Birthright Citizenship

By Randy E. Barnett and Ilan Wurman

Since the publication of our opinion piece on birthright citizenship in the New York Times (“Trump Might Have a Case on Birthright Citizenship“), we have received numerous critiques, some quite thoughtful (others less so), both in this and other venues. In this short essay we recapitulate and elaborate upon the argument of our initial piece, emphasizing especially the parts that are responsive to the criticisms. None of the objections has convinced us that we erred. 

The Common-Law Default

The aim of our NYT op-ed was principally to establish the actual common law rule of birthright subjectship and subsequently birthright citizenship. As readers will know, the questions with which we are confronted today—those involving illegal immigration or temporary sojourning, the latter represented in its most concerning form by those who temporarily visit for the specific purpose of having a child in the United States—were not prominent issues at the time the common law rule developed. Nor has the Supreme Court addressed either issue: in Wong Kim Ark, the Court held that a child born here of domiciled, permanent residents was a birthright citizen.

Thus, we make two overarching points. First, whether the common law rule would have applied to either group can only be determined by understanding the actual principle and operation of the rule and extrapolating it to these situations. Second, we presume, as the Supreme Court has, that the Fourteenth Amendment’s language “subject to the jurisdiction” of the United States was intended to encapsulate the rule, whatever it was. It is of course possible that the language was intended to, or simply does as a matter of original meaning, extend or restrict the common law rule. One can therefore disagree with us on any of these points: One can disagree with our characterization of the common law; or with our application of its rule to modern-day questions; or with the presumption that the language of the amendment tracks that rule as opposed to doing something else.

What we emphatically reject is that the meaning of the word “jurisdiction” is somehow plain or obvious. The Supreme Court has famously said that jurisdiction is a word of many meanings. It appears to us that the members of the 39th Congress would have agreed. And, to reiterate, in Wong Kim Ark the Supreme Court presumed that jurisdiction referred to the common law allegiance-for-protection view that we elaborate in our initial piece and further below.

As a methodological matter, we think the original public meaning of the text is what matters. We say more about this below. And if it incorporated the common law rule, the actual content of that historical rule is what matters. But to the extent either is ambiguous as applied to the modern-day questions, the interpretation of either, as Madison once said, can also be “triable by its consequences.”

We find it particularly puzzling that opponents of our position, many of whom would normally object to following original meaning, in this case insist on following a particularly feudalistic and archaic conception of subjectship. In our view, the best understanding of the common law rule does not require such feudalistic applications today. At a minimum, how the rule would apply to present circumstances is ambiguous, in which case the feudalistic and archaic conceptions should also be avoided.

We also emphatically reject, however, the claim that the framers of the amendments intended to adopt something other than birthright citizenship. We reject the claim that some scholars have made that the framers were adopting “jus sanguinis,” or citizenship by blood, according to which only the parents’ citizenship determined one’s own status (aside from naturalization). What we do claim, however, is that the status of the parents mattered for jus soli too. That is, we aim to show that even under the birthright rule, the status of the parents mattered. The parents could, indeed, be aliens. We therefore think Wong Kim Ark was rightly decided. But it was not enough merely to be an alien physically present. The exceptions to the rule show this to be the case.

The Puzzles of the Conventional View

One central issue that justifies our exploration of the common law rule is that the standard view of “subject to the jurisdiction” creates a series of puzzles. It is known that certain groups were excluded from birthright citizenship: the children born to (1) ambassadors, (2) Native Americans subject to tribal authority, (3) members of invading armies, and (4) foreigners on foreign vessels in U.S. waters. There is also some reason to think other “nontaxed” Native Americans—those not subject to tribal authority, but who nevertheless had not assimilated—were also excluded.

The question then becomes why they were excluded.

As noted in the New York Times piece, the standard view of the phrase “subject to the jurisdiction” is that it means subject to U.S. law or sovereignty. But this creates some puzzles. For example, it cannot explain the status of children born to loyal Americans in enemy-occupied territory. They are not subject to U.S. law or sovereignty nor do they receive the protection of the United States. (We do not understand how Ilya Somin could say otherwise.) Yet as the Supreme Court said in the Inglis case, they were presumed to be citizens upon reconquest. Conversely, it is obviously true that foreigners on foreign vessels in U.S. waters are subject both to U.S. protection in at least some sense, as well as the application of U.S. law. Numerous state and federal laws are applicable. And yet children born to foreigners on those vessels are not automatic citizens.

Other puzzles abound, about which we are less confident. As noted, at least from the discussions over the Civil Rights Act of 1866, it seems to have been presumed that there was a class of Native Americans on American soil, not subject to tribal authority, but over whom the U.S. had never taken jurisdiction. If they were excluded from birthright citizenship, the traditional rule cannot explain that, either. They were on U.S. soil and neither loyal to, nor under the control of, any tribe.

One thing these exceptions also confirm is this: the status of the parents matters. Whether the child of an ambassador is subject to U.S. law, or U.S. sovereignty, or is under U.S. protection, has everything to do with the parents’ status. As Sir Edward Coke wrote in the 1608 decision in Calvin’s Case: “[U]nless it be in special cases,” there are “regularly . . . three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King’s dominion. And, 3. The time of his birth . . . .”

We are thus somewhat puzzled by the critics who have asserted that the social compact theory of allegiance-for-protection, which we advance instead of the conventional reading of jurisdiction, cannot apply to newborns whose status must depend entirely on the soil on which they were born. This objection overlooks the obvious point that all the acknowledged exceptions to the natural-born-citizens default rule are based on the status of a child’s parents.

In our view—as we explained in the New York Times, and elaborate below—the relevant status is that the parents enter into the social compact and thereby receive the protection of the laws not only for themselves but also for any children they may have within the U.S. And from this allegiance of the parents to the United States, coupled with the protection their children receive, flows the status of birthright citizenship of their children.

Originalist Methodology

Before we continue on to the merits, i.e., our view of the common law rule, we first address whether our approach is even consistent with originalism. We think one of the weakest criticisms of our piece was that our approach was inconsistent with originalist methodology. Part of this stems from the need to omit this paragraph on methodology due to space and the fact that the Times editors found it too “professory” (though to be clear, we thought the editing process greatly strengthened the piece overall):

First a word about methodology. As originalists, we are gratified that, by and large, the first instinct of virtually all commentators—even nonoriginalists—has been to seek the original meaning of these words. We are public meaning originalists who maintain that this question should be answered by how the public would have understood them. If the public would have recognized them as a legal term of art, then we look to the then-established meaning of these terms within the legal community. If there was no consensus among either the public or legal authorities about the meaning of the “letter” of the text, then we must seek the meaning that would best serve its “spirit,” by which we mean the functions, ends, objects, or purposes for which the provision was adopted.

(For how originalism incorporates both the letter and the spirit of the text, as one of us has written, see here.) 

In another omitted passage we explained that the term “jurisdiction” is ambiguous in the context of citizenship. It could mean persons who are subject to the power of the government or it could mean persons who are members of the social compact. We find this phrase ambiguous for a number of reasons, but particularly because the conventional reading creates the inexplicable anomalies described above. As we then explained in another omitted passage:

When deciding which of two senses is being used, context is especially important. Both of us are public meaning originalists who maintain that the meaning of the Constitution’s text should be gathered from how the public would have understood the words at the time they were written. The legal concepts underlying the amendment and its purposes were well known and help to establish the most likely meaning of this phrase.

All this is, of course, perfectly “originalist.” It is not unusual for nonoriginalists—especially those who scorn originalism—to be unaware of its nuances.

Yet, one of the striking things about this debate is how originalist it is. It seems that nonoriginalists love original meaning when they think it is on their side. But nonoriginalists do not always understand how the original meaning is identified. Above all, the original meaning is not the “plain” or “literal” meaning of the text, but is the communicative content of the words in context. And contrary to the familiar refrain by nonoriginalists that originalism fails to yield determinate answers, defenders of the conventional wisdom are adamant that they know the one true original meaning, and that there can be no ambiguity here.

Allegiance-for-Protection

Now to our central claim on the merits of the common law rule of birthright citizenship: it was not nearly as ascriptive as commonly claimed. There is a large degree of ascription to the rule: because one is born under the protection of the king, the king affords that child protection in his or her infancy. That child, in turn, owed a perpetual allegiance to the king as a debt of gratitude for that protection in infancy. Of course, the common law rule evolved in at least some ways by 1868. For example, Americans are not subjects, but citizens, and the obedience demanded is not to a person, but to the laws. The rule of perpetual allegiance was also widely discarded in the nineteenth century, for obvious reasons.

Our central point is that, notwithstanding the ascriptive elements of the common law rule, the rule itself could be traced back to the social compact. By this we do not mean an express contract (which is why we are using “compact” rather than “contract”), nor do we mean that the compact itself implied citizenship. By social compact, we mean only the theoretical agreement at the root of civil society as distinguished from a state of nature. The social compact is more familiar in its Lockean form: we exit the state of nature and give up our own executive power and agree to be bound by the sovereign (allegiance) in exchange for the benefit of that sovereign’s laws, and the sovereign’s protection against the private violence and private interference with rights endemic in the state of nature.

Contrary to some criticisms we have received, we do not claim that the common law rule as enunciated by Coke in Calvin’s Case adopted social compact theory in Lockean terms. It would be anachronistic to say so. But social compact theory existed and was widely discussed before John Locke, and by others besides Locke.

Although this part of the argument did not make it into the New York Times essay, Coke traced the protection-followed-by-allegiance argument back to the initial social compact. If anything came first, allegiance did; but more probably, the two arose from the natural law together. Coke wrote that “magistracy and government” follow from the law of nature and that “ligeance, faith, and obedience of the subject to the Sovereign” existed “before any municipal or judicial laws” because it would have been “in vain to have prescribed laws to any but to such as owed obedience, faith, and ligeance before.” Coke later on concluded that “ligeance and obedience” is “due by the law of nature,” and that “protection and government [are] due by the law of nature.” We do not think it much matters which came first, allegiance or protection; the point is rather that both are due by the law of nature because of the original social compact.

Whatever one thinks of Coke’s reasoning in this regard, aliens who came to the country, and who had not received protection from the king in their infancy, more directly enter into a social compact. Aliens who came in amity, Coke said, receive a “local” protection while in the lands and must therefore give a local obedience or allegiance to the sovereign. This exchange is immediate. It hardly matters whether protection or allegiance comes first; the exchange is simultaneous.

What we argued in our New York Times essay is that it is only because of this compact between the alien and the sovereign that birthright subjectship applied to the alien’s child. Part of protection owed to the alien parent is protection for any of their children born in the realm. It was that protection of the child in infancy that in turn created an obligation of perpetual allegiance to the sovereign on the part of the child (which by the nineteenth century could be disclaimed by the child when the child reached the age of majority).

Coke said as follows about the local allegiance and protection of an alien: “[this] local obedience being but momentary and uncertain, is yet strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject; a fortiori he that is born under the natural and absolute ligeance of the King . . . ought to be a natural born subject.” It is here that Coke then explains why invading armies are excepted: because “It is not cœlum nec solum”—neither the climate nor soil—that makes a subject, but rather being born “under the ligeance of a subject” and “under the protection of the King.” 

Of course, Coke was not thinking about illegal migration, so it’s hard to say exactly how he would have applied this rule to the modern situation. But it seems to us that what Coke is saying is that the local allegiance of the alien is sufficiently strong to create the right of protection for the child, which protection will in turn demand the child’s (defeasible) future allegiance.

The right of the child to protection thus hinges on the alien parent having given a local obedience—that is, on having entered into the social compact with the sovereign. Otherwise, both the child and the alien parents would have to find protection elsewhere, from some other government—namely, the government from which the parents came.

Application of the Rule

If our understanding of the theory of allegiance-for-protection, or protection-then-allegiance, is correct, then it is hardly obvious how it would have applied to persons coming into the realm in violation of the laws and against the wishes of the polity as expressed in its laws. As we noted in our New York Times essay, one cannot give allegiance and a promise to obey the laws through an act of defiance of those laws—most especially when one is consciously aware that the polity has not consented to one’s admission thereto.

Even today, persons who enter illegally can often be summarily removed, especially if caught soon after entry. There is no reason such summary removal would not apply to the child, too. To the contrary, neither the parent nor child is entitled to protection from this government in the relevant sense. They must look to the government from which they came for the protection the law of nature requires for all within the social compact.

This account is far more coherent than the conventional wisdom’s emphasis on power and sovereignty. The previously mentioned exceptions suggest not only that the excluded groups did not enter into the social compact, they demonstrate that allegiance matters more than protection. Consider Americans in enemy-occupied territory. Their children literally do not receive protection from the United States government. And yet it was presumed they would be natural-born citizens after reconquest. The reason is that their allegiance is what mattered (together with their presence on U.S. soil), and the fact that the government owed them protection, even if it could not deliver that protection de facto. Conversely, the children of ambassadors of course enjoy a “local” protection here. But they are not citizens because their allegiance is to their parents’ nation.

Or consider children born on foreign vessels. They are subject to U.S. law and sovereignty locally and temporarily, but obviously did not enter into the social compact here. Their allegiance is to another sovereign, and the ultimate protection for the child must come from that sovereign. The excluded groups of Native Americans “not taxed” on American soil, even if outside the control of a tribe, also hadn’t entered into the social compact.

More generally, the sovereignty account suffers from a more absurd defect that gets to the root of today’s debate over immigration. The writers on the law of nations universally agreed that sovereignty included the right to exclude from one’s territory. It included, in other words, the right to decide which foreigners shall become a member of the society, whether on a temporary or permanent basis. What a republic based on popular sovereignty has decided on the matter will be dictated by its laws.

To say that children born to persons who illegally enter in violation of the nation’s sovereignty must be citizens because the nation is exercising the powers of sovereignty over them is a fatal contradiction and absurdity. Of course, the nation is exercising a kind of sovereignty in the sense it can subject them or their parents to some degree of domestic law. But the nation is not exercising sovereignty in any meaningful sense because one of the core rights of sovereignty—to control who enters the territory—is by definition being violated.

Are the Freed People Citizens?

One of the more perplexing criticisms we have received is that under our account of the common law rule, the freed people would not be citizens. Obviously, as we recognized in our New York Times essay, the central purpose of the amendment was to extend citizenship to the freed people. If our understanding of the rule fails to account for that, then that understanding cannot be right.

But our account of the rule does extend birthright citizenship to the newly freed people. To reiterate, by social compact, we do not mean the explicit consent from both parties to citizenship as would be required for a contract between private parties. We mean that allegiance of some kind has been exchanged for protection, remedying the defects of the state of nature. Any child born to someone who had entered into that kind of social compact with America would be a citizen.

The newly freed people obviously qualify. In our view, enslaved persons brought here against their will were not afforded protection of the law. But obedience and ligeance were demanded of them nonetheless. It was a failure on America’s part that it did not provide the protection that it owed in return for that allegiance. Certainly the free African Americans of the period were given protection in exchange for allegiance. One way or another, at some point, they or their children would have become citizens. The same is true of the newly freed people just prior to the adoption of the Fourteenth Amendment.

It may not be unworthy of mention that we think this a sufficient response to Paul Finkelman’s famous article. He argues that there was illegal immigration in the period, namely violations of the prohibition on the Atlantic slave trade. Allegiance and obedience were demanded even of the enslaved persons who were brought into this country against their will and in the violation of its laws. Nor did they knowingly violate the laws of the country when entering; any such violation was committed not by them but by their kidnappers, or what was then called “man stealers.”

A nation that fails to prevent such violations of natural right surely owes such individuals protection. This is entirely, and it seems to us quite obviously, different than the situation in which someone willingly comes into the country in knowing violation of the laws governing their entry and presence.

Did We Misread Bates?

As we noted, we presume that the language of the fourteenth amendment was intended to codify the default common law rule defining birthright citizenship. To that end, we stressed the lengthy and detailed 1862 opinion of Attorney General Edward Bates. Bates’ opinion reflected the mainstream view of Republicans in Congress and elsewhere. Our limited point was that the existing debate about birthright citizenship had overlooked this important underlying concept of allegiance and protection, which we tried to show was itself rooted in notions of social compact. 

One of our critics, Jed Shugarman, who considers himself to be an originalist, claimed that Bates’s opinion contradicts our view:

The bottom line is that their essay backfires, because their main source for their supposed “allegiance-for-protection theory” is a single sentence from Lincoln’s Attorney General Edward Bates in 1862), but just a few paragraphs later, Bates clearly endorsed birthright citizenship as “universal principle, common to all nations and as old as political society,” and “a historical and political truth so old and so universally accepted that it is needless to prove it by authority.”

But Shugarman misunderstands our intervention. We are not disputing “birthright citizenship” as the rule. Far from it, we reject those who do. Rather, we are identifying the scope of the birthright citizenship rule itself. As Bates put the matter:

I have said that, prima facie, every person in this country is born a citizen; and that he who denies it in individual cases assumes the burden of stating the exception to the general rule, and proving the fact which works the disfranchisement. . . .

(We thank Kurt Lash for bringing this facet of Bates’ approach to our attention. Space constraints prevented us from mentioning the concept of “prima facie citizenship” in our op-ed. Lash will be elaborating on his understanding of this concept in future work, a preview of which is here.)

Bates, of course, does not address the specific question of whether persons unlawfully present in the U.S. fall within the exception or the rule. Our claim is that the conception of the social compact to receive protection in return for obedience to the laws invoked by Bates, which constitutes “allegiance” in a republic, (a) informed the original meaning of “jurisdiction”; (b) helps us to resolve the ambiguity of “jurisdiction”; and (c) explains, not only the exceptions, but other anomalies that are raised by the “power of the state” conception of “jurisdiction,” which has dominated the discourse. 

Bates’ opinion is key evidence that the allegiance-for-protection view of birthright citizenship was a core underlying principle that was held by Republicans and made known to the public. We deny, however, that this view was entirely ascriptive. Our whole argument was that the notion of social compact played more into the idea of birthright citizenship than is traditionally believed. 

What About Congress’s Statutes?

Although criticism on Blue Sky has been rather unserious, some scholars have made important points. Sherrilyn Ifill, for example, as well as Marty Lederman and Steve Vladek in other forums, have quite sensibly pointed to various congressional statutes that seem to treat aliens who came here unlawfully as falling within the birthright citizenship rule. We take no position on that, and certainly agree that Congress could also extend jurisdiction in the relevant sense over additional groups, and could certainly use its naturalization power. To the extent such laws have been enacted, an executive order that violates them would be improper. We were concerned in our piece with the nature and scope of the default rule, about which the conventional wisdom is overconfident in its understanding. 

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Source: https://reason.com/volokh/2025/02/18/birthright-citizenship/