Original meaning of the citizenship clause

The only real debate about the meaning of the citizenship clause comes from constitutional originalists, of which the overwhelming majority are considered politically conservative. More liberally inclined judicial minds, for the most part, either consider the original meaning of the clause irrelevant for the purpose of determining what it should mean today, or side with the particular originalist camp that concludes the clause was meant to guarantee birthright citizenship to anyone born in the territory of the United States.

Originalist legal minds are, however, split down the middle as to the original public meaning of the clause. As to their debate, there are several relevant quotations that predate the ratification of the 14th amendment, and which serve to inform our understanding of the meaning of its terms.

First, the famous Supreme Court Justice Joseph Story wrote in 1840 that:

Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the ligeance [sic] of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and, consequently, owe obedience or allegiance to, the sovereign, as such, de facto. [Emphasis added.]

As to what may constitute de facto allegiance to a sovereign, James Madison wrote even earlier:

It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. [Emphasis added]

These two giants of early American jurisprudence were commenting on the meaning of the term “Natural born citizen” found in Article II of the Constitution. Therefore, it seems that if we are to make the altogether rational assumption that Justice Story and James Madison shared the same, correct understanding of the “established maxim” of birth as the most certain criterion of allegiance, and that de facto allegiance is sufficient to create citizenship, then birthright citizenship would be guaranteed by the Constitution. The original understanding of Article II would inform such an interpretation of the 14th Amendment – if birth is sufficient to create citizenship, and citizens are unambiguously subject to the jurisdiction of the United States, then all persons born in the territory of the United States must be citizens of the United States, guaranteed all rights and subject to all duties that derive therefrom.