Photo Credit: Supreme Court of the United States, Encyclopaedia Britannica, https://www.britannica.com/topic/Supreme-Court-of-the-United-States (last visited Aug. 17, 2026).
Authored by: Henry Bishop
For more than a century, the Citizenship Clause of the Fourteenth Amendment has been understood to guarantee citizenship, with narrow exceptions, to those born within the United States.[1] That understanding faced a direct challenge when President Trump issued Executive Order No. 14160, which declared that children born to parents unlawfully or temporarily present in the United States are not “subject to the jurisdiction” of the United States and therefore are not citizens at birth.[2] Shortly thereafter, several parents challenged the Order, and the Supreme Court ultimately agreed with them in Trump v. Barbara.[3]
The majority interpreted the Citizenship Clause to guarantee citizenship to virtually every person born within the United States.[4] Under its interpretation, the jurisdiction requirement excludes only narrow categories, such as children of foreign diplomats, who fall outside the United States’ ordinary territorial jurisdiction.[5] But that raises a question: if nearly everyone within the United States is already subject to its jurisdiction, what independent work does the Citizenship Clause’s second requirement perform that the first does not?
The text of the Citizenship Clause imposes two conjunctive requirements: a person must be (1) “born or naturalized in the United States” and (2) “subject to the jurisdiction thereof.”[6] In defining the second requirement, the majority looked to contemporary dictionaries, concluding that “jurisdiction” meant the government’s power to govern and that being “subject to” that jurisdiction meant living under its dominion.[7] The majority reinforced that definition with Schooner Exchange v. McFaddon, which described jurisdiction as “the full and complete power of a nation within its own territories.”[8]
The problem is that territorial jurisdiction reaches almost everyone. As the majority itself acknowledged, “nearly everyone within the territorial boundaries of the United States” is amenable to the Nation’s jurisdiction.[9] The breadth of that definition is significant because it makes jurisdiction turn primarily on the government’s authority over a person, rather than the nature of that person’s relationship to the United States. With limited exceptions, individuals physically present in the United States are subject to its laws and may be prosecuted for violating them. Thus, once the first requirement—birth within the United States—is satisfied, the second will almost invariably follow. The majority’s interpretation therefore risks making the jurisdiction requirement largely derivative of the territorial-birth requirement.
The majority points out that the exceptions to birthright citizenship create the rule. A child born to a foreign diplomat may be born within the United States without being “subject to the jurisdiction thereof.”[10] The Court explains that sovereigns historically waived territorial jurisdiction in certain narrow circumstances, particularly where exercising jurisdiction would “degrade the dignity” of a foreign sovereign.[11] Thus, the second requirement is not entirely superfluous. The existence of an exception proves the second requirement has meaning; it does not necessarily establish the full extent of that meaning. This begs the question, that if the Framers of the Fourteenth Amendment expressly imposed jurisdiction as a second condition of citizenship, is it plausible that the condition was extended to only include the “very few exceptions” already recognized by principles of territorial sovereignty?[12]
The historical evidence provides reason to question the majority’s narrow conception of the jurisdiction requirement. The Civil Rights Act of 1866—enacted by the same Reconstruction Congress that proposed the Fourteenth Amendment—declared citizens to be persons born in the United States “and not subject to any foreign power.”[13] Both the majority and the dissent look to the Act in interpreting the Citizenship Clause.[14] But its language suggests that Congress understood citizenship to involve more than mere exposure to American law, rather, it expressly framed citizenship in relation to whether a person was subject to another sovereign.
The dissent accordingly reads “subject to the jurisdiction thereof” to require complete political jurisdiction and “direct and immediate allegiance” to the United States.[15] On that view, the second requirement performs obvious independent work. The first asks where a person is born; the second asks to which sovereign the person was politically subject at birth.
The disagreement, then, is not whether allegiance matters, but what creates it. The majority grounds allegiance in territory.[16] Drawing from the common-law rule of jus soli, the majority reasons that a person born within a sovereign’s territory receives that sovereign’s protection, and, in return, owes it a “natural allegiance.”[17] The dissent, by contrast, distinguishes temporary presence from domicile.[18] Under its historical account, temporary foreign visitors were regarded as “strangers, not subjects,” because their presence within the sovereign’s territory did not itself establish the direct and immediate allegiance associated with domicile.[19]
That distinction is significant for children born to parents unlawfully or temporarily present in the United States. The dissent’s argument is not that such children, or their parents, are physically present foreigners and therefore owe allegiance elsewhere, but it is that the parents’ temporary or unlawful presence does not establish the political relationship with the United States that “complete” jurisdiction historically required.[20] Because a newborn’s legal status was historically connected to the domicile and allegiance of the parents, the dissent argues that territorial birth alone cannot answer the separate question whether the child was completely subject to the United States’ political jurisdiction.[21]
A person temporarily present in the United States may still be subject to American law while still maintaining a political relationship with another sovereign. The Civil Rights Act’s reference to persons “not subject to any foreign power” suggests that Reconstruction-era lawmakers recognized this distinction. If the Fourteenth Amendment incorporated a similar understanding, “subject to the jurisdiction thereof” may require something more than mere amenability to United States law.
The majority’s interpretation does not erase “subject to the jurisdiction thereof” from the Fourteenth Amendment, as foreign diplomats and other narrow historical exceptions ensure that the phrase retains some independent effect. But that is a modest role for an express constitutional prerequisite. Under Barbara, territorial birth will ordinarily establish both that a person was born in the United States and that the person was subject to its jurisdiction. The historical language of foreign allegiance and complete political jurisdiction suggests that the second requirement may have been intended to do more. At minimum, the majority’s near-universal rule of birthright citizenship leaves an unresolved textual question: why expressly require both?
[1] Trump v. Barbara, 146 S. Ct. 2438, 2453 (2026).
[2] Id. at 2444.
[3] Id.
[4] See id. at 2450, 2458 (holding that they “keep th[e] promise” of citizenship to “every free-born person in this land”).
[5] Id. at 2450.
[6] U.S. Const. amend. XIV § 1.
[7] In citing the dictionary’s definition, the Supreme Court recognized that “‘jurisdiction’ . . . refers to the ‘power of governing or legislating,’” as well as “[t]he authority of government; the sway of the sovereign power,” therefore concluding that “[t]o be ‘subject to’ the jurisdiction of the United States, then, is to ‘live under’ its ‘dominion.’” Barbara, 146 S. Ct. at 2449.
[8] Id. (citing Schooner Exch. v. McFadden, 11 U.S. 116, 136 (1812)).
[9] Id. at 2450.
[10] Id. at 2449-50.
[11] Id. at 2450.
[12] Id. at 2446.
[13] Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27; Barbara, 146 S. Ct. at 2475 (Thomas, J., dissenting).
[14] Barbara, 146 S. Ct., 2448, 2476.
[15] Id. at 2494.
[16] Id. at 2449.
[17]Id. at 2445, 2454.
[18] Id. at 2474-75 (Thomas, J., dissenting).
[19] Id.
[20] Id. at 2475-76.
[21] Id.