Two Supreme Court opinions, both issued within the decade after ratification of the 14th Amendment, are particularly relevant to construing the meaning of the Birthright Citizenship provision. Note that, because the meaning of the Birthright Citizenship provision did not determine the outcome in either case, the Court’s statements in both decisions are dicta, not binding holdings. But the Justices’ words should be considered authoritative insofar as they were expressed by Justices who lived through the enactment of the provision they were construing, and thus were well positioned to comprehend the meaning and intention of the words. These Court-expressed views on the meaning of the Birthright Citizenship provision should also be considered authoritative because the Justices were unanimous in making the statement in one case, and, in the other, the dissenters did not disagree with that particular point.
In the Slaughterhouse Cases, the Court wrote that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” That is as absolute and complete a statement as can be imagined, and it would deny birthright citizenship to a child born in this country to undocumented immigrants or to a transient alien mother. Then, two years later, in Minor v. Happersett, the Court unanimously and expressly recognized the existence of “doubts” that citizenship was automatic for “children born within the jurisdiction without reference to the citizenship of their parents,” after noting that citizenship attaches only when the immigrant owes “allegiance” to this country. These two Supreme Court rejections of automatic birthright citizenship for anyone born in this country, without regard to the parents’ citizenship status, are supported by facts undoubtedly known to those Justices, and certainly known to us.
After the Civil War, congressional Republicans drafted the 14th Amendment to correct one of slavery’s grave distortions of our law. In Dred Scott v. Sanford, Chief Justice Roger Taney found that slaves, even though born in the United States, could never become citizens. The 14th Amendment directly overruled Dred Scott by declaring that everyone born in the U.S., irrespective of race, were citizens. It also removed from the majoritarian political process the ability to abridge the citizenship of children born to members of disfavored ethnic, religious, or political minorities.
The only way to avoid this straightforward understanding is to misread “subject to the jurisdiction thereof” as an exception that swallows the jus solis rule. Some scholars have argued—wrongly—that this language must refer to aliens, who owe allegiance to another nation and not the U.S.
