Author’s Original Version / Preprint. This Article reexamines the Citizenship Clause of the Fourteenth Amendment by focusing on the phrase “subject to the jurisdiction thereof.” Modern interpretation often treats that condition as coextensive with territorial birth, subject to narrow exceptions. This reading, while familiar, is not compelled by the text. Drawing on the structure of the Citizenship Clause, the Reconstruction debates, and the Supreme Court’s decisions in Elk v. Wilkins and United States v. Wong Kim Ark, this Article argues that “jurisdiction” has been under-read. Across these materials, jurisdiction extends beyond mere presence and incorporates concepts of allegiance, political subjection, and the relationship between the individual and the sovereign. A close reading of Wong Kim Ark shows that its broad language is embedded in a structure tying birthright citizenship to birth within the territory “in the allegiance and under the protection” of the United States. The modern rule depends on treating that formulation as self-sufficient, rather than as part of a larger constitutional condition. This Article does not seek to unsettle settled expectations or revisit prior recognition of citizenship. It instead clarifies the Citizenship Clause going forward. If “jurisdiction” is to retain independent meaning under the Fourteenth Amendment, it must be treated as a condition that requires demonstration, not assumption.
Orin France (Thu,) studied this question.