Is the 14th Amendment misconstrued on birthright citizenship?

Here’s the crux of the dispute. The text of the Fourteenth Amendment’s Citizenship Clause provides that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” That text has two requirements:

1) Birth on U.S. soil; and 2) Being subject to the jurisdiction of the United States when born. In recent decades, the opinion has taken root, quite erroneously, that anyone born in the United States (except the children of ambassadors) is necessarily subject to its jurisdiction because everyone has to comply with our laws while physically present within our borders. Those who drafted and ratified the Fourteenth Amendment had a different understanding of jurisdiction. For them, a person could be subject to the jurisdiction of a sovereign nation in two very different ways: the one, partial and territorial; the other full and complete. Think of it this way. When a tourist from Great Britain visits the United States, he subjects himself to our “territorial jurisdiction.” He has to follow our laws while he is here, including our traffic laws that require him to drive on the right rather than the wrong (I mean left!) side of the road. He is no longer subject to those laws when he returns home, of course, and he was never subject to the broader jurisdiction that requires from him allegiance to the United States. He can’t be drafted into our army, for example, or prosecuted for treason for taking up arms against us.
So which of the two understandings of jurisdiction did the drafters and ratifiers of the Citizenship Clause have in mind? Happily, we do not need to speculate about that, as the drafters of the Fourteenth Amendment were quite explicit when asked this very question. Senator Lyman Trumbell, a key figure in the drafting and adoption of the Amendment, stated that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.” And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction” requirement as applied under the 1866 Civil Rights Act, which afforded citizenship to “all persons born in the United States and not subject to any foreign power.” Although the subsequent ratification debates are not very comprehensive, one thing is quite clear: Everyone understood that the Fourteenth Amendment was at least designed to constitutionalize the 1866 Civil Rights Act, with the birthright citizenship caveat that one not be “subject to any foreign power.”

The first couple of Supreme Court cases to address the Citizenship Clause agreed with this interpretation. In The Slaughter-House Cases, which were decided in 1872, the Court noted (albeit in dicta) that “[t]he phrase, ‘subject to the jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” The Court was unanimous on this point. That interpretation was also the Supreme Court’s holding in the 1884 case of Elk v. Wilkins, in which a Native American who had been born on a reservation within the United States and later renounced his tribal allegiance claimed the benefits of birthright citizenship because he was subject to the jurisdiction of the United States through his tribe, which was a dependent sovereign. The Court rejected the claim, holding that the Citizenship Clause required that one be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” The great constitutional law treatise writer of the era, Thomas Cooley, summarized the position this way: “subject to the jurisdiction” of the United States “meant . . . full and complete jurisdiction to which citizens [are generally] subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

That’s the history.