Decoding the Fourteenth Amendment's Citizenship Clause: Unlawful Immigrants, Allegiance, Personal Subjection, and the Law

Abstract

The purpose of this article is to decode the jus soli principles of the Fourteenth Amendment’s Citizenship Clause. It seeks to examine the legal tenets of birthright citizenship in the late nineteenth century, and concludes the Citizenship Clause is not an absolute command, and may be supplemented by legislation dependent on the tenets of allegiance, personal subjection, and international norms. From the 1866 Civil Rights Act through the Supreme Court’s decision in United States v. Wong Kim Ark, this article will trace the legal tenets of birthright citizenship as a means to better understand the Citizenship Clause.

Part I of this article discusses birthright citizenship from the founding era to its ratification in the Fourteenth Amendment. Part II discusses the first attempt to legislate who was 'subject to the jurisdiction' of the United States, and its importance in understanding the constitutional scope of the Citizenship Clause. Part III traces the diverging interpretations of the Citizenship Clause from 1875 before the landmark decision Wong Kim Ark. Part IV addresses the holding in Wong Kim Ark, if it is consistent with the original understanding of the Fourteenth Amendment, and whether it prevents excluding the children of unlawful aliens from citizenship. Lastly, Part V discusses how the passage of such legislation may come about, and the policy considerations that Congress must weigh before enacting it. It seeks neither to support nor oppose legislation limiting birthright citizenship. Instead, it seeks to center the debate on the potential of said legislation.

Keywords: Fourteenth Amendment, citizenship clause, immigration, birthright citizenship, jus soli, jus sanguinis, originalism, legal history, 1866 Civil Rights Act, Wong Kim Ark