What Does “Subject to the Jurisdiction Thereof” Mean in the Fourteenth Amendment?

In my book The Birthright: A History of Citizenship in America, I devoted three separate chapters to the phrase "subject to the jurisdiction thereof" found in the Fourteenth Amendment.  With all of the present controversy surrounding this phrase, I thought it would be good to make those three chapters available here.  The first two are from the section dealing with the debates in the senate, and the third chapter is from my analysis of the Supreme Court case United States vs. Wong Kim Ark.  These three chapters provide a clear explanation of this phrase supported by historical documents.

The Debate in the Senate – Complete Jurisdiction 

Senator Howard’s proposal received two objections in the Senate debate.  First, Senator Doolittle asked if the proposed amendment would grant citizenship to the children of Indians.  Then, Senator Cowan asked if the amendment would grant citizenship to the children of undesirable foreigners.  We will consider the responses to both of these challenges, beginning with the question about the amendment’s application to Indians.
 
When Sen. Doolittle heard the amendment, he immediately rose to say, “I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment — I presume he will have no objection to it — by inserting after the word ‘thereof’ the words ‘excluding Indians not taxed’.”
 
Sen. Howard responded by explaining that “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.”
 
Sen. Doolittle did not ask for further clarification at this point, but after a lengthy discussion on the applicability of the amendment to undesirable immigrants, Sen. Doolittle again rose to address the Senate.  He argued that the Indians were subject to American jurisdiction because their reservations were managed by the War Department. 
 
At this point, it was suggested that the chairman of the Senate Judiciary Committee explain how the Indians were not subject to the jurisdiction of the United States.  Senator Trumbull rose in response and said,
 
“It is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin [Sen. Doolittle]. The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get control of those people.”
 
There is a lot to unpack in this brief statement from Sen. Trumbull, and there has been much written about it already.  Most of what has already been written on this statement focuses on the terms “complete jurisdiction” and “allegiance,” but it is important that we not ignore the rest of the statement in which Sen. Trumbull illustrated what he meant by those terms.  According to Sen. Trumbull, the phrase “subject to the jurisdiction thereof” means “subject to the complete jurisdiction thereof,” and this in turn means “not owing allegiance to anybody else.”  He then asked Sen. Doolittle two questions that could be used to determine whether the Indians fit into the category of being subject to the jurisdiction of the United States.
 
The first question that Sen. Trumbull asked was whether an American citizen could sue an Indian in court.  At that time, the answer to that question was no.  An American citizen could not sue an Indian in an American court.  Nearly every treaty made with the various Indian tribes included an article declaring that if an Indian was guilty of harming an American citizen, the American government was required to receive permission from the tribal government before prosecuting the criminal, and the same was true in reverse.  American citizens were not answerable to the tribal courts because they were not subject to the jurisdiction of the tribal governments, and the Indians were not answerable to American courts because they were not subject to the jurisdiction of the United States.
 
Sen. Trumbull’s second question was whether the United States could pass a law to control the Indians.  Once again, the answer to that question was no.  The United States had no authority to pass laws to control the conduct of the Indians.  If Congress wanted to control the conduct of the Indians, they were required to negotiate treaties with the various Indian tribes, and all of the parties to the treaties were required to abide by the terms of those treaties, regardless of any other laws that may have been passed by either party.  A tribal government could not simply pass a law requiring that American citizens refrain from certain actions, and the government of the United States could not simply pass a law requiring that Indians refrain from certain actions.  American citizens were not subject to the laws of the various Indian tribes, and the Indians were not subject to the laws of the United States.
 
According to Sen. Trumbull, the answers to these two questions demonstrated that the Indians were not subject to the jurisdiction of the United States at that time.  Therefore, their children did not receive birthright citizenship, even though they were technically born within the borders of the United States. 
 
However, if we ask these two questions about immigrants, even illegal immigrants, we will receive answers opposite to those received when asking them about the Indians of that time.  Can an American citizen sue an illegal alien in an American court?  Yes.  There is no law preventing an American citizen from suing an illegal alien in an American court.  Can the United States pass a law to control illegal aliens?  Yes.  Our deportation statutes[1] do exactly that, and these statutes were passed through Congress without the need for any treaties with foreign governments.  Immigrants to America, regardless of their legal status, can be sued in American courts, and their conduct can be controlled by American laws.
 
Since Sen. Trumbull’s questions can be answered in the affirmative in regard to immigrants, whether they are in the country legally or not, it would seem to follow that all immigrants are subject to the jurisdiction of the United States.  If that is true, then the children of these immigrants should receive birthright citizenship if they are born within the borders of the United States.
 
Of course, it may be argued that illegal aliens could be subject to the jurisdiction of the United States in these two area and still not be subject to the complete jurisdiction of the United States.  It may be that there are other areas of American jurisdiction to which illegal aliens are not subject.  However, it is incumbent upon those making that claim to prove that it is true.  Sen. Trumbull provided two lines of evidence to prove that the Indians were not subject to the complete jurisdiction of the United States.  Those claiming that illegal aliens are also not subject to the complete jurisdiction of the United States must present equivalent evidence to prove their case.
 
The Debate in the Senate – More on Complete Jurisdiction 

Sen. Trumbull did not stop with just these few statements in his explanation for why the Indians were not within the jurisdiction of the United States, but his train of argument was interrupted by Senator Wade, who asserted that certain Indians should be made citizens by the proposed amendment.  Sen. Trumbull actually agreed with Sen. Wade and explained that if some Indians were to buy land in Colorado, for example, and “if they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed.”
 
Sen. Trumbull then returned to his explanation for why the Indians were not considered to be within the jurisdiction of the United States.  He said,

“It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’ Would the Senator from Wisconsin think for a moment of bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.”
 
As was the case with Sen. Trumbull’s previous list of questions, there are many who focus on the first sentence of this paragraph and ignore all of the questions which Sen. Trumbull included as tests to determine whether the Indians were or were not subject to the jurisdiction of the United States.  And just as we saw before, each of these questions which were answered in the negative when applied to the Indians are actually answered in the affirmative when applied to illegal aliens. 

Can Congress pass a law subjecting illegal aliens with whom we have no treaty to the laws and regulations of civilized life?  Yes. They can, and they have done so on numerous occasions.
 
Can the states punish illegal aliens for instituting among themselves their own regulations, such as Sharia?  Yes.  They can, and they have.  Fourteen separate anti-Sharia bills have been enacted among the several states, and these laws are applied to both legal and illegal immigrants alike.
 
Does the government of the United States have jurisdiction over murders and robberies and other crimes committed by one illegal alien upon another?  Yes.  Our government has the right to try and punish an illegal alien for a crime committed against another illegal alien.  We do not turn a blind eye to the plights of illegal aliens who are abused and murdered by other illegal aliens.  In fact, the Supreme Court addressed a question similar to this in Zadvydas v. Davis, and they cited a lengthy history of precedent in support of their conclusion.  “Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”[2]
 
Once again, we can see that none of Sen. Trumbull’s reasons for excluding Indians from birthright citizenship have any application to immigrants, even if those immigrants entered the nation illegally.  But there is another aspect of Sen. Trumbull’s questions that can be observed here.  Most, if not all, of the questions that Sen. Trumbull asked to demonstrate that the Indians were not subject to the jurisdiction of the United States in the sense of the citizenship clause also demonstrate that the Indians were not considered to be within the jurisdiction of the United States in the sense of the equal protection clause.  In other words, Sen. Trumbull’s questions reveal that the Fourteenth Amendment’s two references to the jurisdiction of the United States are closely related to each other. 
 
United States v. Wong Kim Ark – Subject to the Jurisdiction Thereof 

After dismissing Judge Miller’s statement in the Slaughterhouse Cases, the Wong Court turned to another case, which they described as “the only adjudication that has been made by this court upon the meaning of the clause, ‘and subject to the jurisdiction thereof’.”  That case was the 1884 opinion given in Elk v. Wilkins. 
 
The Elk Court determined that a person born to an Indian tribe was not entitled to birthright citizenship because he was not born subject to the jurisdiction of the United States.  According to the Elk opinion,

“Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more 'born in the United States, and subject to the jurisdiction thereof' within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.”[3]
 
The key phrase in this explanation is the parenthetical explanation that the Indian tribes were alien powers.  Thus, the court reasoned that even though the tribes themselves were dependent on the United States, the individuals within those tribes were actually alien subjects and not subjects or citizens of the United States.  The court compared the Indians with “subjects of any foreign government born within the domain of that government.”  As far as their citizenship status was concerned, they were in the same condition as a child born within the borders of a foreign government. 
 
The Wong Court recognized this reasoning in the Elk opinion and observed that the Elk opinion was founded on the grounds “that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States.”  The Indian tribes of that time were “alien nations,” even though they were not “foreign States.”  Their lands were possessions of the United States.  They occupied those lands with the permission of the United States.  But they were still alien nations with their own governments and laws.  Therefore, every child born to a member of an Indian tribe was born as a subject or citizen of that tribe and not as a citizen of the United States, just as if that tribe were an alien nation outside of the borders of the United States.
 
A more recent parallel to the relationship which existed between the Indian tribes and the United States can be seen in the occupations of Germany and Japan after World War II.  In the American occupation zone of Germany, and throughout occupied Japan, the German and Japanese governments were subject to the control of the United States.  In both cases, the United States initiated and enforced political and economic reforms that the occupied regions could not refuse.  However, the children born to German or Japanese parents during these occupations did not receive birthright citizenship, because Germany and Japan remained alien nations even though they were occupied by and were under the control of the United States.  Therefore, the children born within the American occupation zone of Germany and the children born within occupied Japan were born under alien jurisdiction, not under American jurisdiction.

Similarly, the Indian tribes were a conquered people whose governments were subject to the control of the United States in accordance with various treaties.  And just as in the American occupation zone of Germany and in occupied Japan, the children born to the members of the tribes did not receive birthright citizenship, because those tribes remained alien nations even though they had been conquered by and were under the control of the United States.  Therefore, the children born among the Indian tribes were born under alien jurisdiction, not under American jurisdiction.
 
After explaining that the alien nation status of the Indian tribes was the reason for the Indian exception to birthright citizenship, the Wong Court returned to the question of whether aliens residing in the United States were subject to the jurisdiction of the United States.  The Court concluded that “the real object of … the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words … the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State.”
 
To support this conclusion, the court referenced the case of The Exchange v. McFaddon.  The Wong Court pointed out that “the grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country were set forth by Chief Justice Marshall in a clear and powerful train of reasoning.”
 
The Wong Court noted that the McFaddon opinion did not touch on the question of jurisdiction over the Indian tribes or consider the question of jurisdiction over areas occupied by a hostile military force, but they also noted that “in all other respects, it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof.”
 
The general principle of jurisdiction laid down in McFaddon was that

“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.”[4]
 
In other words, the McFaddon Court claimed that no one within the territorial boundaries of the United States could be exempted from the jurisdiction of the United States unless the United States government had given them permission for that exemption.  This means that every individual within the borders of the United States is subject to the jurisdiction of the United States by default.  That is the natural condition which exists between an individual and the government of the region in which he is present.  To become not subject to the jurisdiction of that government, one must receive something from the government that he cannot obtain by his own power.  An individual must have the government’s consent before he can be within the government’s geographical boundaries without being subject to that government’s jurisdiction.
 
The McFaddon Court continued by explaining why ambassadors and foreign ministers are granted this exception by implication, because they are directly employed by their own government as its representatives.  The McFaddon Court then turned to the question of why other aliens are not excepted from the jurisdiction of the government of the land in which they are temporarily located.  According to the McFaddon Court,

“When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.”
 
The McFaddon Court noted that there was not a single logical reason to assume that aliens other than ambassadors and foreign ministers were not subject to the jurisdiction of the government of the land in which they are temporarily located.  The court even went so far as to say that mere entrance into a nation “can never be construed to grant such exemption.”  There must be an additional declared consent from the government of the land for an alien within that land to be exempt from the government’s jurisdiction. 

The Wong Court noted these explanations from the McFaddon Court and said of them that

“In short, the judgment … declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied … and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found.”
 
In other words, every alien within the borders of the United States is subject to the jurisdiction of the United States unless that alien has received permission from the United States to be exempt from its jurisdiction.  The only aliens which receive an automatic or implied exemption are ambassadors and foreign ministers.  All other aliens must receive expressly declared consent from the United States before they can be exempted from the jurisdiction of the United States.
 
The Wong Court found additional confirmation of this view in the language of every single naturalization law which had been passed by Congress.  The court noted that all of the naturalization laws required those applying for citizenship to have resided for a certain length of time “within the limits and under the jurisdiction of the United States.”  The court reasoned from this requirement that the phrase “under the jurisdiction of the United States” in our naturalization laws must therefore apply to aliens who had not yet renounced their allegiance to a foreign government. 
 
In consequence of these considerations, the Wong Court concluded that

“The words ‘in the United States, and subject to the jurisdiction thereof’ in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words ‘within the limits and under the jurisdiction of the United States,’ and the converse of the words ‘out of the limits and jurisdiction of the United States’ as habitually used in the naturalization acts.”
 
The court had recognized an unbroken chain of evidence, beginning long before our nation’s independence and continuing up to their time, confirming that every individual within the borders of the United States was subject to the jurisdiction thereof, except for individuals in three very specific and very limited classes.  First, the Indians were not subject to the jurisdiction of the United States because each of their tribes was still an alien nation, even though they were a conquered people.  Second, enemy military forces were not subject to the jurisdiction of the United States.  And third, ambassadors and foreign ministers were not subject to the jurisdiction of the United States, because they had consent from the government to be present without subjection.  No other individuals or classes of individuals within the geographical borders of the United States were exempt from being subject to the jurisdiction thereof.
 
Because of this lengthy chain of evidence, the court declared that “it is impossible to construe the words ‘subject to the jurisdiction thereof’ in the opening sentence, as less comprehensive than the words ‘within its jurisdiction’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the States of the Union are not ‘subject to the jurisdiction of the United States’.”
 
Thus, according to the Wong Court and in light of some very compelling evidence, the phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment currently includes every alien within the geographical borders of the United States except for enemy combatants engaged in war against the United States and ambassadors and foreign ministers engaged in diplomatic relations with the United States.  All other aliens currently within our borders are subject to the jurisdiction of the United States.
 
For my complete analysis of birthright citizenship in the U.S., order a copy of my book The Birthright: A History of Citizenship in America.

Note: I did not include footnotes for the quotations from the Senate debates or the Wong Kim Ark case because both of those were included in the appendix in their entirety.

[1] 8 U.S. Code § 1227 – 1231

[2] Zadvydas v. Davis, 533 U.S. 678, (2001)

[3] Elk v. Wilkins, 112 U.S. 94 (1884)

[4] The Exchange v. McFaddon, 11 U.S. 116 (1812)