Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment's Citizenship Clause

Abstract

The Fourteenth Amendment Citizenship Clause establishes two conditions for natural born citizenship. First, the person must be born in the United States. Second, the person must be born “subject to the jurisdiction” of the United States. The current debate over the original meaning of the so-called Birthright Citizenship Clause generally divides between those that claim birth on American soil is sufficient to establish citizenship with only a limited and closed set of historical exceptions, and those that read the jurisdiction clause as containing an independent principle capable of contemporary application. 

 

This essay adopts the latter view but does so in manner that gives primary consideration to the first condition, birth in the United States. As articulated by Attorney General Edward Bates in his influential 1862 Report “On Citizenship,” prima facie citizenship treats birth in the United States as establishing a presumption of citizenship. That presumption may be overcome, however, by positive evidence that the child was born into a familial context of refused or counter-allegiance to the United States. In such cases, it cannot reasonably be said that the child was born subject to the jurisdiction of the United States as that phrase was understood in 1868.

 

Although, the framers of the Fourteenth Amendment emphasized the need to establish a race-neutral definition of birth citizenship, they also understood the need to exclude those persons born into families that either refused allegiance or held a counter-allegiance to the United States. After months of debating the appropriate conditions of citizenship, they drafted a clause requiring persons to be born in, and subject to the jurisdiction of, the United States. The first condition involves place, the second involves personal allegiance. As framer Lyman Trumbull explained, “what do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means.” 

 

As originally understood, the allegiance requirement looked to the status of the child’s parents and excluded children born to parents bearing allegiance to a foreign government (including quasi-foreign Indian tribes). Expressly excluded were children born in the United States to tribal members who lived in the United States without authorization and refused allegiance to either a tribal government or the United States. An analogous situation today involves children born to non-citizen parents who intentionally enter the United States without legal authorization. Such parents cannot reasonably be viewed as having placed themselves “subject to the jurisdiction” of the United States, defeating what would otherwise be a child’s prima facie case of natural born citizenship.