We Already Had This Argument. It’s Called the Fourteenth Amendment
Somewhere between executive orders, lower court injunctions, and a fast-tracked trip to the Supreme Court, the country has found itself relitigating a question most lawyers thought was settled before their great-grandparents were born: who, exactly, is a citizen of the United States?
The current case, sparked by an attempt to narrow birthright citizenship through executive action, has forced the Court to confront a deceptively simple phrase in the Fourteenth Amendment to the United States Constitution: “subject to the jurisdiction thereof.”
Supporters of narrowing citizenship argue the modern immigration system is being exploited in ways the Framers of the Fourteenth Amendment never anticipated when the Amendment was passed to ensure newly freed slaves would not be deprived of their citizenship.
Opponents argue the Constitution and the Courts already answered this question – and did so deliberately, in the 1898 landmark case, The United States v. Wong Kim Ark.
On Wednesday, I went on The Mark Arum Show on WSB Radio to clarify some of the issues in the debate and why this issue of birthright citizenship continues to be debated.
The Justices’ questions this week suggest they understand what’s at stake: not just immigration policy, but whether citizenship itself is a fixed constitutional guarantee, or something that can be reinterpreted… or worse, redefined, by shifting political winds.
And for Georgia, this isn’t abstract.
Georgia sits at the intersection of rapid population growth, immigration pressures, and political scrutiny over elections, public benefits, and state resources. How the Court rules could affect:
- eligibility for state and federal benefits,
- public education funding formulas,
- voter eligibility debates (yes, those again), and
- the broader legal framework Georgia uses to navigate immigration enforcement and integration.
In short: this isn’t just a constitutional law seminar. It’s a policy earthquake waiting to happen.
The Holding That Forced a Constitutional Rewrite
The holding in Dred Scott v. Sandford wasn’t just wrong…it was so wrong that Congress rewrote the Constitution to erase it.
Not tweak it. Not clarify it. Erase it.
While most arguments are focused on the Court’s holding in Wong Kim Ark (and we will get to that in a moment), the reasoning behind the Fourteenth Amendment centered on the Court’s decision in Dred Scott, specifically the majority opinion written by Chief Justice Roger B. Taney.
If you’re not familiar with the Dred Scott case, I’ll give you the short version of the events:
Dred Scott, an enslaved man, sued for his freedom after having lived with his owner in free territories, including Illinois and the Wisconsin Territory, where slavery was prohibited. Scott argued that his residence on free soil made him free.
The Supreme Court, however, never reached the merits of that claim, holding instead that Scott was not a citizen and therefore lacked standing to sue in federal court. If the Court had stopped there, saying an enslaved individual was not a citizen, it would have been bad enough, but the Court took it a step further.
In his majority opinion, Taney wrote the following passage addressing the citizenship of free Black individuals as well:
“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race… and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”
Closely tied to the citizenship question, Taney also stated:
“We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution…”
In essence, the Court explicitly held that free Black people were not, and were never intended to be, U.S. citizens under the Constitution.
That nullified any potential action by Congress to make sure that race was not a determining factor of citizenship because the Court had ruled that the Constitution itself prohibited it.
So, following the Civil War, Sen. Jacob Howard (R-MI), who had served as Attorney General of Michigan before his elevation to the U.S. Senate, proposed a new Amendment to codify in the Constitution what was already the law as to who was a citizen.
And yet, here we are again, parsing the meaning of “citizen” like the Reconstruction Congress left us a riddle instead of a rule.
They didn’t.
Jacob Howard Wasn’t Being Subtle
When Senator Howard introduced what became the Citizenship Clause, he didn’t speak in abstractions.
He spoke like someone who thought the issue had already been beaten to death:
“The first amendment is to section one, declaring that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens…’”
Then, almost with a shrug:
“I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed… as not to need any further elucidation…”
That’s not ambiguity. That’s legislative exhaustion.
And then he says the quiet part out loud:
“This amendment… is simply declaratory of what I regard as the law of the land already…”
Read that again.
Not new law. Not a reinvention. A declaration.
And then the line that keeps getting selectively quoted, but rarely read in full:
“This will not, of course, include persons born in the United States who are foreigners, aliens… who belong to the families of ambassadors… but will include every other class of persons.”
Every other class.
If this all feels familiar, it should.
During the debate, Sen. Edgar Cowan (R-PA) raised what sounds like a modern cable news chyron: what about the children of Chinese immigrants? Or so-called “Gypsies” born in the United States? Would they be citizens too?
Sen. Lyman Trumbull (R-IL), Chairman of the Senate Judiciary Committee, didn’t hesitate:
“What do we mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else… That is what it means.”
In other words, the question wasn’t immigration status; it was sovereign allegiance.
And unless you were a diplomat or an invading army, you were under it.
That very question would later reach the Court in United States v. Wong Kim Ark.
(Don’t worry, I’ll get to Wong Kim Ark soon)
Blackstone Already Answered This (In the 1700s)
If Howard sounded confident, it’s because he was standing on the shoulders of William Blackstone and centuries of common law.
Blackstone didn’t treat citizenship as a policy lever. He treated it as a function of allegiance:
“Natural-born subjects are such as are born within the dominions… that is, within the allegiance of the king…”
And allegiance wasn’t abstract:
“Allegiance is the tie… which binds the subject to the king, in return for that protection…”
And just to remove any doubt:
“The children of aliens, born here in England, are… natural-born subjects…”
Then the contrast:
“…in France… if a child be born of foreign parents, it is an alien.”
Blackstone’s Commentaries crossed the Atlantic with the Founders, who studied law through his framework.
While the United States did not adopt English common law wholesale as a national system, American courts have long recognized its influence. In Smith v. Alabama, 124 U.S. 478 (1888), the Court observed:
“The interpretation of the constitution… is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
America didn’t stumble into birthright citizenship.
It inherited it…and then reaffirmed it.
While The Federalist Papers never cite Blackstone by name, they didn’t need to. The Founders, and later the Reconstruction Congress, were operating within his framework: citizenship as a function of allegiance to a sovereign, not compliance with a regulatory scheme.
That distinction may feel subtle.
It isn’t.
The Revolution didn’t reject English common law…it rejected who got to control it. The Founders kept the legal system and fired the monarchy.
So What Does “Subject to the Jurisdiction” Actually Do?
Here’s where the modern debate gets… creative.
In 1868, “jurisdiction” meant actual, enforceable legal authority—not policy categories.
If you were:
- not a diplomat’s child,
- not part of an invading army,
You were subject to U.S. law.
Even today, under longstanding principles of international law, codified most clearly in the Vienna Convention on Diplomatic Relations, diplomats are not fully “subject to the jurisdiction” of the countries in which they reside.
That’s not a loophole. It’s the system.
Diplomatic immunity reflects a basic premise of sovereignty: a diplomat represents a foreign nation and remains, in a legal sense, under the authority of that nation, not the host country. As a result, diplomats generally cannot be arrested, detained, or prosecuted by the host nation’s courts.
If a diplomat violates local law, even commits a serious crime, the host country’s primary remedies are limited:
- Request that the diplomat’s home country waive immunity, or
- Declare the diplomat persona non grata and expel them
Absent that waiver, prosecution typically cannot proceed.
In other words, presence alone does not equal full jurisdiction.
That principle, recognized across centuries of custom and formalized in treaty law, draws a clear distinction between:
- being physically present in a country, and
- being fully subject to its sovereign authority
And that distinction is exactly what the framers of the Fourteenth Amendment were getting at when they used the phrase “subject to the jurisdiction thereof.”
While someone may be in the United States unlawfully, there is nothing in our legal system that places that individual outside the reach of American law. To the contrary, unlawful presence does not confer immunity; it subjects a person to it.
If an individual were truly not “subject to the jurisdiction” of the United States, our courts would lack authority over them entirely. Yet that is plainly not how the system operates.
José Antonio Ibarra, who entered the country unlawfully, was arrested, tried, and convicted in a Georgia court for the brutal murder of Laken Riley in 2024 and sentenced to life in prison.
That outcome is only possible because he was fully subject to the jurisdiction of the United States.
If he were not, Georgia would have had no authority to prosecute him, absent permission from a foreign sovereign, much like the rules that apply to diplomats.
That is the distinction the Fourteenth Amendment was drawing: not between lawful and unlawful presence, but between those subject to American law and those who are not.
One could imagine Congress attempting to redefine that boundary, to declare that certain categories of individuals present in the United States are not fully subject to its jurisdiction.
But such a move would carry profound consequences.
A person not subject to U.S. jurisdiction would, by definition, fall outside the reach of its courts. That is not a narrowing of citizenship; it is a restructuring of sovereignty.
And it raises a far more serious question: whether the United States would be creating a class of persons present within its borders, but beyond the full authority of its laws.
If someone truly were not “subject to the jurisdiction” of the United States, our courts would have no authority over them at all. But that’s not how our system works. Individuals present in this country unlawfully are arrested, prosecuted, and imprisoned under American law every day. José Antonio Ibarra was convicted in a Georgia court for the murder of Laken Riley because he was subject to that jurisdiction, fully, not partially. The alternative is not a narrower definition of citizenship; it is a radically different conception of sovereignty, one in which a class of people could live within our borders but beyond the reach of our laws unless a foreign government consents. That is not how the Fourteenth Amendment was understood in 1868, and it is not how our legal system functions today.
And when the Supreme Court was finally asked to decide the issue, it confirmed what should have already been obvious. Which is why United States v. Wong Kim Ark (yes, we made it!) came out the way it did.
Because the rule wasn’t new then either.
Wong Kim Ark was born in San Francisco to Chinese parents who were subjects of the Emperor of China but lawfully residing in the United States. After traveling abroad, he was denied reentry on the grounds that he was not a U.S. citizen. Wong challenged that decision, arguing that his birth on U.S. soil made him a citizen under the Fourteenth Amendment.
In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court held that a person born in the United States to non-citizen parents is a U.S. citizen under the Fourteenth Amendment, so long as those parents are not diplomats or enemy occupiers.
Drawing heavily on English common law and the principle of birthright allegiance, the Court rejected the argument that parental nationality or status altered that result. In doing so, it confirmed that “subject to the jurisdiction thereof” refers to being subject to U.S. law and authority, not to immigration status or political classification. That holding remains the clearest judicial answer to the question now being debated: whether birth on American soil, coupled with subjection to its laws, is enough to confer citizenship.
Under Wong Kim Ark, the legal status of a person’s parents, whether lawful, temporary, or even precarious, does not control the citizenship of a child born on U.S. soil, because the Court did not ground its analysis in immigration classifications at all.
Instead, the Court grounded citizenship in two things:
- Birth within the territory of the United States, and
- Being subject to its jurisdiction, meaning its laws and sovereign authority
The Court once again looked to English common law and made clear that, with narrow exceptions (diplomats and hostile occupying forces), anyone born within the sovereign’s domain is under its jurisdiction.
Critically, the Court rejected the idea that allegiance turns on parental status. Wong Kim Ark’s parents were not citizens. They were not eligible to become citizens. And yet, that did not matter because they were living in the United States and subject to its laws.
That same reasoning applies even more forcefully to individuals on temporary visas:
- They are physically present with the government’s permission
- They are unquestionably bound by U.S. law
- They can be arrested, prosecuted, taxed, and regulated
In other words, they are fully subject to U.S. jurisdiction.
The executive-order theory attempts to introduce a new distinction between categories of lawful presence, but that distinction does not appear in:
- the text of the Fourteenth Amendment
- The Reconstruction debates
- or the reasoning of Wong Kim Ark
The Court in Wong Kim Ark did not ask whether the parents had permanent status, lawful status, or the right paperwork.
It asked whether they were subject to the sovereign authority of the United States.
And once the answer to that question was yes, the outcome followed automatically.
Wong Kim Ark didn’t turn on immigration status…it turned on sovereignty. And if you can be arrested, prosecuted, and punished under American law, you are subject to its jurisdiction, whether your visa is permanent, temporary, or nonexistent.
Critics argue that Wong Kim Ark is limited to lawful residents, or that modern immigration realities justify a narrower reading of “jurisdiction.” But the Court didn’t ground its decision in immigration categories; it grounded it in sovereignty. The test was whether a person is subject to American law, not whether they complied with it. That distinction matters. Individuals here can be unlawfully arrested, prosecuted, and imprisoned. That is jurisdiction in its most concrete form. And while policy concerns about abuse are real, they do not change the constitutional rule the Reconstruction Congress adopted, and the Supreme Court affirmed more than a century ago.
But Let’s Be Honest…The System Is Under Strain
Here’s where serious people can reasonably disagree.
The scale and structure of modern immigration, lawful and unlawful, are far beyond anything Blackstone or Howard could have envisioned.
Birth tourism. Visa overstays. System gaming.
These are real pressures.
Acknowledging that doesn’t weaken the constitutional argument; it clarifies the policy problem.
The Supreme Court Now Has Options (And None Are Clean)
Based on the questioning, the Court appears to be weighing:
1. Reaffirm Wong Kim Ark.
Leave the constitutional rule intact.
2. Narrow “Jurisdiction.”
Attempt to define new limits—inviting years of litigation.
3. Defer to Congress.
Let Congress legislate under Section 5 authority.
4. Reject Executive Overreach.
Draw a firm line against unilateral presidential redefinition of citizenship.
The Bottom Line
The Reconstruction Congress didn’t draft the Citizenship Clause casually.
They drafted it to overrule Dred Scott v. Sandford and to end the very kind of uncertainty we’re now flirting with again.
Yes, the modern system is under strain.
But if we’re going to revisit citizenship, let’s be honest about what we’re doing:
- We’re not clarifying the Constitution.
- We’re testing whether we’re still bound by it.
And that’s a much bigger question than the one currently before the Court.
