{"id":543191,"date":"2026-03-24T23:03:08","date_gmt":"2026-03-24T23:03:08","guid":{"rendered":"https:\/\/www.newsbeep.com\/us\/543191\/"},"modified":"2026-03-24T23:03:08","modified_gmt":"2026-03-24T23:03:08","slug":"the-14th-amendment-does-not-codify-english-principles-of-subjectship-a-brief-reply-to-the-amar-brothers","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us\/543191\/","title":{"rendered":"The 14th Amendment does not codify English principles of subjectship: A brief reply to the Amar brothers"},"content":{"rendered":"

Professors Akhil and Vikram Amar have responded<\/a> to my recent post<\/a> arguing that the 14th Amendment does not grant automatic citizenship to the children of temporary visitors to the United States. As a practicing attorney, I am accustomed to having the opportunity to file a reply brief, and I thank the editors of SCOTUSblog for allowing me to briefly respond to the Amars\u2019 arguments.<\/p>\n

First, the Amars engage in an extended, multi-paragraph critique of my discussion of the 14th Amendment citizenship clause\u2019s provision for state citizenship. But nowhere in that extended critique do they appear to contest my basic argument. The citizenship clause provides that birthright citizens of the United States also are citizens \u201cof the State wherein they reside.\u201d That means that when a child is born in and subject to the jurisdiction of the United States, that child automatically is a citizen both of the United States and of the state (if any) where the child resides (i.e., is domiciled). And because the residence of a minor child is that of the child\u2019s parents or guardians, the child\u2019s state of residence (and, therefore, state of citizenship) at birth will be that of the parents, even if the parents are visiting a different state at the time. Thus, if a couple resident in New York has a child while visiting Florida, under the citizenship clause that child at birth will be a citizen of New York. It would be incongruous for the national citizenship provision of the citizenship clause to make a child born to a married couple resident in (old) York, England, during a temporary visit to Florida an automatic birthright citizen of the United States.<\/p>\n

In response to this basic point, the Amars make irrelevant arguments about matters such as the ability of state citizenship to shift over a person\u2019s lifetime (for example, when a child\u2019s parents die and the child\u2019s new guardian is a resident of different state) and whether a person can be a birthright citizen of the United States without also being a citizen of a state (for example, when a person resides in the District of Columbia).<\/p>\n

Second, the Amars quote officials Edward Bates, William Seward, and Salmon Chase stating generally that free children born in the United States were citizens regardless of the nationality of their parents. But these statements were made years before either the Civil Rights Act of 1866 or the 14th Amendment were adopted. And all agree that there are some exceptions to this general rule (e.g., the children of ambassadors); the question is whether \u201csubject to the jurisdiction thereof\u201d in the citizenship clause includes the children of temporary visitors. These statements do not answer that question. Indeed, if they were taken categorically, they would make \u201csubject to the jurisdiction\u201d in the citizenship clause superfluous, as the clause independently requires individuals to be born \u201cin\u201d the United States to be automatic birthright citizens. \u00a0\u00a0<\/p>\n

Third, the Amars quote Senator Lyman Trumbull and Representative John Bingham, but these quotes are even less persuasive. In legislative debate over the Civil Rights Act of 1866, Trumbull stated that \u201cthe children of \u2026 Gypsies\u201d would be citizens under the act. But even if such persons were itinerant within the United States, they would still be resident here, not in some other country like a foreign visitor. That understanding squares this statement with other statements of Trumbull, such that<\/a> the Civil Rights Act would not make citizens of persons \u201ctemporarily resident in\u201d the United States, and, in a letter that has been attributed to be<\/a> from Trumbull to President Andrew Johnson, that the Civil Rights Act generally declares to be citizens persons \u201cborn of parents domiciled in the United States.\u201d The Amars quote<\/a> Bingham\u2019s statement that \u201c[i]f a man is not a citizen of the country in which he was born, in God\u2019s name of what country is he a citizen\u201d? But elsewhere he qualified this principle, for example stating<\/a> that the citizens of the United States include \u201call free persons born and domiciled within the United States.\u201d \u00a0<\/p>\n

Fourth, the Amars cite an exchange<\/a> between Senators Benjamin Wade and William Fessenden on May 23, 1866 \u2013 a week before the citizenship clause\u2019s introduction \u2013 addressing an unsuccessful proposed amendment by Wade to what would become the privileges or immunities clause. But this exchange undercuts their case. Wade proposed to eliminate the clause\u2019s reference to citizens to instead provide that \u201cNo State shall make or enforce any law which shall abridge the privileges or immunities of persons born in the United States or naturalized by the laws thereof.\u201d As recorded in the Congressional Globe, it was only after Wade stated that persons born in the United States \u201cmost assuredly would be citizens of the United States unless they went to another country and expatriated themselves\u201d that Fessenden stated, \u201cSuppose a person is born here of parents from abroad temporarily in this country\u201d \u2013 apparently challenging Wade\u2019s statement. The later-introduced citizenship clause does not track Wade\u2019s proposed amendment, since it requires that a person be subject to the jurisdiction of the United States to automatically be a citizen at birth, not just born in the United States. And best interpreted, that language excludes the children of temporary visitors.<\/p>\n

Fifth, the Amars claim that the children of tribal Indians born in the United States outside of tribal lands were automatic birthright citizens under the 14th Amendment. But the Congressional debates about the citizenship clause make clear that its framers understood it to exclude tribal Indians from automatic birthright citizenship. In arguing against an amendment that would have added a clause excluding \u201cIndians not taxed\u201d to the citizenship clause, for example, Senator Jacob Howard explained<\/a> that \u201cIndians born within the limits of the United States\u201d \u2013 not just within the limits of tribal lands \u2013 \u201cand who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.\u201d<\/p>\n

Howard\u2019s understanding is also consistent with that of the Supreme Court in the 1884 case of Elk v. Wilkins<\/a> which held that \u201cIndians born within the territorial limits of the United States\u201d who are \u201cmembers of and owing immediate allegiance to one of the Indian[ ] tribes\u201d are not \u201csubject to the jurisdiction of\u201d the United States under the citizenship clause.<\/p>\n

Howard\u2019s understanding further is consistent with the Indian Citizenship Act of 1924<\/a>. In their brief<\/a> to the Supreme Court (at 9 n.11), the Amars state that the act \u201cextended birthright citizenship to babies born on tribal lands.\u201d What the act<\/a> actually said was that \u201call non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.\u201d The Amars cite no similar sources suggesting that whether a tribal Indian was born on tribal lands was in any way material. If it were, and if, as the Amars, claim<\/a>, \u201csurely there were countless situations in which tribally allegiant parents gave birth outside the soil of tribal enclaves,\u201d there presumably would have been somediscussion of this issue and some apparatus for attempting to determine where in the United States a tribal Indian was born.<\/p>\n

Sixth, the Amars suggest that the citizenship clause \u201cranged beyond\u201d the Civil Rights Act of 1866 by extending automatic birthright citizenship to a broader class of individuals. But that would have been a surprise to the framers of the citizenship clause. When introducing the citizenship clause in the Senate, for example, Senator Howard stated<\/a>, \u201cthis amendment which I have offered is simply declaratory of what I regard as the law of the land already\u201d \u2013 which, of course, was the Civil Rights Act of 1866.<\/p>\n

What is more, in 1870, Congress reenacted<\/a> the Civil Rights Act of 1866, which would have been unimaginable if its citizenship provisions were unconstitutional under the recently ratified 14th Amendment. Notably, the apparent reason for the change in language from the Civil Rights Act of 1866 was to eliminate potential ambiguity in the reference to \u201cIndians not taxed\u201d to make clearer that tribal Indians were not to be automatic birthright citizens. As Senator Trumbull, the sponsor of the Civil Rights Act, explained<\/a>, \u201cI think it better to avoid these words [\u2018Indians not taxed\u2019] and that the language proposed in this constitutional amendment is better than the language in the civil rights bill. The object to be arrived at is the same.\u201d<\/p>\n

Seventh, the Amars claim<\/a> that my original post \u201cinsists that a baby born in America to alien sojourners is lesser than a baby born in America to citizen parents.\u201d Not so. Like the founders of this nation, I firmly believe that \u201call men are created equal.\u201d In fact, my original post insists not that the child of temporary visitors is inferior but rather that it would be antithetical to the republican principles upon which our government is built to make such a child an automatic citizen at birth. At birth, the expectation would be that such a child would return with his or her parents to be raised in the parents\u2019 country of residence upon the conclusion of their temporary sojourn. It is precisely out of respect for the full and equal dignity of such persons that the citizenship clause does not make them automatic birthright citizens, because they are not subject to the full and complete jurisdiction of the United States.<\/p>\n

Indeed, the jurist who Akhil Amar has described (see 10:28 here<\/a>) as \u201cJoseph freaking Story\u201d and \u201cthe greatest legal scholar, constitutional scholar, in America of [the 19th] Century\u201d wrote<\/a> in 1841 that the general rule that \u201cpersons who are born in a country are generally deemed to be citizens and subjects of that country . . . should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health, or curiosity, or occasional business.\u201d By including a requirement that automatic birthright citizens be subject to the jurisdiction of the United States, the framers and ratifiers of the 14th Amendment codified this exception in the nation\u2019s foundational charter. \u00a0<\/p>\n

Disclosure:\u00a0Pete Patterson represents the Senator Eric Schmitt and Representative Chip Roy in an amicus brief<\/a> filed in support of Petitioners in\u00a0Trump v. Barbara.<\/p>\n

Cases: Trump v. Barbara (Birthright Citizenship)<\/a><\/p>\n

\n\t\t\t\t\t\t\t\tRecommended Citation:
\n\t\t\t\t\t\t\t\tPete Patterson,
\n\t\t\t\t\t\t\t\tThe 14th Amendment does not codify English principles of subjectship: A brief reply to the Amar brothers,
\n\t\t\t\t\t\t\t\tSCOTUSblog (Mar. 24, 2026, 6:04 PM),
\n\t\t\t\t\t\t\t\thttps:\/\/www.scotusblog.com\/2026\/03\/the-14th-amendment-does-not-codify-english-principles-of-subjectship-a-brief-reply-to-the-amar-brothers\/\t\t\t\t\t\t\t<\/p>\n","protected":false},"excerpt":{"rendered":"Professors Akhil and Vikram Amar have responded to my recent post arguing that the 14th Amendment does not…\n","protected":false},"author":2,"featured_media":543192,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[18],"tags":[23,3,21,19,22,20,25,24],"class_list":["post-543191","post","type-post","status-publish","format-standard","has-post-thumbnail","category-united-states","tag-america","tag-news","tag-united-states","tag-united-states-of-america","tag-unitedstates","tag-unitedstatesofamerica","tag-us","tag-usa"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/543191","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/comments?post=543191"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/543191\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media\/543192"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media?parent=543191"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/categories?post=543191"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/tags?post=543191"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}