Jurisdiction and Citizenship

Abstract

A recent executive order denying birthright citizenship to children born to persons temporarily visiting or unlawfully present in the United States has reignited debate over the original meaning of the Fourteenth Amendment’s Citizenship Clause. The historical evidence is more nuanced than advocates on either side have long assumed. The clause appears to have required the parents of a child born to be subject to the complete municipal jurisdiction of the United States. If the law of nations applied, or if there was an international law exception to the exercise of a legislative or judicial jurisdiction over a foreigner within the territory, then any child born would not have been subject to the jurisdiction of the United States in the relevant sense. 

One condition precedent to the applicability of an ordinary, municipal jurisdiction was that the alien parents be under the protection and within the allegiance of the sovereign. Some evidence further suggests that this condition required a mutual compact between alien and sovereign. This international law framework explains not only the birthright citizenship exceptions for ambassadors and armies, who were subject to the law of nations, but also jurisdictional rules relating to alien enemies, distressed vessels, Native American tribes, consular jurisdiction, and postliminy, which do not tightly fit territorial accounts of jurisdiction. It may also explain why commentators and executive branch officials thought domicile relevant to claims of birthright citizenship. This account is not the only possible reading of the evidence and is not without its questions. Yet it provides a powerful explanatory framework that fits much of that evidence without some of the problems of more conventional accounts.