Before the adoption of the Fourteenth Amendment, citizens of the states were automatically considered citizens of the United States. In 1857, the Dred Scott v. Sandford decision had held that no black of African descent (free or slave) could be a citizen of the United States. The Fourteenth Amendment was thus necessary to overturn Dred Scott and to settle the question of the citizenship of the newly freed slaves. The Fourteenth Amendment made United States citizenship primary and state citizenship derivative. The primacy of federal citizenship made it impossible for states to prevent former slaves from becoming United States citizens by withholding state citizenship. States could no longer bar any black from United States citizenship or from state citizenship either. The primacy of federal citizenship thus extended “the privileges or immunities” of United States citizenship to the newly freed slaves.

When first introduced, the Fourteenth Amendment stated, “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.” Senator Benjamin Wade of Ohio suggested that a definition of United States citizenship was necessary and proposed that the first sentence of Section 1 should read, “No State shall make or enforce any law which shall abridge the privileges or immunities of persons born in the United States or naturalized by the laws thereof.” The final version of section one that emerged from the Joint Committee on Reconstruction accepted Wade’s suggestion but added the “jurisdiction” clause. Thus, there were two requirements for citizenship: born or naturalized in the United States and “subject to the jurisdiction” of the United States.

Today, we understand the Citizenship Clause as if the Wade proposal had been accepted without the jurisdiction clause, and assume that everyone born within the territorial limits of the United States is automatically subject to the jurisdiction of the United States and thus automatically a citizen of the United States. This renders the “jurisdiction” requirement superfluous, despite a principle of construction that no interpretation can render any provision without force or effect. If the framers of the Fourteenth Amendment had intended that everyone born within the geographical limits of the United States were automatically subject to its jurisdiction, they would simply have omitted this phrase and accepted Wade’s proposal without it.

Hence the key question is what does it mean to be “subject to the jurisdiction” of the United States? Debate has focused on three groups of persons: Native Americans, children born in the United States of foreign diplomats, and children born in the United States of unnaturalized aliens.

Senator Jacob Howard of Michigan was a member of the Joint Committee on Reconstruction and a strong supporter of the Citizenship Clause. During Senate debate, he defended his handiwork against the charge that it would make Native Americans citizens of the United States.

“Indians born within the limits of the United States, and who maintain their tribal relations,” he assured a skeptical Senate on May 30, 1866, “are not, in the sense of this amendment, born subject to the jurisdiction of the United States.” Senator Lyman Trumbull of Illinois, chairman of the Senate Judiciary Committee, supported Howard, contending that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else . . . subject to the complete jurisdiction of the United States.” Indians, he concluded, were not “subject to the jurisdiction” of the United States because they owed allegiance—even if only partial allegiance—to their tribes.

The United States has “treaties” with various Indian tribes and the Supreme Court has treated Indians as having a unique constitutional status. The Court treated Indian tribes as “dependent sovereigns” within the United States, and “domestic dependent nations.” Cherokee Nation v. Georgia (1831). “Their relations to the United States resemble that of a ward to his guardian.” Hence, an Indian born in the United States who was a member of a recognized Indian tribe within the United States was not considered “subject to the jurisdiction” of the United States but to the jurisdiction of his tribe. Elk v. Wilkins (1884).

Beginning in 1870, Congress began extending offers of citizenship to various Indian tribes. Any member of a specified tribe could become an American citizen if he so desired. The Indian Citizenship Act of 1924 granted full U.S. citizenship to American Indians. 8 U.S.C. § 1401(b).

Senator Howard also argued that the requirement of “jurisdiction,” understood in the sense of “allegiance,” would not include certain types of aliens, that is, it will not “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.” Senator Howard’s view regarding the children of foreign diplomats has been confirmed subsequently by the Supreme Court. Diplomatic immunity is only the other side of the coin that a foreign diplomat does not owe his allegiance to the United States.

The most contested issue is the status of children born in the United States of aliens residing here. Commentators supporting the notion of “birth right citizenship” for such persons point primarily to British practice, manifested in the common law, and supported by the Supreme Court in United States v. Wong Kim Ark (1898).

Birthright citizenship had been the basis of British citizenship (i.e., being a British “subject”) ever since it was first articulated in Calvin’s Case in 1608. Sir William Blackstone, in his Commentaries on the Laws of England (1765–1769), had argued that the idea of birthright citizenship was an inheritance from the “foedal system”— it derives from the “mutual trust or confidence subsisting between the lord and vassal.” “Natural allegiance,” says Blackstone, is “due from all men born within the king’s dominion immediately upon their birth. [It] is a debt of gratitude which cannot be forfeited, cancelled, or altered, by any change of time, place or circumstance. . . . [T]he natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another put off or discharge his natural allegiance.”

In 1898, the Supreme Court in United States v. Wong Kim Ark, Justice Horace Gray, writing for a five-to-four majority, agreed with Blackstone’s view and held that a child born in the United States of alien parents of Chinese descent became, at the time of his birth, a citizen of the United States by virtue of Clause 1 of the Fourteenth Amendment. The alien parents were subjects of the emperor of China, but the parents had a permanent domicile and residence in the United States. They were carrying on business in the United States and were not employed in any diplomatic or official capacity under the emperor of China. Justice Gray conceded that children of an invading army would not become citizens, but the parents in Wong Kim Ark were not here illegally. (The United States did not have the complex immigration laws that we have today, with its concept of illegal or undocumented aliens.)

Subsequent courts have simply assumed that the any child born within the United States is automatically a U.S. citizen. E.g., INS v. Rios-Pineda (1985), dicta referring to the respondent and his wife, who illegally entered the U.S. By the time of his deportation, “respondent wife had given birth to a child, who, born in the United States, was a citizen of this country.” However, there is also no case where the Supreme Court has explicitly held that birthright citizenship for the children of illegal aliens is the unambiguous command of the Fourteenth Amendment. It is hard to conclude that the framers of the Fourteenth Amendment intended to confer citizenship on the children of aliens illegally present when they explicitly denied that boon to Native Americans legally present but subject to a foreign jurisdiction.

Commentators contesting the notion of automatic “birthright citizenship” for children of aliens find highly significant Senator Howard’s contention 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.” Most contemporary observers would have understood “natural law” to refer to the social compact basis of citizenship, grounded in consent and adumbrated in the Declaration of Independence. Neither Calvin’s Case nor Blackstone ever used the word “citizen.” It remained for the Declaration to transform subjects into citizens by the requirement that republican government rest on the active consent of the governed.

In A Summary View of the Rights of British America (1774), Thomas Jefferson argued that it was a natural right possessed by all men to leave the country where “chance and not choice” had placed them. The notion of a natural right to expatriation is incongruent with a scheme of an indefeasible birthright citizenship. In 1868, the Reconstruction Congress passed an Expatriation Act that provided, in pertinent part, that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” Senator Howard was an enthusiastic supporter of the bill, describing the right of expatriation as the necessary counterpart of citizenship based on consent. During debate, commentators frequently described Blackstone’s view of birthright citizenship as an “indefensible feudal doctrine of indefeasible allegiance” that was incompatible with republican government. One member remarked that “the old feudal doctrine stated by Blackstone and adopted as part of the common law of England . . . is not only at war with our institutions, but is equally at war with every principle of justice and of sound public law.” By this argument, consent-based citizenship repudiated Blackstone’s common law view.

Moreover, in Elk v. Wilkins, the Supreme Court decided that an Indian who had renounced allegiance to his tribe did not become “subject to the jurisdiction” of the United States by virtue of the renunciation. “The alien and dependent condition of the members of the Indian Tribes could not be put off at their own will, without the action or assent of the United States” signified either by treaty or legislation. Neither the “Indian Tribes” nor “individual members of those Tribes,” no more than “other foreigners,” can “become citizens of their own will.” In the frequently cited case of United States v. Wong Kim Ark, Chief Justice Melville Fuller in dissent argued that birthright citizenship had been repealed by the principles of the American Revolution and rejected by the framers of the Fourteenth Amendment.

When Congress began extending offers of citizenship to various Indian tribes, it permitted any member of a specified tribe to become an American citizen if he so desired. Congress thus demonstrated that, using its Section 5 powers to enforce the provisions of the Fourteenth Amendment, it could define who was properly within the jurisdiction of the United States. Based on the intent of the framers of the Fourteenth Amendment, some believe that Congress could exercise its Section 5 powers to prevent the children of illegal aliens from automatically becoming citizens of the United States. An effort in 1997 failed in the face of intense political opposition from immigrant rights groups. Apparently, the question remains open to the determination of the political and legal processes.