at 11012.
188. Meyler, supra note 15, at 53148.
189. Id. at 54859.
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241
One such important late nineteenth-century intellectual was Samuel T.

Spear190 who defined subject to the jurisdiction thereof as a phrase of limitation,
intended to exclude certain persons from the classes specified.191 Years earlier,
Spear had outlined how the Fourteenth Amendment prescribed federal and state
spheres of influence but never identified the limits of the Citizenship Clause.192
However, in 1877, he described Section 1 in the following terms:
The Fourteenth Amendment, so far from introducing an absolutely new theory
into the Constitution with respect to citizenship, simply extended an old theory
to persons not previously embraced within its provisions, giving additional
protection to certain citizen rights, and in this way enlarging the applications of
the theory. The primary purpose of the amendment was to bring the
emancipated negroes of this country within the category of citizenship in both
of its forms [state and federal], and thus place them on an equal footing with the
193
white race about whose citizenship there was no dispute.
In terms of the Citizenship Clause, Spear confirmed its purpose was to

override Dred Scott as well as prevent any subsequent Congress or the
Supreme Court from declaring the 1866 Civil Rights Act unconstitutional.194
Spear also noted that the Citizenship Clause did not override traditional
notions of state sovereignty. Instead, it delegate[d] the power of removing
the disabilities of alienage to Congress, so far as U.S. citizenship and what
may be called inter-state citizenship are concerned.195 Spear elaborated:
What [the Citizenship Clause] says is, that certain described persons shall be citizens
of the United States, and that these same persons, being resident in a State or States,
shall be citizens of such State or States. It does not rest either proposition upon the
authority of the other, but places both in the organic law of the land by the sovereign
authority of the people. . . . Citizenship, in the generic sense, simply means
membership in a political community; and what this membership means depends
196
upon the constitution and the laws of the community.
In 1880, Spear again commented on the constitutional scope of the

Citizenship Clause. First, he addressed Section 2 and its definition of
persons for purposes of apportionment. Overall, Spear agreed with
Timothy Farrar197 that persons are meant resident persons, inhabitants
190. Samuel T. Spear was the author of numerous treatises on the law. See SAMUEL T. SPEAR, THE
LEGAL-TENDER ACTS: CONSIDERED IN RELATION TO THEIR CONSTITUTIONALITY AND THEIR POLITICAL
ECONOMY (New York 1875); SAMUEL T. SPEAR, THE LAW OF EXTRADITION, INTERNATIONAL AND INTERSTATE: (Albany 1885); SAMUEL T. SPEAR, THE LAW OF THE FEDERAL JUDICIARY: A TREATISE ON THE
PROVISIONS OF THE CONSTITUTION, THE LAWS OF CONGRESS, AND THE JUDICIAL DECISIONS RELATING TO
THE JURISDICTION OF, AND PRACTICE AND PLEADING IN THE FEDERAL COURTS (New York 1883) [hereinafter
SPEAR, THE LAW OF THE FEDERAL JUDICIARY].
191. Samuel T. Spear, American Citizenship, 15 ALB. L. J. 484 (1877).
192. See Samuel T. Spear, State Citizenship, 27 INDEPENDENT 1381 (1875); Samuel T. Spear, National
Protection, 24 INDEPENDENT 1231 (1872) [hereinafter Spear, National Protection] (As between the two
forms of citizenship the national is supreme in the responsibilities and subjection it involves.).
193. Spear, supra note 191, at 48485.
194. Id. at 485.
197. FARRAR, supra note 125, at 40304.
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[Vol. 51
within the boundaries of a state.198 In other words, apportionment did not

vest by mere presence in the United States. A person also needed to be a
lawful resident or accepted member of the nation to obtain representational
rights. Not surprisingly, the same held true for birthright citizenship. As
Spear aptly put it, the political significance which attaches to the place of
birth grows out of the fact that is usually accompanied with subjection to the
jurisdiction and taken to indicate the jurisdiction to which the person is
subject.199 In other words, it all boiled down to lawful domicile:
Domicile is residence as a final abode. To constitute it, there must be: 1,
residence, actual or inchoate; 2, the non-existence of any intention to make
domicile elsewhere. . . .
The animus manendi [or intention of remaining to acquire domicile] is the
chief point . . . and distinguishes a legal residence, or one that involves
citizenship, from a temporary or transient occupancy which carries with it no
200
change of citizenship.
Spear was not the only late nineteenth-century authority to read subject to
the jurisdiction thereof as affirming the tenets of allegiance, personal subjection,
and lawful domicile. Lawyer, intellectual, and former U.S. ambassador William
L. Scruggs201 agreed with Spear202 that the Citizenship Clause reversed the
Jeffersonian order of allegiance from state to federal sovereignty and codified
the English common law touching upon birthright citizenship,203 but on the wellestablished caveat that personal subjection to our jurisdiction remained an
element of citizenship.204 In other words, Scruggs viewed the Citizenship
Clause as neither embodying a pure test by place of birth, nor that by the
nationality of the parent, without important qualifications.205
The question that vexed Scruggs and his fellow American diplomats was
the lack of congressional guidance as to when sufficient allegiance attached
for citizenship to vest: How or under what circumstances a citizen may be
deemed to have changed his allegiance, and to have obliterated all obligations
resulting from his previous allegiance, has been among the vexed questions
connected with our administration of foreign affairs.206
If one follows the congressional debates concerning the 1866 Civil Right
Act and the Fourteenth Amendment, the answer to Scruggss query is the
198. Samuel T. Spear, Indians Not Taxed, 32 INDEPENDENT 1639 (1880).

200. SPEAR, THE LAW OF THE FEDERAL JUDICIARY, supra note 190, at 14243 (citing FRANCIS
WHARTON, A TREATISE ON THE CONFLICT OF LAWS 21 (2d ed. 1881)).
201. For some of his writings not quoted in this article, see William L. Scruggs, Blundering American
Diplomacy, 145 N. AM. REV. 313 (1887), William L. Scruggs, The Monroe Doctrine: Its Origin and Import, 176
N. AM. REV. 185 (1903), and William L. Scruggs, The Progress of Arbitration, 61 ADVOC. PEACE 239 (1899).
202. See Spear, State Citizenship, supra note 192, at 1381; Spear, National Protection, supra note 192,
at 1231.
203. William L. Scruggs, Ambiguous Citizenship, 1 POL. SCI. Q. 199, 20001 (1886).
204. Id. at 201.
205. Id.
206. William L. Scruggs, The American Abroad, 23CENT. L.J. 196, 198 (1886).
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243
establishment of lawful domicile or when persons become part of the political

jurisdiction as to qualify for representation.207 Even this answer, however,
proved unsatisfactory in the late nineteenth century, for the Department of
State was forced to resort to international doctrine to fill in the statutory gap
and define who had, in fact, established the requisite domicile for birthright
citizenship to vest.208
Irving Berdine Richman was another late nineteenth-century intellectual
who interpreted the Citizenship Clause as an affirmation of common law
principles. The author of numerous histories,209 Richman may have provided
the first historical analysis on the Citizenship Clause, often quoting members
of the Thirty-Ninth Congress at length.210 While recognizing the different
opinions among the courts and scholars, Richman believed the great weight
of opinion supported the notion that citizenship of the United States was not
created but simply declared by the fourteenth amendment.211 This meant
that aspects of both the English common law and international law applied,212
which meant the children of visiting or non-resident foreigners could be
constitutionally excluded from citizenship:
[C]itizenship and state membership being convertible terms, the citizenship
of a parent may truthfully be said to attach immediately at birth to a child born
out of the jurisdiction of the parents state; for by a temporary absence from his
213
state an individual manifestly does not lose his membership therein.
Perhaps the most forthright intellectual to take up the constitutional

scope of the Citizenship Clause was the U.S. Chief Justice of the Samoa
Islands Henry C. Ide. He posed the question: [D]oes not the very fact of
birth in our country render one subject to the jurisdiction thereof, and not
subject to any foreign power? 214 Ide recognized the constitutional tradition
of jus soli over jus sanguinis citizenship, yet he also understood the
importance of legal domicile as a means to define the former according to the
tenets of allegiance:
When does the new principle of place of birth begin to extinguish the
nationality? When does it complete that destruction and itself assume full sway
and clothe the descendant with the new citizenship? It is no answer to say that
the child is born with the stamp of his fathers nationality upon him. He is
likewise born with the stamp . . . of his fathers actual domicile and intention
never to renew or recognize his former allegiance and to adhere to the new one.
Which is the more indelible and controlling? Ultimately the latter controls in all

209. For some of Richmans works, see IRVING BERDINE RICHMAN, JOHN BROWN AMONG THE
QUAKERS: AND OTHER SKETCHES (1894) and IRVING BERDINE RICHMAN, RHODE ISLAND, A STUDY IN
SEPARATISM (1905).
210. Irving Berdine Richman, Citizenship of the United States, 5 POL. SCI. Q. 105, 10716 (1890).
211. Id. at 123.
212. Id. at 117.
213. Id. at 106.
214. Henry C. Ide, Citizenship by BirthAnother View, 30 AM. L. REV. 241, 248 (1896).
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cases. According to our national theories, as expounded in our foreign relations

and as suited to our conditions, the new stamp is controlling from the first birth
in the new country, not from the second or later generations.
But the question of domicile is important in this connection [of jus soli
citizenship]. One born of parents temporarily in our country is not born with
the stamp of domicile and intention to reside here. Those two elements of
215
national jurisdiction are wanting.
The question that lingered is what constituted domicile. According to

statements by Lyman Trumbull and Charles Sumner, the subject could be
legislated consistent with the United Statess plenary authority over
immigration and foreign affairs.216 Ide also inferred domicile was a matter of
national legislation, but until then it must be settled on internationalist
principles. [W]here an alien is actually domiciled in our country, fixed for life
as an inhabitant, wrote Ide, his original nationality is so far weakened that our
institutions ought not to consent that its inanimate shadow shall rest upon his
offspring and deprive them of the inherent rights which are theirs by birth.217
For whatever reason, Bernadette Meyler dismisses Ides analysis by inferring
that he personally sought a qualification to exclude the children of Chinese from
birthright citizenship.218 Ide did no such thing. He merely applied the text of the
Fourteenth Amendment to the common law and requisite internationalist principles
as so many others had done before him. Ide properly understood the general rule
that birth on the soil gave rise to citizenship. However, he also understood the
importance of allegiance and domicile in order for citizenship to vest, two legal
doctrines that Meyler never adequately explains.219
The last prominent intellectual to interpret the Citizenship Clause in
terms of allegiance, domicile, and personal subjection was Boyd Winchester.
In 1885, as a U.S. ambassador, Winchester acknowledged the competing
interpretations of subject to the jurisdiction, and concluded it must require
some form of personal subjection.220 Twelve years later and removed from
political service, Winchester maintained the Fourteenth Amendment did not
grant citizenship to everyone:
The United States claim all persons born within their territory as native born citizens,
whatever may have been the nationality of their parents. There are, however,
exceptions to this rule, resulting from the requirement of personal subjection to the
jurisdiction thereof(of the United States). This excludes Indians, the children of
foreign diplomatic representatives born within the limits of the United States, and the
221
children of persons passing through or temporarily residing in this country.

217. Ide, supra note 214, at 249.
218. See Meyler, supra note 15, at 53637.
219. Ide, supra note 214, at 25052.
220. Letter from Boyd Winchester to Thomas F. Bayard, Nov. 4, 1885, reprinted in PAPERS RELATING
TO THE FOREIGN RELATIONS OF THE UNITED STATES 1885, supra note 169, at 814.
221. Boyd Winchester, Citizenship in Its International Relation, 31 AM. L. REV. 504, 504 (1897)
(emphasis added).
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245
Winchester supported his exclusion of temporary sojourners in terms of

domicile and allegiance. Family domicile is the factor of prime importance,
wrote Winchester, when determining jus soli citizenship and is the great
defect of jus sanguinis citizenship.222 He admitted there were differing
internationalist theories as to when domicile attached,223 but acknowledged
the doctrine of allegiance still applied in order for the full protection of the
nation to vest, including any rights to citizenship: Citizenship is an attribute
of national sovereignty and not merely of individual or local existence. It is a
sacred right, full of grave consequences, granted with solemn formalities, and
its existence should always be well defined and indisputable.224
B. The Internationalist or Not Subject to Any Foreign Power View of
Subject to the Jurisdiction Thereof
As shown above in Part IV.A, citizenship by birth could require legal
conditions precedent in order for that right to vest. Indeed, birth in the
sovereign territory of the United States was the general rule, but there were
exceptions to the rule based upon legal domicile, the tenets of allegiance, and
personal subjection. Not all late nineteenth-century commentators adhered to
this understanding of the Citizenship Clause. There was a small contingent of
intellectuals that interpreted the law as prescribing jus sanguinis principles.
In 1884, George D. Collins advanced the most extreme version of this
approach to interpreting the Citizenship Clause. Unlike Ide, Collinss analysis
was seemingly influenced as a means to exclude the children of Chinese parents
from citizenship. He described the Chinese as a people foreign to us in every
respect that rigidly adhere to the peculiar customs, habits and methods of their
forefathers.225 He outright dismissed as unsound reasoning that a person
born within the United States, whose father at the time of such birth was an
alien, [could be] a citizen of the United States.226 He even described the jus
soli doctrine as manifestly impolitic.227
Collins came to this ahistorical determination because he viewed the
common law as not part of the jurisprudence of the United States.228
Thus, in contrast to the overwhelming majority of commentators that viewed
the Citizenship Clause as an affirmance of the English common law, Collins
viewed it as declaratory of the principles of international law.229 Pushing any
222. Id. at 505.

223. Id. at 50708.
225. George D. Collins, Are Persons Born Within the United States Ipso Facto Citizens Thereof?, 18
AM. L. REV. 831, 834 (1884).
226. Id. at 831.
227. Id. at 834.
228. Id. at 831.
229. Id. at 837.
246
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[Vol. 51
national common law debate aside,230 Collins at least came to agreement with
his jus soli counterparts that subject to the jurisdiction thereof was a phrase
of limitation: The phrase . . . subject to the jurisdiction thereof does not
mean territorial jurisdiction, as has been held in some cases, but means
national jurisdiction; that is the jurisdiction which a nation possesses over
those who are its citizens or subjects as such.231
Collins also properly identified the 1866 Civil Rights Bills language
not subject to any foreign power as being synonymous with the subject to
the jurisdiction thereof, yet somehow refused to accept the intent of each
provision was to adhere to jus soli principles.232 Eleven years later, Collins
did not budge from his pure internationalist stance. He never once referred to
the ratifying debates and intently focused on synthesizing the phrases of
limitation embodied in the 1866 Civil Rights Act and the Citizenship
Clause.233 This likely explains why Collins refused to budge from the
internationalist view.234
Alexander Porter Morse was another prominent late nineteenth-century
internationalist.235 In his 1881 work entitled A Treatise on Citizenship, Morse
provided an interpretation of the Citizenship Clause that comported with the
drafters intent:
This section does not confer citizenship upon persons of foreign birth. The
words subject to the jurisdiction thereof exclude the children of foreigners
transiently within the United States, as ministers, consuls, or subjects of a
foreign nation. This amendment does not include Indians and others not born in
and subject to the jurisdiction of the United States; but an Indian, if taxed, after
236
tribal relations have been abandoned, is a citizen.
Here again, another commentator properly understood subject to the

jurisdiction thereof as a phrase of limitation. Like Collins, however, Morse
230. This topic was a matter of heated debate following the ratification of the Constitution. See Patrick
J. Charles, Originalism, John Marshall, and the Necessary and Proper Clause: Resurrecting the
Jurisprudence of Alexander Addison, 58 CLEV. ST. L. REV. 529, 55051 (2010).
231. Collins, supra note 225, at 837.
232. Id.
233. George D. Collins, Citizenship by Birth, 29 AM. L. REV. 385, 39094 (1895).
234. Collins continued his internationalist view as an amicus before the Supreme Court, but his stance
was not adopted by the Court. See United States v. Wong Kim Ark, 169 U.S. 649 (1898). In 1905, Collins
fled to British Columbia after being indicted for perjury charges. When Collins was extradited to California
to face the charges, he challenged and lost his claim of an invalid extradition warrant. See Collins v. ONeil,
214 U.S. 113 (1909), reprinted in 3 AM. J. INTL L. 747 (1909). An interesting footnote to the case is that
Samuel T. Spears extradition treatise was cited in support of the Courts judgment. Id. at 751. For Spears
view on the Fourteenth Amendment, see supra notes 190200.
235. In addition to his treatise, Morse was a frequent commentator on international law and citizenship.
See Alexander Porter Morse, The Civil and Political Status of Inhabitants of Ceded Territories, 14 HARV. L.
REV. 262 (1900); Alexander Porter Morse, Status of Inhabitants of Territory Acquired by Discovery,
Purchase, Cession, or Conquest, According to the Usage of the United States, 48 AM. L. REG. 332 (1900);
Alexander Porter Morse, Citizenship by Naturalization, 27 AM. L. REG. 665 (1879); Alexander Porter Morse,
Rights and Duties of Belligerents and Neutrals from the American Point of View, 46 AM. L. REG. 657 (1898).
236. ALEXANDER PORTER MORSE, A TREATISE ON CITIZENSHIP, BY BIRTH AND NATURALIZATION, WITH
REFERENCE TO THE LAW OF NATIONS, ROMAN CIVIL LAW, LAW OF THE UNITED STATES OF AMERICA, AND
THE LAW OF FRANCE 248 (Boston, Little, Brown & Co. 1881).
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247
misinterpreted the 1866 Civil Rights Act as codifying jus sanguinis principles.237
He failed to understand that subject to the jurisdiction thereof was adopted as a
means to clarify the 1866 Civil Rights Act and once and for all ensure that federal
jurisdiction superseded any State claims to national citizenship.238
V. WONG KIM ARK, THE SUPREME COURT, AND OUR CURRENT BIRTHRIGHT
CITIZENSHIP JURISPRUDENCE
In addition to the views in Part IV, there were some intellectuals that
viewed the Citizenship Clause in its broadest sense. They felt subject to the
jurisdiction thereof merely equated to subject to the laws.239 The
argument, as advanced in the late nineteenth century, is best articulated by
Judge Thomas P. Stoney:
It is said that the words subject to the jurisdiction thereof, do not mean
territorial jurisdiction, but national jurisdiction, that is, the jurisdiction which
a nation possesses over its citizens or subjects as such. There is no such
distinction between national and territorial jurisdiction. . . . All jurisdiction is
territorial. The jurisdiction of a nation is co-extensive with and confined to its
240
territorial limits.
It is interesting that Stoney acknowledged the argument as probable, yet

understood the legal complexities in accepting this analysis wholesale.241 In
particular, Stoney experienced difficulties in reconciling such a broad
interpretation with the Supreme Courts opinions in the Slaughterhouse
Cases242 and Elk v. Wilkins.243 In the Slaughterhouse Cases, the Court never
decided the constitutional scope of the Citizenship Clause. The Court merely
stated in dicta:
[The Citizenship Clause] declares that persons may be citizens of the United
States without regard to their citizenship of a particular State, and it overturns
the Dred Scott decision by making all persons born within the United States and
subject to its jurisdiction citizens of the United States. That its main purpose
was to establish the citizenship of the negro can admit of no doubt. The phrase,
subject to its jurisdiction was intended to exclude from its operation children
of ministers, consuls, and citizens or subjects of foreign States born within the
244
United States.
There is no disagreement among contemporary scholars that the children

of foreign ministers and consuls were excluded from citizenship by birth.
237. Alexander Porter Morse, Citizenship of Children of Aliens Born in the United States, 30 ALB. L. J.
420, 420 (1884).
238. See supra notes 90128.
239. Garrett Epps provides his own intellectual summary supporting this view. See Epps, supra note 5,
at 37381; see also D.H. Pingrey, Citizens, Their Rights and Immunities, 36 AM. L. REG. 539, 540 (1888)
(interpreting birthright citizenship broadly, while agreeing that the aliens must reside therein).
240. Thomas P. Stoney, Citizenship, 34 AM. L. REG. 1, 8 (1886).
241. Id. at 814.
242. 83 U.S. 36 (1873).
243. 112 U.S. 94 (1884).
244. 83 U.S. 36, 73 (1873).
248
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However, there is disagreement about what the Court meant by subjects of

foreign States. Did the Court intend to acquiesce to jus sanguinis
citizenship? Did the Court interpret the Citizenship Clause in conjunction
with the text of the 1866 Civil Rights Act or was it implicitly affirming the
conditions precedent for birthright citizenship to vest? The answer is unclear,
but there is nothing in the dissent or majority opinions that dismissed the
United Statess plenary authority over immigration, foreign affairs, the
doctrine of allegiance, or residence.245
In Elk v. Wilkins, the Court again touched upon the constitutional scope of
the Citizenship Clause. This time the question before the Court was one of
national citizenship. In particular, the question was whether a person born of
Indian parents was subject to the jurisdiction thereof. The Court properly read
Section 1 in conjunction with Section 2 to hold that John Elk did not satisfy the
original intent of the Citizenship Clause246 and therefore could not claim voting
protections under the Fifteenth Amendment.247 In terms of all non-Indian
persons born in the territorial United States, the Court stated in dicta:
The evident meaning of [subject to the jurisdiction thereof] is, not merely
subject in some respect or degree to the jurisdiction of the United States, but
completely subject to their political jurisdiction, and owing them direct and
immediate allegiance. And the words relate to the time of birth in the one case,
as they do to the time of naturalization in the other. Persons not thus subject to
the jurisdiction of the United States at the time of birth cannot become so
afterwards, except by being naturalized, either individually, as by proceedings
under the naturalization acts; or collectively, as by the force of a treaty by which
248
foreign territory is acquired.
Here again, the Court left much wanting in terms of constitutional

interpretation. What did it mean by completely subject to the political
jurisdiction of the United States? At what point did direct or immediate
allegiance vest? Certainly, the Court did not mean birth in itself vested
allegiance, for the rest of the paragraph would be moot. If one examines
Justice Harlans dissent, we find birthright citizenship to be dependent upon
such factors as the parents being subject to taxation and other public
burdens in accordance with the intent of the 1866 Civil Rights Act.249
According to Harlan, the same would have held true for the Fourteenth
Amendment, for the former [1866 Civil Rights Act] urged the adoption of
the latter.250
245. Indeed Justice Fields dissent states that citizenship is dependent upon the place of their birth, and
not upon the condition of their ancestry, but claims this in the context that the states cannot impose
residence requirements for U.S. citizenship to vest. Fields dissent is silent as to the federal governments
authority to define the terms of domicile, residence, allegiance, or personal subjection. Id. at 95 (Field, J.,
dissenting).
246. For the drafters intent in reading both provisions together, see supra notes 119128.
247. Elk v. Wilkins, 112 U.S. 94, 109 (1884).
248. Id. at 102.
249. Id. at 114 (Harlan, J., dissenting).
250. Id. at 115.
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249
Despite these holdings, the issue of whether persons born of alien parents in
the territorial United States were, in fact, citizens remained unclear as a
jurisprudential matter. As seen in Parts III and IV, government officials were
forced to adjudicate U.S. citizenship on a case-by-case basis. The lack of any
affirmative congressional authority as to who was not subject to any foreign
power, yet also subject to the jurisdiction thereof remained unsettled.
Before the Supreme Court would hear Wong Kim Ark and settle the
jurisprudential question, Marshall B. Woodworth analyzed the case in light of
the district court opinion.251 Woodworth recognized a number of important
legal facts. First, the district court opinion seemingly conflicted with
Supreme Court precedent in the Slaughterhouse Cases.252 Second, the
nations of the world generally adhered to two doctrines of citizenship, jus soli
and jus sanguinis.253 Third, there was very little substantive case law directly
addressing whether the Citizenship Clause encompassed the child of two alien
parents residing in the territorial United States.254
To Woodworth, settling the constitutional issue boiled down to the
relationship between the 1866 Civil Rights Act and the Citizenship Clause:
These two expressions [of the law] are, to all intents and purposes, the same in
meaning, for it may well be said that one who is subject to the jurisdiction of the
United States is not subject to any foreign power. Taking the phrase as it is
contained in the constitutional provision, and the question presents itself, what
was intended to be the application of the word jurisdiction? Does it mean, to
be subject to the laws of the United States, or has it another and a more
255
extended meaning?
Woodworth answered the query just as the drafters envisioned.256 He

believed persons are subject to the jurisdiction of the United States who are
within [its] dominions and under the protection of [its] laws, and with the
consequent obligation to obey them, when obedience can be rendered; and
only those thus subject by their birth . . . are within the terms of the
amendment.257 Thus, subject to the jurisdiction thereof did not mean mere
presence in the territorial jurisdiction. It required more according to the tenets
of allegiance, domicile, and personal subjection. Indeed, Woodworth
understood every nation may affix conditions, or regulate the acquisition of
citizenship, in accordance with what it may deem most conducive to its
policy, stability and prosperity,258 with the United States electing citizenship
on jus soli principles. At the same time, however, he acknowledged that the
251. Marshall B. Woodworth, Citizenship of the United States Under the Fourteenth Amendment, 30
AM. L. REV. 535 (1886).
252. Id. at 536.
253. Id.
254. Id. at 53637.
255. Id. at 541.
256. See supra Part II.B.
258. Id. at 545.
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[Vol. 51
subject of citizenship was co-extensive with the right of a nation to admit or

exclude aliens and to prescribe the terms of their admission or exclusion.259
Herein lays the interpretational problem with those modern
commentators that read the Citizenship Clause to include virtually
anyone present. Take for instance a recent article by Matthew Ing, who
asserts immediate allegiance is satisfied by being in U.S. territory and
directly subject to its sovereign power.260 This assumptive take on
allegiance ignores federal plenary authority over immigration and
foreign affairs.261 The right to exclude non-citizens according to any
condition dates back to our Anglo origins and was well understood by
the founding generation.262 Although not expressly codified in the
Constitution, it is a sovereign right, fixed by the law of nations, as a
means for national self-preservation and based on principles of
allegiance.263 A non-citizen could not gain the full protection of a nation
without fully submitting to the sovereignty of the nation.264 This is why
late eighteenth- and nineteenth-century discussions on citizenship were
always intertwined with references to allegiance, residence, domicile,
and personal subjection. As Woodworth informs us, the doctrines must
be co-extensive with each other,265 for any person could not expect to

260. Ing, supra note 5, at 35. For some other attempts to dismiss the importance of the doctrine of
allegiance, see James C. Ho, Defining American: Birthright Citizenship and the Original Understanding of
the 14th Amendment, in MADE IN AMERICA: MYTHS & FACTS ABOUT BIRTHRIGHT CITIZENSHIP 6, 11 (2009),
available at http://www.immigrationpolicy.org/sites/default/files/docs/Birthright%20Citizenship%20091509.
pdf [hereinafter MADE IN AMERICA] (arguing that allegiance is moot because the text of the Citizenship
Clause requires jurisdiction, not allegiance. ); Elizabeth B. Wydra, Birthright Citizenship: A
Constitutional Guarantee, AM. CONST. SOCY L. & POLY 9 (2009), available at http://www.acslaw.org/
files/Wydra%20Issue%20Brief.pdf (arguing the allegiance of the parents is insignificant, for allegiance
spring[s] from the place of ones birth, not the citizenship status of ones parents.).
261. For some recent scholarship disagreeing with this important historical and legal fact, see Epps,
supra note 5, at 34991 and Shawhan, supra note 5, at 68 (concluding the relevant criterion [for birthright
citizenship to vest], historically speaking, is the extent of U.S. sovereign authority over those children at
birth, not the consent of the political community to their membership).
262. See Charles, supra note 24, at 67118. It is often ahistorically asserted that the Supreme Court
created the plenary power doctrine. See Kevin R. Johnson, Congress to Apologize for the Chinese
Exclusion Act?, IMMIGRATIONPROF BLOG (Aug. 1, 2011), http://lawprofessors.typepad.com/immigration/
2011/08/congress-to-apologize-for-the-chinese-exclusion-act.html.
For some prominent scholarship
advancing this myth, see T. Alexander Aleinikoff, Federal Regulation of Aliens and the Constitution, 83 AM.
J. INTL L. 862 (1989); Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese
Exclusion and Its Progeny, 100 HARV. L. REV. 853, 858 (1987); Hiroshi Motomura, Immigration Law After a
Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L. J. 545
(1990); and Peter J. Spiro, Explaining the End of Plenary Power, 16 GEO. IMMIGR. L.J. 339 (2002).
263. Charles, supra note 24, at 89, 94, 103, 11013.
264. Id. at 8388, 10305; see also MORSE, supra note 236, at 159 (temporary allegiance (which
describes the obedience due by an alien to the laws of the jurisdiction in which he happens to be commorant)
is everywhere recognized); id. at 160 (Certain persons may . . . be under the jurisdiction of two different
states. . . . In case of conflict, the preference will be given to the state in which the individual or family in
question have their domicile. . . . If the oath of allegiance is the first tie which binds the citizen to the state, it
is evident that the individual cannot appeal . . . simultaneously to two sovereignties).
265. Woodworth, supra note 251, at 546.
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251
be afforded political rights or benefits on any footing other than legal

admission and acceptance into the community.266
The holding in Wong Kim Ark provides nothing to undermine this basic
understanding of our Anglo-American tradition. The case concerned the birth
of Wong Kim Ark in the territorial United States to parents who were both of
Chinese decent and legal residents of California.267 The Court emphasized
that its previous decisions touching upon the Citizenship Clause did not
present these facts268 and even noted this was crucial to its holding at
numerous points.269 It reflected that residence, domicile, and allegiance were
requisites that the Citizenship Clause rested upon:
The foregoing considerations and authorities irresistibly lead us to these conclusions: The
fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth
within the territory, in the allegiance and under the protection of the country, including all
children here born of resident aliens, with the exceptions or qualifications (as old as the
rule itself) of children of foreign sovereigns or their ministers, or born on foreign public
ships, or of enemies within and during a hostile occupation of part of our territory, and
with the single additional exception of children of members of the Indian tribes owing
direct allegiance to their several tribes. The amendment, in clear words and in manifest
intent, includes the children born within the territory of the United States of all other
persons, of whatever race or color, domiciled within the United States. Every citizen or
subject of another country, while domiciled here, is within the allegiance and the
protection, and consequently subject to the jurisdiction, of the United States. His
allegiance to the United States is direct and immediate, and, although but local and
270
temporary, continuing only so long as he remains within our territory.
266. Political advocacy groups often conflate civil rights with political rights as a means to gain popular
support for a broad interpretation of the Citizenship Clause. Take for instance Eric Ward, National Field
Director for the Center for New Community, who writes that any restrictions as to who is subject to the
jurisdiction thereof would be the first time since the infamous three-fifths clause that the Constitution has
been written to restrict civil rights rather than expand them. Eric Ward, A New Nativism: Anti-Immigration
Politics and the Fourteenth Amendment, in MADE IN AMERICA, supra note 260, at 24, 27 (emphasis added).
This is a complete misstatement of the Fourteenth Amendment. Advocates like Ward also hope to garner
political support by referring to those that support the enforcement of immigration laws with negative terms
like anti-immigrant or nativist, yet, at the same time, says the use of the word illegal alien is a form of
hate speech. See id. at 2428 (referring to proponents of limiting birthright citizenship as anti-immigrant);
Eric Ward, Word Wars: Honesty vs. Hate in the Immigration Debate, DOUBLE STANDARD (June 13, 2010,
9:52
PM),
http://thedoublestandard.wordpress.com/2010/06/13/word-wars-honesty-vs-hate-in-theimmigration-debate/ (stating the use of illegal alien is a form of hate speech and referring to immigration
control supporters as anti-immigrant). Ward is not alone in advancing this hypocrisy in wordplay. Often
immigration law professors refer to proponents of enforcing immigration law with negative terms such as
anti-immigrant, yet claim the use of the term illegal alien as racist or hate speech. See Bill O. Hing, AntiImmigrant Laws Damage Arizonas Economy, IMMIGRATIONPROF BLOG (Sept. 18, 2011),
http://lawprofessors.typepad.com/immigration/2011/09/anti-immigrant-laws-damage-arizonas-economy.html
(referring to laws imposing immigration controls as anti-immigrant); Kevin R. Johnson, Aliens and the
U.S. Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. MIAMI INTER-AM. L. REV.
263, 27681 (1996) (criticizing the use of the phrase illegal alien); Kevin R. Johnson, How Georgias AntiImmigration Law Could Hurt the States (and the Nations) Economy, IMMIGRATION PROF BLOG (Oct. 4,
2011), http://lawprofessors.typepad.com/immigration/2011/10/release-how-georgias-anti-immigration-lawcould-hurt-the-states-and-the-nations-economy.html (also criticizing the use of the phrase illegal alien).
One cannot have it both ways.
267. United States v. Wong Kim Ark, 169 U.S. 649, 65253 (1898).
268. Id. at 67682.
269. The fact of legal residence and domicile was reiterated throughout the opinion. See id. at 653, 656,
666, 693, 69596, 700, 70405.
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[Vol. 51
While some commentators have read this language as vesting citizenship

in everyone present,271 such an interpretation is an idealistic reading at
best.272 Since the ratification of the Fourteenth Amendment, neither the
Supreme Court, nor any court for that matter, has ever heard a case
adjudicating citizenship from persons without the requisite temporary or local
allegiance to the United States, or lawful residence and domicile. The closest
the Court has ever come to defining any limitations on the Citizenship Clause
in recent times is Nguyen v. INS,273 but that case involved a person born
outside the territorial United States. At the same time, however, it is worth
noting that the Court in Nguyen recognized congressional plenary authority to
define the ties and allegiances of persons,274 a legislative determination that
has never been questioned in our Anglo-American tradition.275
Needless to say, the constitutionality of legislation excluding the
children of unlawful immigrants from U.S. citizenship remains unsettled as a
jurisprudential matter. If one follows the intent of the 1866 Civil Rights Act
and Citizenship Clause, there is a strong constitutional argument that such
children could be excluded because the parents have not personally subjected
themselves to the jurisdiction of the United States or acquired the requisite
temporary or local allegiance by complying with the immigration laws;
therefore, they have not maintained a lawful residence or domicile in
accordance with the law. The only questions remaining are whether such
legislation could ever come about, and any public policy concerns that must
be considered.
271. See Epps, supra note 5, at 33233; Ho, supra note 260, at 6, 1213; Lister, supra note 5, at 20506;
Magliocca, supra note 54, at 50709; Hiroshi Motomura, Immigration Outside the Law, 108 COLUM. L. REV.
2037, 209192 (2008); Cristina M. Rodriguez, The Citizenship Clause, Original Meaning, and the
Egalitarian Unity of the Fourteenth Amendment, 11 U. PA. J. CONST. L. 1363 (2009).
272. For some interpretations of Wong Kim Ark contemporaneous with the opinion that conflict with the
broad interpretation, see HENRY BRANNON, A TREATISE ON THE RIGHTS AND PRIVILEGES GUARANTEED BY
THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES 25 (1901).
Mere birth within our territory does not always make the child a citizen. He must be born under
the allegiance of the United States . . . within its jurisdiction. Such is the case with children of
aliens born here while their parents are traveling or only temporarily resident, or of foreign
ministers, consuls and attaches of foreign embassies. Such children are born within our territory,
and within our territorial jurisdiction, but not within the pale of allegiance to us, as when born they
are not subject to our laws.
Id. (citing Wong Kim Ark, 169 U.S. 682); see also Comment, 7 YALE L.J. 366, 367 (1898) (stating in the
United States the alien must be permanently domiciled, while in Great Britain birth during mere temporary
sojourn is sufficient to render the child a British subject.); John W. Judd, The XIV AmendmentIts History
and Evolution, 13 AM. LAW. 388, 389 (1905) (a child born in the United States of Chinese parents, who at
the time of this birth were subjects of the Emperor of China, but who have a permanent domicile and
residence in the United States . . . became at the time of his birth a citizen of the United States. Under this
holding . . . they should be permanently domiciled here); Marshall B. Woodworth, Who Are Citizens of the
United States? Wong Kim Ark CaseInterpretation of Citizenship Clause of Fourteenth Amendment, 32 AM.
L. REV. 554, 559 (1898) (The Fourteenth Amendment affirms the ancient and fundamental rule of
citizenship by birth within the territory, in the allegiance and under the protection of the country, including all
children here born of resident aliens . . . .).
273. 533 U.S. 53 (2001).
274. Id. at 67.
275. This unquestioned power may be coming to an end. In Flores-Villar v. United States, 130 S. Ct. 1878
(2011), the Court split 44 on whether Congress may prescribe different citizenship rules according to gender.
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253
VI. CENTERING THE POLITICAL DEBATE ON BIRTHRIGHT CITIZENSHIP AND

IMMIGRATION REFORM
As the historical record demonstrates, the Anglo-American tradition of
birthright or jus soli citizenship was never an absolute guarantee to all present
within the territorial United States.
The history of the Fourteenth
Amendmentpreceding, contemporaneous to, and following its ratification
provides significant guideposts to legislate persons born of unlawful
immigrant parents.276 The question that remains is whether it is in Americas
interest to do so. It is commonly proclaimed, We are a nation of
immigrants. At the same time, as President Barack Obama fittingly put it,
we are also a nation of laws.277
To begin, this Part neither endorses nor opposes the adoption of
legislation limiting birthright citizenship to the children of unlawful
immigrants. It merely seeks to guide the debate responsibly and provide a
discourse for public interest groups, policy makers, and legislators in
considering any legislation. At the same time, this section disagrees with
those that loosely claim that limiting birthright citizenship is a costly and
impossible task or that it cannot deter unlawful immigration, for much is left
unanswered. As with any legislative reform, a well-drafted and balanced
comprehensive scheme can be effective once put into practice.
In terms of Americas moral identity and conscious, the decision to
adopt any birthright citizenship legislation proves to be difficult, for America
is faced with finding a proper balance between maintaining its political
preservation and adhering with immigration tradition.278 Take for instance
the fact that the children of many unlawful immigrant families have spent
their entire life in the United States and individually maintain no moral,
276. For some commentary that disagrees with the constitutionality of birthright citizenship legislation, see
Berta Hernandez-Truyol & Justin Luna, Children and Immigration: International, Local, and Social
Responsibilities, 15 B.U. PUB. INT. L.J. 297, 30910 (2006) (stating birthright citizenship legislation is preempted
by the Fourteenth Amendment); Priscilla Huang, Anchor Babies, Over-Breeders, and the Population Bomb: The
Reemergence of Nativism and Population Control in Anti-Immigration Policies, 2 HARV. L. & POLY REV. 385,
40001 (2008) (stating birthright citizenship legislation is nativism and unconstitutional); Brooke Kirkland, Note,
Limiting the Application of Jus Soli: The Resulting Status of Undocumented Children in the United States, 12
BUFF. HUM. RTS. L. REV. 197, 19798, 20809 (2006) (stating birthright citizenship legislation would cause
statelessness in contradiction of the Fourteenth Amendment).
277. Transcript of Obamas Immigration Speech, WALL ST. J., July 1, 2010, available at
http://blogs.wsj.com/washwire/2010/07/01/transcript-of-obamas-immigration-speech/.
278. Id. (Our task then is to make our national laws actually workto shape a system that reflects our
values as a nation of laws and a nation of immigrants. And that means being honest about the problem, and
getting past the false debates that divide the country rather than bring it together.). For the Supreme Court
affirming the federal governments power over immigration as a means for national self-preservation, see United
States ex rel. Turner v. Williams, 194 U.S. 279, 290 (1904) (rested on the accepted principle of international
law, that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to
forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such
conditions as it may see fit to prescribe). See also Demore v. Kim, 538 U.S. 510, 52122 (2003); Reno v.
Flores, 507 U.S. 292, 30506 (1993); Kleindienst v. Mandel, 408 U.S. 753, 76566 (1972); Graham v.
Richardson, 403 U.S. 365, 377 (1971); Galvan v. Press, 347 U.S. 522, 530 (1954); Harisiades v. Shaughnessy,
342, U.S. 580, 58889 (1952); Chuoco Tiaco v. Forbes, 228 U.S. 549, 55657 (1913); Fong Yue Ting v. United
States, 149 U.S. 698, 705 (1893); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892).
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[Vol. 51
political, or personal allegiance to their parents nationality. Despite the

claims of an insular minority of radicals, the law currently prescribes that
these children are U.S. citizens, for, at the time of their birth, Congress never
purposefully nor intentionally excluded them from our national
jurisdiction.279 Yet, should future generations be excluded from U.S.
citizenship, how is America to handle a situation where the children have
never lived anywhere but on U.S. soil? Are we to return to the nineteenthcentury international norms of election citizenship in some form? Also, what
about international concerns in regard to statelessness? These are just some
of the difficult questions that any attempt at limiting birthright citizenship will
have to face.
Another hurdle that proponents have to face is the simple question: How
can such legislation ever come about? To date, congressional bills limiting
birthright citizenship to lawful residents have failed considerably,280 and
Congress has not succeeded in passing comprehensive immigration reform
since 1996.281 Indeed, interest in such legislation reached its peak following
the 2008 election,282 but it seems that neither Democrats nor Republicans can
come to any agreement on how to fix Americas outdated immigration
scheme as a whole.
Perhaps the answer lies in a compromise similar to that achieved in the
1986 Immigration Reform and Control Act (IRCA). When enacting
IRCAs comprehensive scheme, the political exchange was the establishment
of employer sanctions for amnesty.283 At that time, employer sanctions were
seen as the humane way to control Americas borders, for the belief was
unlawful immigrants would be deterred from migrating if they could not find
employment.284 Whether IRCAs comprehensive employer sanction scheme
has proved effective in preventing unlawful immigration is debatable.285
279. Currently, the United States Code merely restates the text of Fourteenth Amendment. See 8 U.S.C.
1401(a) (2006). While one may argue the children of unlawful immigrants are not subject to the jurisdiction
thereof, absent a live case or controversy denying U.S. citizenship to said persons, the courts cannot interfere. Thus,
birthright citizenship must be legally assumed to all persons unless statutorily excluded.
280. For some recent bills, see Birthright Citizenship Act of 2011, H.R. 140, 112th Cong. (2011);
Birthright Citizenship Act of 2011, S. 723, 112th Cong. (2011); Birthright Citizenship Act of 2009, H.R.
1868, 111th Cong. (2009). See also Devin Dwyer, Tea Party Senators Target Birthright Citizenship for
Immigrant Children, ABC NEWS (April 6, 2011), http://abcnews.go.com/Politics/illegal-immigrationrepublican-senators-target-birthright-citizenship-bill/story?id=13302328.
281. See The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104208, div. C, 110 Stat. 3009-546 (1996).
282. The 2009 attempt by Georgia Representative Nathan Deal, H.R. 1868, was able to gain ninety-five
co-sponsors. See H.R. 1868: Birthright Citizenship Act of 2009, GOVTRACK.US, http://www.govtrack.
us/congress/bills/111/hr1868 (last visited Apr. 14, 2012).
283. See Bill O. Hing, The Case for Amnesty, 3 STAN. J. C.R. & C.L. 233, 244 (2007).
284. Brief for Amicus Curiae Immigration Reform Law Institute in support of Respondents at 728,
Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011) (No. 09-115). For full disclosure, the history and
legal analysis of this amicus brief was that of this author. See id. at 41 n.11.
285. For some criticisms of IRCAs employer sanction scheme, see David Bacon & Bill Ong Hing, The
Rise and Fall of Employer Sanctions, 38 FORDHAM URB. L.J. 77 (2010) and Michael J. Wishnie, Prohibiting
the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. CHI. LEGAL F. 193 (2007).
2012]
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255
However, until politicians can devise a better deterrent to protect Americas

borders it is the system best suited,286 especially for the respective states in
light of the Supreme Court opinion in Chamber of Commerce v. Whiting.287
A similar compromise could take place to bridge the political gap on
immigration reform. The lure of another amnesty proposal for classes of
unlawful immigrants may provide the political incentive for adopting a
provision limiting birthright citizenship to legal permanent residents or some
other form of domiciled immigrants. The same exchange could also take
place for limiting congressional representation on comparable terms, thus
making both Sections 1 and 2 of the Fourteenth Amendment contingent on
lawful settlement.288
Still, the question that remains is the feasibility and effectiveness of such
legislation in deterring unlawful immigration and preserving our political
institutions. The difficulty in answering this question rests with the lack of a
healthy and objective discourse between the opposing sides. While
proponents have not fully thought out the implementation and effects of
birthright citizenship legislation, opponents reply with unsupported
generalizations and seek to characterize the debate as un-American.289
There is one opponent, however, who has thought about the potential
effects associated with curtailing birthright citizenshipMargaret Stock. For
those unfamiliar with Stocks work in this area, she has routinely writes and
advocates that limiting birthright citizenship would be difficult to implement,
too expensive, and a non-sensible solution to preventing unlawful
immigration.290 To responsibly guide the birthright citizenship debate, each
of her policy arguments must be taken in turn. First, to support the claim that
limiting birthright citizenship would be too difficult to implement, Stock
raises concerns about the complexities in determining derivative citizenship,
providing proof of U.S. citizenship or residency, and adjudicating claims
286. For some analysis supporting the use of employer sanctions and E-Verify as the means to improve
it, see Stephen A. Brown, Comment, Illegal Immigrants in the Workplace: Why Electronic Verification
Benefits Employers, 8 N.C. J.L. & TECH. 349 (2007) and Randall G. Shelley, Jr., If You Want Something Done
Right . . . : Chicanos Por La Causa v. Napolitano and the Return of Federalism to Immigration Law, 43
AKRON L. REV. 603 (2010).
287. In Chamber v. Commerce v. Whiting, the Supreme Court upheld a series of Arizona employment
laws that punished in-state employers that knowingly employed unlawful aliens. The highest punishment
was the loss of the employers business license, and the Court found this to fall within IRCAs statutory
scheme. See 131 S. Ct. 1968 (2011).
288. For a history and discussion, see generally Charles, supra note 13.
289. See supra note 266 and accompanying text for how opponents are guiding the debate. See also
Sara Catherine Barnhart, Note, Second Class Delivery: The Elimination of Birthright Citizenship as a Repeal
of The Pursuit of Happiness, 42 GA. L. REV. 525 (2008) (claiming that limiting birthright citizenship
violates the Declaration of Independence and is racist based); Katherine Pettit, Comment, Addressing the Call
for the Elimination of Birthright Citizenship in the United States: Constitutional and Pragmatic Reasons to
Keep Birthright Citizenship Intact, 15 TUL. J. INTL & COMP. L. 265, 28189 (2006) (giving pragmatic
reasons why birthright citizenship should not be limited).
290. See Margaret Stock, Policy Arguments in Favor of Retaining Americas Birthright Citizenship Law,
in MADE IN AMERICA, supra note 260, at 2934; Rawlins, supra note 185.
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[Vol. 51
effectively.291 Indeed, the implementation of any birthright citizenship

legislation will prove problematic should it merely exclude the children of
unlawful immigrant parents and nothing more. However, should such legislation
be accompanied with a number of amendments or an entire reform of the
immigration system, it may serve as an effective deterrent to unlawful
immigration, and preserve American political institutions as proponents desire.
The reality is that much remains unanswered as to whether curtailing birthright
citizenship would prove to be an effective policy.
The first hurdle that proponents must overcome is figuring out what will
serve as the documentary proof for the parents to prove either citizenship or legal
residency. According to Stock, this is a real issue of concern because state-issued
birth certificates currently serve as the basis for many federal databases.292 In
other words, she believes any change to the current practice of universal birthright
citizenship would require an overhaul of the federal system.293 This concern is
overstated. Any curtailment of birthright citizenship cannot have a retroactive
effect. All prior and future birth certificates could still serve their identification
purpose and provide presumptive proof of the parents citizenship, with passports
and other selected documents serving as presumptive proof of lawful residence.
Indeed requiring documentary proof will be somewhat of a burden to those
citizens that do not readily retain their birth certificates, but this is not an
unconstitutional or unreasonable burden.294 A birth certificate is a standard
document that every citizen should maintain for a number of reasons, and it is
hardly an impediment on their liberty to present one to a supervising authority.295
In terms of any alien privacy concerns, evidence of lawful presence is
already statutorily required, and it is difficult to argue that proof of lawful
residence impedes or inconveniences aliens any further than the federal code
already prescribes.296 Let us not forget that the federal government already has
291. Stock, in MADE IN AMERICA, supra note 260, at 3032.
NOTHING
COULD
292. Margaret
Stock, TheBE
CostFURTHER
to Americans and America of Ending Birthright Citizenship, NATL
F
OUND. FOR AM. POLY BRIEF, at 7 (Mar. 2012), available at http://www.nfap.com/pdf/NFAPPolicyBrief.
FROM
THE
TRUTH.
THIS
BirthrightCitizenship.March2012.pdf.
293. Id.
DOCUMENT
HAS ZERO
294. Parents-to-be are almost always aware of a pregnancy months before the birth of the child. Even if
UNDERSTANDING
OF EQUITY
the parents do not have their respective
birth certificates at the time of birth, they can obtain them in a
reasonable time to confirm citizenship.
AND295.
"OPERATION
OF LAW"
Take for instance the right to vote. Despite its recognition in the Fifteenth Amendment, the
Supreme Court found no constitutional impediment by requiring a valid state issued drivers license or
identity card to confirm ones identity at a polling place. See Crawford v. Marion Cnty. Election Bd., 553
U.S. 181, 204 (2008). For some scholarly discussions, see Spencer Overton, Voter Identification, 105 MICH.
L. REV. 631 (2007) and Frederic Charles Schaffer and Tova Andrea Wang, Is Everyone Else Doing It?:
Indianas Voter Identification Law in International Perspective, 3 HARV. L. & POLY REV. 397 (2009).
296. See 8 U.S.C. 1304(e) (2006).
Every alien, eighteen years of age and over, shall at all times carry with him and have in his
personal possession any certificate of alien registration or alien registration receipt card issued to
him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions
of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be
fined not to exceed $100 or be imprisoned not more than thirty days, or both.
Id.
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257
in place the E-Verify system297 and other federal databases, and perhaps these
systems could be upgraded or modified to handle any disputed claims of
lawful residence.298
What this brief documentary overview leaves out, however, is a system to
adjudicate citizenship denials or stateless persons. It is here that birthright
citizenship legislation would have to expand the federal judiciary or Board of
Immigration Appeals (which is already exhausted with claims) to handle the
potential influx of citizenship claims in a timely manner. Any legislation also
must provide exemptions if certain hardships can be shown. Situations where
the family shows a need for asylum or proof of statelessness are two such
exemptions. At the same time, the executive branch should be immediately
directed to take measures curbing potential statelessness.299 If the Department
of State exchanged international agreements and correspondence in the late
nineteenth century for this purpose, it is difficult to argue that it cannot be done
today or that treaties cannot be negotiated to prevent statelessness.300
Stocks second argument is that birthright citizenship legislation is
unfeasible because it would be too costly. When Stock first advanced her
economic costs argument in a 2009 article, she did not provide any concrete
economic data other than the individual costs associated with determining a
request for derivative citizenship (an individuals acquisition of citizenship by
virtue of familial relationship to a citizen), which is a separate statutory
scheme in itself.301 In a 2012 National Foundation for American Policy
Report, Stock supplemented her claims. First, she again claimed the costs
associated with derivative citizenship would presumably apply to any
birthright citizenship legislation.302 In doing so, she speculated each family
297. See 8 U.S.C. 1324a(d)(2); Department of Homeland Security Appropriations Act of 2010, Pub. L.
No. 111-83, 547, 123 Stat. 2177 (2009); Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009, Pub. L. No. 110-329, Div. A. 143, 122 Stat. 3580 (2008); Basic Pilot Program
Extension and Expansion Act of 2003, Pub. L. No. 108-156, 2, 117 Stat. 1944 (2003); Basic Pilot
Extension Act of 2001, Pub. L. No. 107-128, 2, 115 Stat. 2407 (2002).
298. As it stands today, the E-Verify system confirms the employment status of 98.3% of all
submissions in twenty-four hours. Only 0.3% of all inquiries need to be later confirmed. This is generally as
a result of input errors such as misspelled names or typos. See E-Verify Statistics and Reports, UNITED
STATES CITIZENSHIP AND IMMIGRATION SERVICES, http://www.uscis.gov/portal/site/uscis/menuitem.
eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=7c579589cdb76210VgnVCM100000b92ca60aRCRD&vg
nextchannel=7c579589cdb76210VgnVCM100000b92ca60aRCRD (last visited Apr. 14, 2011).
299. There is no substantiated evidence that statelessness was a general concern with the Fourteenth
Amendment, but it should be addressed in any legislation. For an argument that statelessness was allegedly a
concern, see Kirkland, supra note 276, at 19798, 20809.
300. See Opinions of the Heads of the Executive Departments, and Other Papers, Relating to
Expatriation, Naturalization, and Change of Allegiance, reprinted in PAPERS RELATING TO THE FOREIGN
RELATIONS OF THE UNITED STATES 1873, supra note 140, at 11791438.
301. See Stock, in MADE IN AMERICA, supra note 260, at 32. For legal summary of derivative
citizenship and the federal code, see Sungjee Lee, The Parent/Child Relationship: Derivative Citizenship
Through Parents, 16 J. CONTEMP. LEGAL ISSUES 43 (2007). As it stands today, Congress can apply different
derivative rules to men and women. See Flores-Villar v. United States, 536 F.3d 990 (9th Cir. 2008), affd
per curiam, 131 S. Ct. 2312 (2011); Nguyen v. INS, 533 U.S. 53 (2001); Miller v. Albright, 523 U.S. 420
(1998).
302. Stock, supra note 292, at 15 (We can estimate the cost of a change to the Citizenship Clause
because the U.S. government already does such parental status verifications for children born overseas to
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would have to pay between $1,200 to $1,600 dollars in government and legal
fees to prove their child is a U.S. citizen at birth.303 However, there is no
support that this legal scenario would be the case should a curtailment ever be
put in place. To be blunt, Stocks concerns and estimates are more
speculative than real because we do not know how any curtailment will be
policed or implemented.304
Second, Stock argues that upgrading the federal government databases to
handle birthright citizenship claims will cost the taxpayers roughly $2.7
billion a year.305 This estimate is not based on positive data or government
estimates because no study has ever been commissioned. Instead, her
estimate is based on the annual cost of other federal immigration databases
such as E-Verify and Secure Communities.306 Still, even assuming Stock is
correct in her estimate, few, if any, will disagree that there will be
administrative costs associated with curtailing birthright citizenship. This
holds true with the implementation of any legislation. The important policy
question moving forward is whether this actual cost is worth the economic,
social, and political benefits that the proponents claim. Stocks analysis does
not definitively answer this question. Indeed, she argues that any curtailment
will have a negative impact on total tax revenues,307 but those familiar with
immigration reform know that the tax benefits and burdens involving
unlawful immigration are hotly contested issues.308 What makes Stocks
claim even more troubling is that she has provided us with no actual data to
work with.309 This is important because there are conflicting reports as to the
American citizen parents. To obtain proof their child is a U.S. citizen, the parents are required to submit
forms and fees . . . . Currently USCIS charges $600 to check the parents documents and verify the
citizenship status of children born overseas to U.S. citizens, and a similar bureaucratic process will
presumably be required for U.S. born children if the Citizens Clause is changed.).
303. See id. at 1.
304. See id. at 15 (Assuming derivative citizenship rules will apply, we can calculate that changing the
Fourteenth Amendment will be roughly equivalent to a $600 baby tax on every child born in the United
Statesor as an alternative way of thinking about it, we can say that changing the Citizenship Clause will
have direct costs of about $2.4 billion per year. This estimate, of course, is just the bureaucratic costnot
the cost of hiring a lawyer who can help a person submit the documents to the bureaucracy, or the cost of
litigation and damages when the bureaucracy makes a mistake.).
305. Id. at 23 (The estimated cost to U.S. employers of operating the E-Verify system will be at least
$2.7 billion per year or more. It is conceivable that similar costs estimates would emerge in segments of the
federal bureaucracy needed to respond for verification involving four million babies every year.); see also
id. at 1315 (discussing how the previous estimate was calculated).
306. Id.
307. See id. at 1213 (The loss of all these citizens [born of unlawful alien parents] and their entry into
the shadow economy will also have a significant long term tax impact. As members of the underground
economy, these millions of young people will be paying less in federal, state, and local taxes than they would
if they were deemed to be citizens at birth. If they physically leave the United States, they will escape U.S.
tax obligations, which they would be unable to do if they were U.S. citizens at birth.).
308. For a study arguing that unlawful immigration burdens taxpayers more than it helps them, see Jack
Martin, The Fiscal Burden of Illegal Immigration on United States Taxpayers, FEDERATION FOR AMERICAN
IMMIGRATION REFORM (Feb. 2011), available at http://www.fairus.org/site/DocServer/USCostStudy_
2010.pdf?docID=4921.
309. See Stock, supra note 292, at 1213.
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259
cost of unlawful immigration on the U.S. taxpayer.310 Thus, until a detailed

and objective report (preferably compiled by the federal government) is
available, we may never know the true economic costs.
Stocks last policy argument is that limiting birthright citizenship
would neither deter nor prevent unlawful immigration. She argues, if
anything, such legislation would automatically make even more people
into illegal migrants.311 This argument may have some merit should
immigration reform solely rely on limiting birthright citizenship, but it
still needs to be explored further through governmental efforts. The fact
remains that we do not know what impact curtailing birthright citizenship
will have on deterring unlawful immigration, and we may never know
unless such legislation is implemented. This places the United States in a
rather difficult predicament.
Needless to say, the public policy arguments in favor of retaining
unequivocal birthright citizenship are not very strong, nor are the
arguments against it weak.312 Without concrete and transparent data,
the argument is somewhere in between the two extremes and has yet to be
properly weighed or considered. It is a debate in progress. The same
holds true for the argument that limiting birthright citizenship is unAmerican.313 The balance between our immigration heritage and
national sovereignty leaves legislators with some very difficult policy
decisions. Despite opponents claiming that preserving the United Statess
political integrity is at best a marginal case on policy grounds,314 we know
for certain that founding generation would vehemently disagree.315
To the Founders, political integrity and the consent of the governed
were the entire basis of our republican government,316 and determining who
it sought to govern was implicit in national sovereignty or what was dubbed
the greatest happiness of the greatest number.317 To reiterate the words of
John Marshall, arguing a case before Chief Justice John Jay and Associate
Justice James Iredell, every nation has a right to legislate over
foreigners.318 This power goes to the rights of all kinds.319 Lets just
hope when immigration reform is brought forward that Congress exercises
its power in a prudent manner, relying on objective and useful information.
310. See supra note 308.

311. Stock, in MADE IN AMERICA, supra note 260, at 33.
312. See id. at 34.
313. Id. at 33.
314. Id. at 32.
316. See generally Patrick J. Charles, Restoring Life, Liberty, and the Pursuit of Happiness in Our
Constitutional Jurisprudence: An Exercise in Legal History, 20 WM. & MARY BILL RTS. J. 457 (2011).
317. Id.at 472; Charles, supra note 24, at 95118.
318. IREDELL, supra note 27, at 10.
319. Id.
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VII. CONCLUSION
Upon its ratification in 1868, the Citizenship Clause sought to place
federal citizenship above state citizenship and overturn Dred Scott. At the
same time, the Citizenship Clause was the subject of confusion and
uncertainty as to who is subject to the jurisdiction thereof.320 Today that
debate continues as commentators pick and choose portions of our AngloAmerican tradition that support their respective stance, often breaking the
bands of historical elasticity in their pursuit. The historical record
contemporaneous with the Citizenship Clause demonstrates that its jus soli
guarantee was never absolute.321 There were legal justifications for limiting
birthright citizenship, including the tenets of allegiance, personal subjection,
and domicile. This understanding is consistent with the law of nations in the
eighteenth and nineteenth centuries in which every sovereign nation
maintained power over immigration and foreign affairs.322
In terms of our modern political discourse over birthright citizenship, the
debate is far from being objective or centered. Proponents of limiting
birthright citizenship have much to weigh and consider before implementing
any legislation. They should only adopt legislation because it is in Americas
best interest to do so as a political, social, and economic matter, not to
advance an agenda or to support xenophobic notions of immigration. At the
same time, opponents too need to do more than claim proponents are antiimmigrant or that such legislation is un-American.323 To characterize
proponents in this light is to practice the very hate that they claim to oppose,
and to delineate American political integrity as irrelevant. Instead, opponents
should focus on material evidence that limiting birthright citizenship will not
deter immigration and the fact that the costs associated are disproportionate.
Whether these costs are economic, social, or international, they must be
concrete, proven, and transparent to the American people. Speculating about
the costs is insufficient at any level, academic or political.
The reason the conclusion tells you that there will never be any
objectivity is because the dominating feature of citizenship is
"trust relations" and that CAN NEVER BE OBJECTIVE. This
author is clueless about "martial rule" and clueless about equity
jurisprudence as the centerpiece of each one determining the
relation with United States.
322. See supra notes 2362, 131135.
323. See supra note 266 and accompanying text; see also Michael Scaperlanda, Partial Membership:
Aliens and the Constitutional Community, 81 IOWA L. REV. 707, 711 (1996) (categorizing the issue in terms
of xenophobia and nativism).

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3.

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1. U.S. CONST. amend. XIV, 1.

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Amendment, excluding the children of Indians and foreign ministers.5 Take

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the original understanding of the Fourteenth Amendment, and whether it

21. See supra Part V.

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Undoubtedly, one of these national duties included plenary power over

29. Id. at column 1.

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allegiance in determining citizenship, either by birth or naturalization. It was

Unfortunately, transplanting Madisons views on naturalization does not

36. Id. at 180 (emphasis added).

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This fact is attested by the legal works of Hugo Grotius,42 William

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good of society.59 In other words, allegiance was a legal issue to be regulated

Alexander Hamilton came to a similar conclusion when debating federal

The historical question that remains is whether the Fourteenth Amendment

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Scholars have deduced different conclusions from Binghams definition.

69. See Epps, supra note 5, at 379.

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citizenship on domicile, allegiance, and being a member of the political

Here, Trumbull conditions birthright citizenship on the tenets of allegiance

See supra note 72.

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it may be that children born on our soil to temporary sojourners or representatives of

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More importantly, the content of the debates themselves reveals a similar

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It was at this juncture that Senator Howard proposed to add the

103. Id. at 2869.

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Similar to his statements on the 1866 Civil Rights Act,107 Trumbull

Certainly, this statement confirms that Johnson viewed the language of

107. See supra notes 7886 and accompanying text.

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