In typical fashion, the Ninth Circuit Court of Appeals completely misread the 14th Amendment’s Citizenship Clause and the congressional speech of its principal framers in a July 27 decision, State of Washington, et al. v. Donald Trump, et al. This ideologically motivated opinion was written by a three-judge panel, composed of two Clinton appointees and a Trump appointee who registered a “partial concurrence and a partial dissent.” Overall, however, it was an embarrassment to the canons of legal reasoning and historical truth. It surely will be overruled by the Supreme Court—hopefully on an expedited basis.
On January 20, 2025, President Trump acted expeditiously to fulfill a campaign promise by issuing an executive order redefining who is “subject to the jurisdiction of the United States.” I believe Trump is to be applauded for bringing the question of birthright citizenship to the attention of the public and provoking debate on this crucial issue. I have questions, however, as to whether an executive order in isolation is a constitutional means of pursuing the cause.
Congress clearly has power under Section 5 of the 14th Amendment “to enforce, by appropriate legislation, the provisions of this article.” One provision is that “no State shall make or enforce any law which abridges the privileges or immunities of citizens of the United States.” This has been controversial, because the language of the amendment is couched in negative terms.
The question of how a negative is to be enforced by positive legislation has always been rather an enigma. Congress passed a sweeping Civil Rights Act in 1875 which, in part, foundered on this issue and the issue of “state action”; in 1873, in the Slaughterhouse Cases, Congress’s power to enact regulatory legislation under the Privileges and Immunities and Equal Protection Clauses was thoroughly hobbled. No serious attempt to revise civil rights protection was again attempted until the Civil Rights Act of 1964.
The judges in the Ninth Circuit decision, citing contemporary dictionary definitions of “jurisdiction” from the time of the 14th Amendment’s passage, find that the “ordinary meaning of jurisdiction” is simply “’the authority of government; the sway of a sovereign power.’” They easily conclude that this is “consistent with Plaintiffs’ interpretation of ‘subject to the jurisdiction thereof’ as subject to the laws and authority of the United States.” To drive this point home, the opinion alleges that
Defendants point to no contrary dictionary definitions that define jurisdiction in terms of allegiance and protection. Indeed, they make no arguments about the ordinary meaning of the Citizenship Clause at all. Defendants’ only argument based on the text of the Citizenship Clause is that ‘subject to the jurisdiction’ cannot simply refer to ‘regulatory jurisdiction,’ because that definition would render the Citizenship Clause’s requirement of jurisdiction surplusage. They claim that the United States has ‘exclusive and absolute’ regulatory jurisdiction within its territory, so that all children born in the United States are subject to its jurisdiction.
It is entirely true that defendants do not prove their point about “jurisdiction in terms of allegiance” by recourse to contemporary dictionaries. Rather, they have recourse to the statements and arguments made during floor debates in the 39th Congress. The principal drafters, architects, and supporters of the 14th Amendment understood the meaning of “jurisdiction” in terms of “allegiance.”
Senator Jacob Howard, a member of the Joint Committee on Reconstruction, was the floor leader for the debate on the Citizenship Clause. It was a late addition to the amendment, proposed by Senator Benjamin Wade of Ohio, at first simply stating that citizens are “persons born in the United States or naturalized by the laws thereof.” Wade added that he believed the matter of citizenship had been settled by the Civil Rights Act of 1866.
Wade’s proposal was referred to the Joint Committee on Reconstruction, and Senator Howard presented the Committee’s draft, which became the first sentence of the 14th Amendment. The significant addition to Wade’s proposal was the clause that specifies its subject as those “subject to the jurisdiction” of the United States. Evidently Senator Howard and the Joint Committee placed some importance on the addition of this jurisdiction clause.
This meant, at a minimum, that not all persons born in the U.S. were automatically citizens; they also had to be “subject to the jurisdiction” of the U.S. When he introduced the bill, Senator Howard said he regarded the Citizenship Clause as declaratory of the law as it already existed. He was clearly referring to the Civil Rights Act of 1866, passed over the veto of President Andrew Jackson by a two-thirds majority in both houses less than two months prior to the May 30, 1866, debate in the Senate.
The Intention of the Lawgivers
The Civil Rights Act of 1866 established the citizenship of newly freed slaves and the protection of their rights and liberties on the exact same basis as those of white citizens. This included the right to own, rent, inherit, and convey property; make contracts; the right to keep and bear arms; and all other rights and liberties pursuant upon full citizenship. In short, this was a colorblind law.
Some believed it to be unnecessary, arguing that the 13th Amendment had already accomplished the intended purpose. Others believed that the amendment guaranteed only manumission, so that security of citizenship and rights should be recognized in legislation as a social compact. Still others, however, feared that such legislation could be repealed by future majorities. This concern became the impetus for the 14th Amendment to “constitutionalize” the Civil Rights Act of 1866.
Senator Lyman Trumbull, chairman of the Senate Judiciary Committee and principal architect of the 13th Amendment, as well as the Civil Rights Act of 1866, joined Senator Howard, agreeing that the “law of the land” in the U.S. meant that “subject to the jurisdiction” connoted “complete jurisdiction,” not “owing allegiance to anyone else”—the very definition of citizenship in the Civil Rights Act.
The Ninth Circuit Court refers to the leading case on the issue of citizenship, United States v. Wong Kim Ark, decided in 1898. Based on this ruling, the Ninth Circuit argues, “Supreme Court precedent makes clear that reading ‘subject to the jurisdiction thereof’ to mean ‘subject to United States authority and laws’ is not redundant.” As proof, the Ninth Circuit Court, like the Wong Kim Ark Court, cites an opinion by Chief Justice Marshall, Murray v. The Charming Betsey (1804). Justice Horace Gray, in his opinion for the Court in Wong Kim Ark, alleges that Marshall’s opinion “assumed…that all persons born in the United States were citizens of the States.”
Justice Gray reports that the chief justice held that position, but it is nowhere stated in the opinion. The Charming Betsy was a complicated case, touching on various questions to do with whether a person can divest himself of American citizenship by swearing allegiance to one or more different countries. In deciding the case, Chief Justice Marshall said,
whether a person born within the United States, or becoming a citizen according to the established laws of the country can devest himself absolutely of the character otherwise than in such manner as may be prescribed by is a question which it is not necessary at present to decide.
In other words, it was not necessary to decide the question of citizenship to determine the outcome of the case.
The Ninth Circuit also discusses the Supreme Court’s decision in Elk v. Wilkins (1884), in which the Court gives a social compact account of the status of native persons in the U.S. that could have been written by James Madison himself. The Ninth Circuit Court seems unaware that the opinion was written by Justice Gray (he does not admit he is the author in the opinion). However, the opinion in Elk cannot be squared with the Wong Kim Ark opinion, and it remains a mystery why Justice Gray changed his mind on this important issue of the common law basis of American citizenship.
The Ninth Circuit closes its opinion by arguing that “post-ratification public understanding of the 14th Amendment supports the Plaintiffs’ interpretation of the Citizenship Clause.” That understanding was that jurisdiction was equated with being subject to the laws of the United States.
Abraham Lincoln didn’t live to see the ratification of the 14th Amendment, but it is difficult not to see his spirit embedded in its first section. Lincoln said presciently in his First Inaugural that the “intention of the law-giver is the law.” This is a perfectly Aristotelian statement and undoubtedly understood by Lincoln as such. Nothing can be more obvious, even to the most unpracticed eye, than that the intentions of the framers, architects, supporters, and friends of the 14th Amendment were that “jurisdiction meant, owing complete allegiance to the U.S. and to no other foreign jurisdiction.”