The plain meaning of "subject to the jurisdiction thereof" is that it includes everyone over whom the US exercises jurisdiction, and thus includes almost everyone who is physically present in the US. The exceptions were given by David Siegel, citing United States v. Wong Kim Ark (1898) and I won't repeat them here, in the interest of brevity.
Because some controversy remains (not in the courts, but in the "court of public opinion"), I will address the contrary viewpoints. It seems appropriate to begin with the dissenting opinion in that case itself.
In the first half of the dissent, Justice Fuller argues that because the United States rejected the British doctrine of perpetual allegiance, the United States must also have rejected jus soli. His argument goes something like this:
- The British thought of nationality as perpetual allegiance
- The Americans rejected perpetual allegiance, and therefore rejected the entire British way of thinking about nationality
- Therefore, the United States inherited neither jus soli nor jus sanguinis from Great Britain (which had both)
- Who, then are the "natural-born citizens" the founders referred to? They must have been referencing jus sanguinis, since that was widely accepted by the international community as the fundamental principle of nationality.
- The majority opinion is that the first clause of the 14th amendment is purely declaratory of the prior common law of jus soli that existed from the founding. The majority is wrong about the prior common law, so its reasoning cannot be sustained.
The majority opinion makes a contrary assertion, namely, that France also had jus soli at the time of the founding (and, like Britain, considered jus sanguinis to be a creature of the legislature, rather than the fundamental principle of nationality) and that "Holland, Denmark, and Portugal" had it still as of 1870. The majority opinion then concludes
There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.
Who is right? Well, the majority opinion cites cases from New York, Massachusetts, North Carolina, and Maryland in which state courts opined that, based on the common law, persons born in the state to alien parents are citizens. It therefore appears that the states followed jus soli. This seems to refute Fuller's argument that Americans had rejected jus soli. It certainly refutes his contention that jus sanguinis was the obviously understood foundational principle of nationality at the time of the founding. If the founders had felt that jus sanguinis was so obvious that they didn't even need to define "natural-born citizen", they could only have been egregiously mistaken.
Meanwhile, Fuller's dissent fails to cite any state court rulings in which a person born in the state to alien parents was adjudged to be an alien. It does mention the case of two Germans who were denied US passports:
Hausding was born in the United States, went to Europe, and, desiring to return, applied to the minister of the United States for a passport, which was refused on the ground that the applicant was born of Saxon subjects temporarily in the United States. Mr. Secretary Frelinghuysen wrote to Mr. Kasson, our minister:
You ask "Can one born a foreign subject, but within the United States, make the option after his majority, and while still living abroad, to adopt the citizenship of his birthplace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization." 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 operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which confers that character.
Greisser was born in the State of Ohio in 1867, his father being a German subject and domiciled in Germany, to which country the child returned. After quoting the act of 1866 and the Fourteenth Amendment, Mr. Secretary Bayard said:
Richard Greisser was no doubt born in the United States, but he was on his birth "subject to a foreign power," and "not subject to the jurisdiction of the United States." He was not, therefore, under the statute and the Constitution a citizen of the United States by birth, and it is not pretended that he has any other title to citizenship.
In the first case, Frelinghuysen mentions Sec. 1992 of the Revised Statutes, which referred to the first section of the Civil Rights Act of 1866. In the second case, Bayard appears to assume that the 14th amendment's grant of citizenship was coextensive with that of the Act, which had slightly different wording.
The majority opinion, on the other hand, assumes that even if the words "not subject to a foreign power" meant to exclude children born to alien parents, the wording "subject to the jurisdiction [of the United States]" in the 14th amendment could not be similarly interpreted. But Bayard's view is a common one among those who disagree with the majority opinion. Fuller also explicitly says that he agrees with this:
The act was passed and the amendment proposed by the same Congress, and it is not open to reasonable doubt that the words "subject to the jurisdiction thereof" in the amendment were used as synonymous with the words "and not subject to any foreign power" of the act.
Interestingly, both the majority opinion and the dissent agree on this point: that the 14th amendment meant to declare the citizenship of the same class of persons embraced by the first section of the Act. We will see later on that the 39th Congress felt the same way.
The cases of the children of German nationals mentioned by Fuller involved parents who were only in the United States temporarily. It is clear that with respect to this class of individuals, there were doubts as to their citizenship. On the other hand, the 39th Congress would have been surprised if what they were doing was to stop granting citizenship to the US-born children of white immigrants. They could not possibly have meant to do that, and throughout the history of the United States it was never seriously questioned that such individuals were natural-born citizens. In fact, later in the dissent, Fuller says
These considerations lead to the conclusion that the rule in respect of citizenship of the United States prior to the Fourteenth Amendment differed from the English common law rule in vital particulars, and, among others, in that it did not recognize allegiance as indelible, and in that it did recognize an essential difference between birth during temporary, and birth during permanent, residence. If children born in the United States were deemed presumptively and generally citizens, this was not so when they were born of aliens whose residence was merely temporary, either in fact or in point of law.
And:
In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.
Ultimately, Fuller's position is
- The US-born children of white immigrants are US citizens at birth
- The US-born children of white visitors or Asian immigrants are not US citizens at birth.
The distinction between the Germans, or other white immigrants, and the Chinese is based on the fact that, under both US law and Chinese law, and the treaties between the US and China, Chinese citizens were forbidden to become US citizens.
But I don't think that he gave a good explanation as to why ineligibility for naturalization of the parents equates to the children not being "subject to the jurisdiction" of the United States, while eligibility for naturalization of the parents equates to the children being subject to US jurisdiction (even if not actually naturalized). Sure, that might have been the outcome that some members of Congress desired; after all, they were not in any hurry to extend naturalization to Chinese or other Asian persons. But if they had meant that, then the way they actually wrote the 14th amendment is exceedingly strange.
Since there are no longer any categories of persons who are racially ineligible for naturalization, if we apply Fuller's dissent to the modern context, it would imply that the US-born children of lawful permanent residents would be US citizens, while if both parents were foreign visitors then their child would not be a US citizen. And, I assume, Fuller would hold that the children of two unlawfully present immigrants would not be US citizens either, since they would merely be persons who overstayed a temporary status, or, never having been lawfully admitted in the first place, would be akin to foreign nationals who have just arrived at Ellis Island. In contrast, under the majority opinion, there is no wiggle room: the US-born child of unlawfully present aliens must be treated the same way as if their parents had been lawful immigrants.
Because the majority opinion and the dissent both cite the debate in the 39th Congress, and reach opposite conclusions about the meaning of "subject to any foreign power" and "subject to the jurisdiction [of the United States]" were understood to mean, it's worth looking more closely into the debate.
On Jan 29, 1866, Sen. Trumbull introduced an amendment to S. No. 61, the bill that ultimately became the Civil Rights Act of 1866. (The word "amendment" from here on in will refer to Trumbull's amendment to the bill, not to the 14th amendment, which came a bit later.) The amendment was to insert the following:
all persons of African descent born in the United States are hereby declared to be citizens of the United States, and
The following day, Trumbull withdrew that amendment and introduced another:
all persons born in the United States, and not subject to any foreign Power, are hereby declared to be citizens of the United States, without distinction of color, and
Sen. Cowan asked Sen. Trumbull whether the amendment would give citizenship to the US-born children of "Chinese and Gypsies". Trumbull replied, "Undoubtedly." (And this was cited by the majority in Wong Kim Ark.) Evidently, Trumbull did not think that the bill, nor the prior common law, to exclude the children of aliens who were racially ineligible for naturalization. Cowan was strongly opposed to the first section of the bill: he felt (as the Taney court had) that the white settlers of the colonies had only chosen to admit other kinds of white people to citizenship; that allowing Asian persons to be US citizens would be disastrous because they were incapable of understanding republican government; and that the entire first section of the bill was unconstitutional. Evidently, Cowan didn't vote for the bill with the understanding that it would exclude some races; he opposed the bill because he understood that it would include all races.
On Feb 1, Trumbull reintroduced the amendment with the insertion of the words "excluding Indians not taxed" to add greater clarity as he had not intended for them to be included. He also reiterated that he believed that jus soli was already the law in the United States. The "Indians not taxed" language confused some senators, who wondered whether it meant that the citizenship of Indians is dependent on whether they own taxable property. Trumbull replied:
The Senator from Missouri assumes that there is a sort of property qualification to citizenship. Such is not the meaning of he provision. The Senator from Missouri and myself desire to arrive at the same point precisely, and 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 perhaps 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, and that that form would not answer. [...]
Remember, at this point we already know that Trumbull intended to include US-born children of all immigrants. Here, he makes it clear that an important objective is to exclude US-born children of foreign diplomats. However, his words here, taken in isolation, could conceivably be interpreted to mean:
- only the children of foreign diplomats are excluded, or
- the children of all foreign temporary visitors are excluded, as they don't owe allegiance to the US, and this also achieves the objective of avoiding forcing US citizenship upon the children of foreign diplomats.
And I'll even grant that the latter interpretation looks more likely, in isolation. That said, Trumbull makes it clear multiple times during the debate that he thinks of the amendment as being declaratory of the existing law, of codifying it so as to put it beyond all doubt that it applies to persons regardless of race. The existing law that was applied in the case of Lynch v. Clarke was that the US-born child of temporary visitors is a citizen, and the evidence from MA, NC, and MD mentioned by the majority opinion in Wong Kim Ark seems to confirm this. When we take this into consideration, it appears that Trumbull meant the first interpretation.
It's important to discuss the concept of "allegiance" here, because as we can see, Trumbull himself believes that those who are native-born citizens are exactly those who are born owing permanent allegiance to the United States. ("Permanent" here means "not temporary"; it doesn't mean "perpetual", since, as we know, Americans believed in the right of expatriation, and even the British were already moving away from perpetual allegiance.) In the modern era, those who believe that the US-born children of foreign temporary visitors are not US citizens base their argument mostly on the concept of "allegiance", that those children don't owe permanent allegiance to the United States, and that the word "jurisdiction" in the 14th amendment is synonymous with allegiance. [1] Note, however, that this argument is circular. In order to know whether the child is a US citizen, you need to know whether they owe permanent allegiance to the US; but at the same time, it's the fact of their US citizenship that makes them owe permanent allegiance to the US; so where is the starting point?
The Civil Rights Act of 1866 and the 14th amendment clearly frame the logical causation as flowing in one direction: you determine whether the child has permanent allegiance to the US first and if they do, then they're a US citizen. But how do you determine whether the child has permanent allegiance to the US before you know whether they're a citizen? And actually, that comes down to unwritten principles (or at least, they were unwritten at the time), which is what makes this tricky. According to the majority opinion in Wong Kim Ark, it was understood that permanent allegiance is to the place of birth; in effect, that when people went to England and give birth here, their choice to do so was giving consent to make their child owe permanent allegiance to the kingdom, and so, too, was that the case in the United States, and only foreign diplomats are promised that their children are exempt from this. While according to the dissent, the child's permanent allegiance is that of its parents, regardless of place of birth. But I agree with the majority opinion that the change to the "jurisdiction" wording in the 14th amendment removes all doubt. More on this later.
The bill passed the Senate on the following day, February 2. It was passed by the House on March 13. On March 27, it was vetoed by President Andrew Johnson. In Johnson's veto message, he wrote
By the first section of the bill, all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is by the bill made a citizen of the United States [...]
This was also evidence cited by the majority in Wong Kim Ark.
On April 4, the Senate reconsidered the bill. Trumbull reiterated that he "and many others" believed "that all native-born persons since the abolition of slavery were citizens of the United States" and that he considered the act to be "declaratory" of this matter. The veto was overridden by the Senate on April 6. On April 7, the House took up reconsideration of the bill and Rep. Lawrence of Ohio also stated that he thought that the citizenship clause of the bill was "only declaratory of what is the law without it". The House overrode the veto on April 9 and the Civil Rights Act of 1866 became law.
Meanwhile, the House had already begun to consider various proposals for the next constitutional amendment. (From this point onward "amendment" will mean constitutional amendment.) The ideas contained therein would ultimately be combined into a single amendment. On May 10, the House passed, by the requisite two-thirds majority, a version of the combined amendment very similar to the final version, but it was missing the citizenship clause in section 1. On May 23, the Senate proceeded to consider the proposed amendment that had passed the House. Sen. Wade pointed out that the amemdment used the word "citizen" but did not define it; he stated his view that "every person, or whatever race or color, who was born within the United States was a citizen of the United States" but acknowledged that another set of people, at another time, might think otherwise. He proposed to amend the amendment so that it would explicitly say that it applied to persons born in the United States or naturalized under the laws thereof. Sen. Fessenden asked:
Suppose a person is born here of parents from abroad temporarily in this country.
Wade replied:
The Senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside "near" the United States, in the diplomatic language. By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States, although born in Washginton. I agree to that, but my answer to the suggestion is that that is a simple matter, for it could hardly be applicable to more than two or three or four persons; and it would be best not to alter the law for that case. [...]
It is apparent that Sen. Wade believed that the only exception (to the common law, which had been codified by the Act of 1866) was for the children of foreign diplomats, and not any other children of persons residing temporarily in the United States.
On May 30, Sen. Howard moved to insert the following language, which is very similar to the final version of the Citizenship Clause: "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."
I quote Howard at length here because this part of the debate is often quoted by proponents of minority viewpoints:
I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. 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 ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
Much ink has been spilled on the meaning of the bolded text (emphasis mine). Some say that Howard was describing one class of persons in three different ways. Others say that Howard was describing three classes of persons. Let us first observe what Howard did not say. He did not say that the children of foreigners and aliens would be excluded; as I've repeatedly emphasized, absolutely no one thought that the US-born children of white immigrants, not yet naturalized, would be aliens. What he actually said was a truism: that persons born in the United States who are foreigners are not United States citizens. (The concept of a dual citizen wouldn't have made sense at the time.) But who are those persons? Well, the families of ambassadors or foreign ministers, he says. He was describing one class of persons. If he had been describing three classes of persons, not only would it not support the minority viewpoints of the 14th amendment, but it wouldn't have been coherent at all.
Howard's reference to "natural law" makes it evident that he, like Trumbull, believed that jus soli was the fundamental principle of nationality, not only in the United States but also internationally. The allegiance owed by a person to the country of their birth trumps any jus sanguinis allegiance they may owe to their parents' country. A child born in the United States to foreign nationals may be treated, when present in that foreign country, as being of its nationality, should that country choose to recognize jus sanguinis in addition to jus soli; and their choice to do so could not derogate from the person's superior allegiance to the country that they have been present in from the moment of their birth.
Sen. Cowan reiterated his opposition to bestowing citizenship upon the children of Chinese immigrants. Sen. Conness spoke in support of the amendment, sharing in the understanding that it would apply to the US-born children of Chinese immigrants.
Sen. Doolittle proposed an amendment to Howard's amendment because he felt that the language proposed by Howard would include all Indians born within the territorial limits of the United States, an outcome that had not been intended. Here again is where it gets interesting. Sen. Trumbull said:
Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. 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 the Senator from Wisconsin peretend to say that the Navajoe 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 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, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get control of those people.
I want to pause for a moment here because the bolded sentences in the quoted excerpt are also frequently cited by proponents of minority viewpoints. Trumbull felt that the Navajo did not meet the test of "not owing allegiance to anybody else" and were not subject to the complete jurisdiction of the United States; and, therefore, they would not be citizens under the proposed amendment. But if you quote only the bolded sentences, you take his words out of context, and make it look like the children of foreign nationals are not "subject to the complete jurisdiction" of the United States because they owe allegiance to their parents' country. But that is not what Trumbull is referring to; he's referring to the fact that the Indian reservations were akin to separate nations within the United States, and that the Navajo was principally subject to tribal jurisdiction and not the laws of the United States.
Trumbull said later in the same speech:
[...] Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens [...]
This appears to support the majority point of view: those persons who are completely subject to US laws are within US jurisdiction. And some of the Native Americans at the time were not; but all children of foreign nationals, while present in the United States, were; the children of foreign diplomats being excepted, and no others.
Sen. Johnson pointed out that it was not true that Congress could control the Indians only by treaty and not by legislation. Trumbull replied that such legislation was "done under special provision" and that "We propose to make citizens of those brought under our jurisdiction in that way". Johnson wanted to insert the words "Indians not taxed", as had been done in the Act of 1866. Trumbull said that his thinking on that terminology had changed; he had originally understood taxed Indians to mean "civilized" Indians, but now felt that it was better to remove all doubt. He felt that the "subject to the jurisdiction" wording was a better way of saying the same thing.
Sen. Howard agreed with Trumbull:
I concur entirely with the honorable Senator from Illinois, in holding that the word "jurisdiction", as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. [...] The Indian who is still connected by his tribal relation with the government of his tribe is subject for crimes committed against the laws or usages of the tribe to the tribe itself, and not to any foreign or other tribunal. I believe that has been the uniform course of decision on that subject. The United States courts have no power to punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe.
Fessenden replied, "Within the territory." Howard replied:
Yes, sir. Why? Because the jurisdiction of the nation intervenes and ousts what would otherwise be a right of jurisdiction of the United States. [...]
It's evident from the debate that Indians were a narrow exception to the "jurisdiction" requirement. Children of foreign nationals, born and present in the United States, have no "intervening" jurisdiction; they are fully subject to the jurisdiction of the federal and state governments, again with the children of foreign diplomats being the only exception. The majority opinion in Wong Kim Ark says as much, quoting an earlier case in which it is said that "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute".
The Senate passed the proposed amendment, with Howard's amendment to insert the Citizenship Clause (and apparently also with a further amendment to mention naturalized persons) on June 8, 1866 and this version would ultimately become the 14th amendment on July 27, 1868.
One final note: Section 1 of the 14th amendment uses the word "jurisdiction" a second time, in the Equal Protection Clause, and there, it plainly means the legal jurisdiction of a state over persons in its territory; it is difficult to imagine that it did not mean the same thing in the Citizenship Clause.
Taking the totality of evidence into account, the majority got it right in Wong Kim Ark, and those who seek to overrule that interpretation, even just to exclude children of unlawfully present immigrants, bear a heavy burden.
