The American Regime and the Meaning of Citizenship

The controversy over birthright citizenship is usually framed as a dispute over a single sentence in the 14th Amendment. Does its Citizenship Clause constitutionalize the English common-law rule that virtually everyone born within a sovereign’s territory is a citizen? Or does “subject to the jurisdiction” require something more—complete political jurisdiction and allegiance to the United States?

Important as that question is, it is not the most fundamental one. Before asking what the 14th Amendment means, we should ask what kind of political community the Constitution presupposes.

The Declaration of Independence announced two propositions that have shaped American constitutionalism ever since. The first is celebrated everywhere: all men are created equal, and governments derive “their just powers from the consent of the governed.” The second receives much less attention: one people may “dissolve the political bands” connecting them with another and assume a “separate and equal station” among the nations of the earth. Those principles are complementary. Human equality explains why legitimate government requires consent, and the right of a people to dissolve its political bonds identifies the political community capable of giving that consent. That distinction goes to the heart of the current citizenship debate.

The Revolution Against Subjectship

Before 1776, Americans were subjects of the British Crown. Under the English doctrine of perpetual allegiance, political membership derived principally from birth within the king’s dominions. As William Blackstone put it, natural allegiance was owed by all persons born within the king’s dominions and was a debt that could not be canceled by any subsequent change in circumstance.

Modern defenders of universal birthright citizenship often begin there, noting that English common law recognized a broad rule of jus soli that Americans inherited. But that argument overlooks the most important event in American constitutional history: the American Revolution.

The Declaration did not merely complain that George III had governed badly, but rejected the political theory upon which perpetual allegiance rested. Governments derive their legitimate authority from consent, the Declaration proclaimed, and a people may alter or abolish a government that violates the purposes for which government was instituted. It then made the consequences explicit: the American people were “absolved from all allegiance to the British Crown.” That proposition cannot easily be reconciled with a doctrine holding that allegiance imposed at birth is perpetual and irrevocable.

The Revolution therefore changed more than America’s political institutions—it changed the source of political obligation. Under the old English conception, one was a subject because one was born under the king’s protection. Under the new American conception, legitimate political authority ultimately rested upon the consent of a sovereign people.

The Constitution reflected that transformation. It begins, after all, with “We the People of the United States.” The people do not derive their existence from the government; the government derives its authority from them. This helps explain why the original Constitution contained no comprehensive definition of citizenship. The Framers believed they were acting on behalf of a people, not creating one ex nihilo.

The Naturalization Clause reinforces the point. Congress is empowered to establish a uniform rule by which foreigners may become citizens. That authority presupposes the political community’s power to determine the conditions for admitting new members. Early American practice reflected this understanding: naturalization required residence, an oath of allegiance, and renunciation of prior political obligations. Americans also increasingly rejected the English doctrine that natural allegiance could never be renounced. If government rests upon consent, it follows that political allegiance cannot literally be perpetual.

By the Civil War, America had developed a distinctly republican understanding of citizenship. Sovereignty rested in the people rather than a monarch. Citizenship meant membership in that sovereign political community, with both rights and reciprocal obligations.

Reconstruction Restored the Founding

The great constitutional rupture was Dred Scott v. Sandford.

Chief Justice Roger Taney held that an entire class of people born in America could never be citizens because persons of African descent had supposedly been excluded from “We the People” who established the Constitution. That account of the founding was historically false. Free blacks were citizens in several states and participated in the political community when the Constitution was adopted.

The Civil Rights Act of 1866 and the 14th Amendment repudiated Dred Scott. But they did so within the existing American constitutional tradition rather than by replacing it with English notions of subjectship.

The Civil Rights Act declared: “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.” Those words did two things simultaneously. They overturned Dred Scott by establishing that birth in America could confer national citizenship regardless of race. They also rejected the proposition that territorial birth alone was sufficient in every circumstance. Citizenship required that the person not be “subject to any foreign power.”

When Congress moved to constitutionalize that principle in the 14th Amendment, it used slightly different language: “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.” The congressional debates make clear that “jurisdiction” meant more than being physically present and therefore subject to American law. Senator Lyman Trumbull described it as “not owing allegiance to anybody else.” Senator Jacob Howard likewise explained that the language excluded persons who remained politically attached to another sovereign. That is why members of sovereign Indian tribes, children of foreign diplomats, and other citizens or subjects of foreign nations were understood to fall outside the clause. Territorial presence and political jurisdiction were not the same thing.

The 39th Congress was correcting one of the gravest errors in American constitutional history. The newly freed slaves were citizens because Dred Scott had wrongly excluded them from the political community to which they properly belonged.

The 14th Amendment was therefore revolutionary in consequence but conservative in constitutional purpose. It secured citizenship for millions of Americans whom Dred Scott had wrongly excluded while preserving the founders’ conception of citizenship as membership in a self-governing political community.

How Wong Kim Ark Changed the Question

Three decades later, the Supreme Court’s decision in United States v. Wong Kim Ark muddied the waters.

Wong was born in San Francisco to Chinese parents who were legally and permanently domiciled in the United States but could not themselves become citizens under then-existing federal law. The Court held that Wong was a citizen by birth.

Justice Horace Gray’s majority opinion, however, took a consequential turn. Instead of beginning with the American Revolution, the Declaration, and the Reconstruction debates, Gray devoted much of his analysis to English common law, including Calvin’s Case, Coke, and Blackstone. Justice Gray effectively reversed the founders’ approach, treating English jus soli as the starting point and then asking whether American law had displaced it.

The revolutionaries asked which inherited English doctrines remained compatible with a republic founded upon consent. Wong Kim Ark instead assumed the continuing authority of English subjectship principles unless American law clearly displaced them.

Moreover, the Wong case presented a much narrower question than the one involved in today’s controversy. His parents were lawfully and permanently domiciled in the United States. They had established their home here and lived under American law. The Supreme Court could therefore have concluded that their permanent attachment to this country placed their American-born child within U.S. political jurisdiction without establishing a universal rule for children born to tourists, temporary visitors, or persons unlawfully present.

Yet the broader language of Wong Kim Ark gradually eclipsed its narrower facts. What began as a case involving the child of permanently domiciled legal residents came to stand for the much broader proposition that territorial birth alone generally creates constitutional citizenship.

Trump v. Barbara and First Principles

In Trump v. Barbara, the Court’s majority largely treated Wong Kim Ark and subsequent cases as having settled the constitutional question. Stability and respect for precedent are undoubtedly important, but precedent cannot substitute for constitutional meaning, particularly when its historical premises are disputed.

Justice Clarence Thomas’s dissent returned to the antecedent question: What did “subject to the jurisdiction” actually mean when the 14th Amendment was adopted? His analysis examined allegiance, sovereignty, and political jurisdiction rather than simply assuming that later judicial language accurately captured the original meaning.

Justice Samuel Alito likewise challenged the assumption that being subject to American law is equivalent to being “subject to the jurisdiction” of the United States for purposes of citizenship. Foreign diplomats, invading soldiers, and members of sovereign Indian tribes were all in some sense subject to American territorial authority, yet the Reconstruction Congress plainly understood political jurisdiction to mean something more.

Justice Brett Kavanaugh’s separate opinion raises another important point: judges do not need to resolve every question surrounding citizenship. Congress retains substantial authority to legislate within the constitutional framework.

Abraham Lincoln understood the distinction. He accepted the binding force of judicial judgments on the parties before the Court while rejecting the proposition that a single Supreme Court decision decided the Constitution’s meaning for the entire nation. “If the policy of the Government upon vital questions affecting the whole people,” Lincoln warned in his First Inaugural Address, “is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.” That was not an attack on judicial review but a defense of constitutional self-government.

Members of Congress and presidents take oaths to support the Constitution, too. Within the spheres entrusted to them, they have an obligation to exercise constitutional judgment rather than treat every judicial dictum as the last word on questions the Constitution leaves to the political branches.

Citizenship and Self-Government

The debate over birthright citizenship therefore involves something deeper than immigration policy. It concerns the equal right of “one people” to constitute itself as an independent political community. The Constitution was ordained by that people. The 14th Amendment secured citizenship for those whom Dred Scott had wrongly excluded from that political community.

The question is whether those constitutional landmarks also stripped the American people of authority to determine the conditions of membership in their own political community.

If citizenship is simply the automatic consequence of territorial birth—a rule inherited from English subjectship—then Americans possess remarkably little authority over the composition of their own political community. Membership becomes primarily an accident of geography. But if the Revolution replaced subjectship with republican citizenship—if political membership ultimately rests upon allegiance to a sovereign people governing itself through constitutional institutions—then the constitutional question is quite different.

The American Revolution established not only a new nation but also a new understanding of political membership. It rejected hereditary subjectship and embraced the principle that governments derive “their just powers from the consent of the governed.” The 14th Amendment completed that constitutional tradition rather than repudiating it. It guaranteed citizenship to the freed slaves whom Dred Scott had wrongly excluded while preserving a constitutional order that presupposed a sovereign people capable of determining the membership in its political community.

Whether the Supreme Court has correctly understood that inheritance remains a legitimate subject of constitutional debate. A republic committed to self-government should not fear having it.