Who Decides What the 14th Amendment Means?

If you want to understand what the Constitution means, read The Federalist Papers. In those essays, the Constitution’s primary author, James Madison, as well as leading defenders Alexander Hamilton and John Jay, explain what the Founders meant in the legal document that established our government. Likewise, if you want to understand what the 14th Amendment means, revisit the words of its authors. Specifically, let’s look at the clause “subject to the jurisdiction thereof,” which is being debated after President Donald Trump’s proposal to eliminate by executive order birthright citizenship for babies born to illegal aliens in America.

Michigan Sen. Jacob Howard, who sponsored Section 1 of the 14th Amendment (the Citizenship Clause), noted in 1866 that “subject to the jurisdiction thereof” was “simply declaratory of what I regard as the law of the land already.” He stated further, “This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

In 1873, the Supreme Court concluded (albeit in non-binding comments indirectly related to the case) that “subject to the jurisdiction thereof” was meant to exclude the children of “ministers, consuls, and citizens or subjects of foreign states born within the United States.”

However, in 1898’s Wong Kim Ark decision, the Court ruled that a man born in the U.S. to Chinese-immigrant parents was a citizen, as were “all children here born of resident aliens.” That still doesn’t settle the question of illegal aliens.

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