Birth Tourism Issue Offers Lens for Birthright Citizenship Case

The advocates’ positions in the landmark US Supreme Court case to be argued this week regarding President Donald Trump’s American Citizenship Order miss an important nuance: The Constitution doesn’t confer citizenship to children born to foreign parents who don’t live in the US.

There’s persuasive evidence that the 1868 original meaning of the 14th Amendment’s Citizenship Clause covers all people born to foreign parents who reside in the US without regard to unlawful entry. The government’s contrary view is based on mistaken notions of “domicile” and “jurisdiction.” But the clause doesn’t confer citizenship on children born to foreign transients, including so-called birth tourists who enter the US on a tourist visa to deliver their child and gain US citizenship for the newborn.

The clause provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

This language confirms an American residence requirement. The clause declares that covered people are “citizens of the United States” and citizens “of the State wherein they reside.” The phrase “wherein they reside” applies to state citizenship, but it presupposes that covered people reside in the US for national citizenship, too. Infants generally reside where their parents reside.

Evidence of the original meaning of “subject to the jurisdiction thereof” in 1868 confirms a US residence requirement. The government claims the phrase means “completely subject” to US “political jurisdiction,” which “children of temporarily present or illegal aliens” aren’t because “their parents are not domiciled in, and thus do not owe the requisite allegiance to, the United States.”

The government is mistaken about what domicile meant in the 19th century. Domicile denoted a person’s residence to which they intend to remain or return to as home. Temporarily present foreigners aren’t domiciled in the US because they reside and intend to return to homes abroad, not because they lack “requisite allegiance” to the US.

The government is also wrong to say that children born to “illegal aliens” aren’t citizens because they “lack the legal capacity to establish domicile.” Lack of legal capacity to form domicile in the mid-19th century didn’t mean failure to pay allegiance to laws regulating entry into the US. It denoted people whom applicable state law deemed incapable of establishing domicile on their own, such as minors, women, and enslaved or mentally incompetent people.

A slaveowner who changed domicile from a slave state to a free state or territory, for example, effected a change of domicile for his slaves, but not if he went for a visit. Free states responded with “anti-sojourner” laws and judicial decisions declaring any enslaved person who came there to be freed. Courts in some slave states adhered to these free-state laws and decisions out of comity.

Dred Scott v. Sandford put an end to these interstate citizenship disputes by declaring that all Black people, “whose ancestors were imported into this country and sold as slaves,” weren’t citizens under the Constitution.

The Citizenship Clause repudiated Dred Scott and obliterated governmental power to deny American citizenship to not just Black people, but all people within the US and subject to their jurisdiction. The clause’s general language forecloses the argument that the clause doesn’t apply if the federal government didn’t admit their parents into the country.

We know the clause constrains not just states but also the president because it was passed as a constitutional amendment after Congress overrode President Andrew Johnson’s veto of the 1866 Civil Rights Act overruling Dred Scott by statute. If, as the government argues, the clause excepts children born to people who entered or were brought into the US in violation of immigration or import laws, as many slaves were, it would undercut this absolute prohibition.

Because of its misreading of domicile, the government reads “subject to the jurisdiction thereof” unduly narrowly to mean “completely subject to US political jurisdiction.” The political-jurisdiction reading, the government asserts, is synonymous with “born in the United States and not subject to any foreign power” in the Civil Rights Act of 1866—and explains why the clause doesn’t apply to “children born to tribal Indians” even though Native American tribes are “unquestionably subject to the United States’ regulatory jurisdiction.”

But the 1866 statute extended citizenship to any person “born in the United States and not subject to any foreign power, excluding Indians not taxed.” Native Americans were carved out by this explicit language, not because of an unstated view that they were not subject to US “political jurisdiction.”

There’s persuasive evidence that Native American tribes weren’t subject to US jurisdiction under the original meaning of the Citizenship Clause. The 13th Amendment (ratified December 1865) abolished slavery “within the United States, or any place subject to their jurisdiction.”

If Native American tribes were “unquestionably subject to U.S. regulatory jurisdiction” as the government alleges, the 13th Amendment would have abolished slavery in tribal lands as it did in former Confederate states. But in 1866, Congress deemed it necessary to make treaties with Confederacy-allied slaveholding tribes to abolish slavery and force them to give “persons of African descent and blood” the “rights of native citizens.”

At the same time, the order’s opponents overclaim when they say that any person born in US sovereign territory is born a citizen “subject to the jurisdiction thereof” with exceptions only for children born to foreign ambassadors, invading soldiers, and Native Americans.

This theory makes “subject to the jurisdiction thereof” essentially redundant of being “born in” the US and denies the reality that the jurisdictional phrase turns on contemporaneous international law—customs and treaties—for its content.

The importance of treaties to understanding the original meaning of “subject to the jurisdiction thereof” in the Citizenship Clause is best illustrated by its naturalization prong. The late addition of the words “or naturalized” expanded the clause’s coverage from interstate citizenship disputes regarding Black Americans culminating in Dred Scott to international dual-citizenship controversies involving naturalized citizens. A common fact pattern was a naturalized American citizen who returned to their country of origin where the government drafted the person for military service, as President Abraham Lincoln complained in his 1863 annual address to Congress.

The solution the US devised to fix the problem were bilateral treaties called Bancroft treaties after George Bancroft, US minister to Prussia and the German Empire from 1867 to 1874. For example, the 1868 treaty with Bavaria provided that Bavaria would treat its citizens who were naturalized as citizens in US courts and “resided uninterruptedly within the United States five years” as American citizens. The treaty also provided that any Bavarian who “naturalized in America, renews his residence in Bavaria” and “resides more than two years” in Bavaria would be deemed to have renounced American citizenship.

The upshot is that the Citizenship Clause’s original meaning contains a US residence requirement for the foreign parents of a child born in the US to be born a citizen, too. The clause doesn’t encompass children born to transient foreigners like birth tourists.

That’s broader than the government’s position, which distorts “domicile” to stand for political allegiance when it really meant residence with intent to stay there as a home. But it’s narrower than the prevailing scholarly view’s predominantly territorial approach. This reading of the Citizenship Clause is also consistent with United States v. Wong Kim Ark (1898), the leading Supreme Court decision.

A constitutional residence requirement for children born in the US to foreign parents makes sense from an immigration-policy perspective as well. There’s no clear original meaning as to length of residence, but history and tradition—including the contemporaneous Bancroft treaties and debates in the First Congress about the residence requirement for foreigners to be naturalized citizens—suggest that two years may suffice.

It has to be “an actual residence of such a length of time” that foreigners have “an opportunity of esteeming the Government from knowing its intrinsic value,” urged Thomas Hartley of Pennsylvania. And as James Madison stated in 1790 and Lincoln reiterated in 1863, the residence requirement must also protect against the possibility that “aliens might acquire the right of citizenship and return to the country from which they came” for self-serving reasons.

As the Supreme Court hears oral arguments in Trump v. Barbara, it could do worse than heed Madison’s and Lincoln’s advice.

The case is Trump v. Barbara, U.S., No. 25-365, oral arguments scheduled 4/1/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Thomas H. Lee teaches constitutional law and international law at Fordham Law School. He is a naturalized US citizen born in South Korea and a former US naval cryptology officer and Pentagon lawyer.

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