Birthright Citizenship and Allegiance

Birthright citizenship is controlled by the Fourteenth Amendment’s Citizenship Clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” Everyone agrees that “subject to the jurisdiction thereof” excludes children born to Native Americans who had not renounced tribal loyalty or received citizenship through treaties and the common law exceptions of children born to foreign diplomats or invading armies. Donald Trump’s Executive Order “Protecting the Meaning and Value of American Citizenship” controversially adds two more exceptions: children born to mothers not legally in the country and children born to mothers only temporarily present with, in both cases, fathers who are neither US citizens nor permanent residents.[1]

Civil-War-era scholars Martha S. Jones and Kate Masur weighed in on the controversy with an amicus brief supporting the challenge to the order in Trump v. Barbara.[2] Their brief compellingly documents antebellum Black Americans’ expansive sense of citizenship, especially when Dred Scott’s denied them US citizenship. But because Trump agrees that the Citizenship Clause was primarily intended to invalidate that aspect of Dred Scott, the amicus brief’s most important contribution for the controversy is to reiterate Gerald Epps’ argument that the Citizenship Clause allows no more exceptions.[3]

Nonetheless, Trump’s Solicitor General suggests another way that attention to the Civil War era undermines Trump’s allegedly originalist interpretation when he makes allegiance the decisive issue by claiming that framers of the Fourteenth Amendment linked the words “subject to the jurisdiction thereof” to a display of allegiance, which the two excluded classes lack because they cannot establish legal domicile in the country. The Citizenship Clause, he writes, “extends citizenship only to those who are ‘completely subject’ to the United States’ ‘political jurisdiction’—in other words, to people who owe ‘direct and immediate allegiance’ to the Nation and may claim its protection.”[4]

As Trump’s opponents note, that argument is problematic because the Fourteenth Amendment mentions neither “allegiance” nor “domicile.” But history raises a more fundamental problem: the framers of the amendment were concerned about allegiance, but not that of immigrants or those temporarily in the country. When the Fourteenth Amendment was proposed in 1866 the framers had to deal with Confederates who had renounced their allegiance to the nation. Indeed, in early 1866 President Andrew Johnson had not yet declared the Confederates’ insurrection over, and Section 3 of the amendment imposed disabilities on Confederates who explicitly broke their oaths to the Constitution. Yet the language of the Citizenship Clause did not deny citizenship to children born to Confederates as they waged war. Even Confederates who renounced allegiance were subject to US jurisdiction.

If the framers had wanted to incorporate “allegiance” into the Fourteenth Amendment, they had a model. Francis Lieber, a German immigrant who authored Abraham Lincoln’s war code, proposed an amendment declaring that every citizen “owes plenary allegiance to the government of the United States, and is entitled to, and shall receive, its full protection at home and abroad.”[5] Lieber’s target was Confederates who chose allegiance to their states over the nation. Rather than draw on the language of allegiance, however, Section 1 of the Fourteenth Amendment limits the power of states by prohibiting them from denying the privileges and immunities of US citizenship or from denying any persons (not citizens) the due process of law or the equal protection of the laws within their jurisdiction. The citizenship clause was added to the amendment after those provisions were approved. Its use of “jurisdiction” was designed to be consistent with the Equal Protection clause, which covers “any person”—legal or not, temporary or not–within a state’s “jurisdiction.” Indeed, if, as Trump’s Solicitor General claims, “jurisdiction” meant “political jurisdiction,” the Equal Protection clause would support Confederates’ argument that people within a state’s jurisdiction owe it political allegiance.

The concern about Confederates’ allegiance when the Fourteenth Amendment was proposed points to an irony thirty-two years later when the Supreme Court finally gave the Citizenship Clause its definitive interpretation. The case was US v. Wong Kim Ark (1898), which involved the son of Chinese parents born in San Francisco in 1873. In 1895 Wong Kim Ark temporarily left the country to visit China, but on his return the government refused him entry, claiming that he was not a citizen because, like his parents, he was a subject of China. A six-justice majority ruled in Wong Kim Ark’s favor. Both sides in today’s controversy agree that Wong Kim Ark was rightly decided, but Trump claims that Wong Kim Ark was granted citizenship only because his parents were legally domiciled in the country, whereas Trump’s opponents argue that the question of domicile is irrelevant. What neither side notes is that Solicitor General Holmes Conrad, an ex-Confederate, argued the government’s case against Wong Kim Ark.[6]

Holmes Conrad, Confederate Officer, ca. 1864, Virginia Military Institute Archives Photograph Collection

 

Conrad’s brief described Reconstruction as “that unhappy period of rabid rage and malevolent zeal when corrupt ignorance and debauched patriotism held high carnival in the halls of Congress.” After questioning the Fourteenth Amendment because southern states were forced to ratify it to regain representation in Congress, he argued that, because citizens are the people who compose a community, race and culture prohibited Chinese from displaying allegiance to the US. Wong Kim Ark’s lawyers, one of whom was the son of William Evarts who unsuccessfully prosecuted treason against Jefferson Davis, countered by quoting the racial egalitarian Charles Sumner. “Here is the great charter of every human being, drawing vital breath upon this soil, whatever may be his condition and whoever may be his parents. He may be poor, weak, humble or black—he may be Caucasian, Jewish, Indian, or Ethiopian race—he may be of French, German, English, or Irish extraction; but before the Constitution all of those distinctions disappear. . . He is one of the children of the State, which like an impartial parent, regards all of its offspring with equal care.”[7] Likewise, the framers of the citizenship clause refused to punish the children of traitors, like Conrad, for the sins of their fathers. To preserve the meaning and value of American citizenship it is important to follow the framers’ lead.

[1] Executive Order 14610 “Protecting the Meaning and Value of American Citizenship.” Fed. Reg. 8449 (January 20, 2025).

[2] “Brief of Historians Martha S. Jones and Kate Masur as Amici Curiae in Support of Respondents,” Trump v. Barbara, ET AL.

[3] Garrett Epps, “The Citizenship Clause: A Legislative History,” American University Law Review 60 (2010): 331-

[4] “Brief for the Petitioners,” Trump v. Barbara, ET.AL., 2. The Solicitor General’s citations are from the Native American case of Elk v, Wilkins 112 US 94 (1884), 102.

[5] Francis Lieber, Amendments of the Constitution, Submitted to the Consideration of the American People (New York: Loyal Publication Society, 1865).

[6] The government’s case was also argued by San Francisco law professor William Collins, who claimed that Chinese could not be domiciled in the US because they “are utterly unfit, wholly incompetent to exercise the important privileges of an American citizen.”  In his own attempt to protect the meaning and value of American citizenship, Collins referred to the Roman emperor Caracalla who for purposes of taxation extended Roman citizenship to all free people in the empire, thus extinguishing the “pride of country and the observance of national honor which characterized the Roman citizen.” After denouncing the inherent immorality of Chinese, Collins was later convicted of bigamy and perjury. George D. Collins, “Are Persons Born within the United States Ipso Facto Citizens Thereof?” American Law Review 29 (1884): 831-38.

[7] Lucy E. Salyer, “Wong Kim Ark: The Contest over Birthright Citizenship,” Immigration Stories, eds. David A. Martin and Peter Schuck (New York: Foundation Press, 2005), 70-71, 73.