The Citizenship Clause of the Fourteenth Amendment states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….” Longstanding precedent, including U.S. v. Wong Kim Ark (1898), settled that children born on U.S. soil, regardless of their parents’ status, are “subject to the jurisdiction” of the United States. President Donald Trump recently issued an executive order, however, that purports to curtail birthright citizenship. Courts, scholars, and others have explained how the executive order is contrary to statutory law, disregards precedent, and is unconstitutional.[1]
I write to focus on a modest point to complement what has already been written. Wong Kim Ark—and, for that matter, those cases interpreting the phrase “within its jurisdiction” from the Equal Protection Clause[2]—do not stand alone. A long line of authority holds that persons or things within a country’s territorial borders are subject to its jurisdiction. Other connections, unrelated to place and physical location, may also provide a sufficient nexus to be within a nation’s sovereign authority, yet at the time of the Fourteenth Amendment’s ratification, a nation’s territorial jurisdiction was the baseline, subject to only a few narrow, established exceptions. See Schooner Exchange v. McFadden, 11 U.S. 116, 136 (1812) (Marshall, CJ) (“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.”). This understanding of territorial sovereignty—that a nation’s jurisdiction at a minimum extends over people, property, and things within its borders—has remained thoroughly consistent over time.
I seek then not to weigh in on the issue of birthright citizenship directly, but to underscore something well understood by procedural scholars and scholars of public and private international law. Persons, property, or things within a nation’s territorial borders are “subject to the jurisdiction” of that nation with only limited exclusions that were also developed to respect territorial sovereignty. Notions of allegiance and other forms of connection may also create a jurisdictional nexus, but they simply do not alter that baseline understanding, which has been recognized and reaffirmed by the Supreme Court time and again since the adoption of the Fourteenth Amendment.
The Geography of Jurisdiction
In the 19th century, jurisdiction referred to those places where the State could exercise sovereignty under international law. See, e.g., Joseph Beale, The Jurisdiction of the Sovereign State, 36 Harv. L. Rev. 241, 241 (1923) (“The power of a sovereign to affect the rights of persons, whether by legislation, by executive decree, or by the judgment of a court, is called jurisdiction.”). Territorial borders were the foundation for delineating that state power, including judicial, legislative, and executive power (i.e., adjudicatory, prescriptive, and enforcement jurisdiction). While over time international law evolved to also permit extraterritorial authority focused on other connections—e.g., jurisdiction beyond borders based on nationality, universality, the protective principle, or passive personality—persons within the territory of the United States were always understood to be subject to the nation’s jurisdiction. In his famous 1964 Hague lectures, The Doctrine of Jurisdiction in International Law, F.A. Mann explained these well-established rules: “Jurisdiction is an aspect of sovereignty . . . [and] sovereign independent States. . . possess jurisdiction over all persons and things within its territorial limits and in all cases, civil and criminal, arising within these limits’….”[3]
This was widely understood and uncontested. The landmark Pennoyer v. Neff decision in 1878, which interpreted the Fourteenth Amendment not long after its ratification, is just one example.[4] Justice Field, before discussing limitations on judicial power, began by describing how the power of individual states of the union was akin to the power of individual nation-States in an international system and governed by “principles of public law”:
One of these principles is that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory. . . . As a consequence, every State has the power to determine for itself the civil status and capacities of its inhabitants. . . . The other principle of public law referred to follows from the one mentioned; that is, that no State can exercise direct jurisdiction and authority over persons or property without its territory.
The Pennoyer court itself relied on earlier decisions that explained how the nation’s jurisdiction was defined by its territorial borders. This basic concept of territorial jurisdiction was a fundamental underpinning of the common law. Joseph Story, Commentaries on the Conflict of Laws §§ 554, 543 (1846) (noting under the common law “every nation may . . . rightfully exercise jurisdiction over all persons within its domains.”). And, in turn, this general understanding of a nation’s territorial power could be seen in all kinds of cases. See, e.g., America Banana Co. v. United Fruit Co., 213 U.S. 347, 357-59 (1909) (noting that legislation is usually “confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power”).[5]
In short, the focus was squarely on the State and its authority based on attributes of sovereignty. State power, while it could be expanded beyond borders in certain contexts, was not limited by the characteristics of the persons or property with the State’s territorial authority. In other words, the jurisdiction of a nation within its territorial borders was never limited by some concept of allegiance as has been suggested in a recent and roundly criticized op-ed.[6]
None of this was surprising. Territorial sovereignty was, at the time, not just about where a State had authority but about where other States did not have authority. As a fledgling nation, the United States sought to make clear its authority within its boundaries. The concern over “taxation without representation,” and the freedom to not be subject to the laws of other countries, had long been a cornerstone of American political theory since independence. And territoriality was also foundational to an international system framed by a Westphalian concept of sovereignty.
Modern Debates Around Territoriality and Extraterritoriality
International law has evolved since the 19th Century. States now often exercise jurisdiction outside their borders, with modern debates focused on under what circumstances nations extend their extraterritorial reaches too far.[7] No longer is it true, if it ever was, that territorial jurisdiction was strictly exclusive. The basic principle, however, that a nation has jurisdiction within its borders remains a steadfast principle of the international legal order.
While true that narrow exclusions exist, those exclusions only reaffirm the basic principle. The United States has long recognized some immunities and exclusions from territorial jurisdiction – for example, exclusions have long existed for special appearances (i.e., limited immunity from territorial authority when a defendant appears solely to challenge the court’s jurisdiction), as well as the treatment of foreign rulers, ambassadors, and foreign soldiers.[8] And Native American tribes in the 1800s were considered as “nations within” or “domestic dependent nations” that had their own territorial sovereignty. See, e.g., Cherokee Nation v. Georgia, 30 U.S. 1, 2 (1831) (describing tribal sovereignty as “domestic dependent nations”).
These limited exceptions were driven in large part, however, by comity. As such, they reaffirm the principle of territorial sovereignty as a baseline for a nation’s jurisdiction, rather than undermine it. Similarly, that an individual might be subject to a State’s jurisdiction outside a State’s borders because of other connections (e.g., authority over U.S. citizens residing abroad through nationality jurisdiction)[9] doesn’t detract from the understanding that a territorial theory of jurisdiction underpinned the Fourteenth Amendment. It simply means that territorial jurisdiction was not exclusive, but it was always sufficient.
The U.S. Supreme Court has on multiple occasions reaffirmed these understandings. Cases in the adjudicatory jurisdiction context continue to be animated by territorial sovereignty concerns. The U.S. Supreme Court has continued to explain how this understanding of national sovereignty existed at the time of the Fourteenth Amendment’s ratification. See Burnham v. Superior Court , 495 U.S. 604, 610 (1990) (noting the view at the time of the Fourteenth Amendment’s ratification “that each State had the power to hale before its courts any individual who could be found within its borders…..”); Mallory v. Norfolk Southern Railway, 600 U.S. 122 (2023) (explaining that “[b]oth at the time of the founding and the Fourteenth Amendment’s adoption” a court’s competence was “generally constrained only by the ‘territorial limits’ of the sovereign that created it”). And the Court has applied a presumption against extraterritoriality in part because State power is uncontested when exercised within territorial boundaries. Morrison v. National Australia Bank, 561 U.S. 247 (2010); EEOC v. Arabian American Oil Co., 499 U. S. 244 (1991).
Understanding what the Fourteenth Amendment’s use of the term “jurisdiction” means is relatively straightforward. At the time of the Fourteenth Amendment’s ratification “subject to the jurisdiction thereof” referred to places within U.S. territorial borders. From the point of precedent and continued practice, Wong Kim Ark and its progeny are not a single line of cases. Turning away from Wong Kim Ark would require ignoring dozens of binding precedents in the adjudicatory, prescriptive, and enforcement jurisdiction contexts.
Just as the Court has long held the language of the Citizenship Clause (“subject to the jurisdiction thereof”) to include persons and things within the territorial borders of the United States, and the language of the Equal Protection Clause (“within the jurisdiction”) to cover persons within U.S. territory, so too has it been long-established that persons and things within U.S. borders are subject to the jurisdiction of the United States.
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- See Adam Cox et al., The Fundamental Flaws in the Barnett/Wurman Defense of Trump’s Birthright Citizenship Executive Order, Just Security, Feb. 19, 2025 (noting that arguments to end birthright citizenship “disregard binding precedent”); Megan L. Blonigen & Frances Y. Young, Harvard Law Professor Criticizes Trump’s Attempt to End Birthright Citizenship, The Harvard Crimson, Jan. 27, 2025 (quoting Gerald Neuman that “[t]he theory on which the executive order is based is junk science…); see also Ilya Somin, Birthright Citizenship and Undocumented Immigrants, Just Security, Nov. 25, 2024 (noting broad agreement “among most constitutional law scholars, across the ideological and methodological spectrum” and that “Trump’s apparent plan to deny citizenship to children of undocumented immigrants” is “clearly unconstitutional”). ↑
- See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886) (explaining the language “any person within its jurisdiction” applies to “all persons within the territorial jurisdiction); Plyler v. Doe, 457 U.S. 202 (1982) (noting that the Fourteenth Amendment’s use of the term “within its jurisdiction” applies and “reaches into every corner of a State’s territory”). ↑
- More recently, see Cedric Ryngaert, Jurisdiction in International Law (2nd ed. Oxford University Press 2015). ↑
- See also Rose v. Himely, 8 U.S. 241 (1808) (“It is conceded that the legislation of every country is territorial; that beyond its own territory, it can only affect its own subjects or citizens”); St. Louis v. The Ferry Co., 78 U.S. 423 (1870) (describing jurisdiction over “the persons and property within its own limits and subject to its authority”); The Appollon, 22 U.S. 362 (1824) (“The municipal laws of one nation do not extend in their operation beyond its own territory except as regards its own citizens.”). ↑
- Scholarship describing the interplay between territorial sovereignty and jurisdiction is extensive. For a few examples, see Austen Parrish, The Interplay Between Extraterritoriality, Sovereignty, and the Foundations of International Law, in The Extraterritoriality of Law: History, Theory, Politics (D. Margolies et al. eds., 2019); Hannah L. Buxbaum, Territory, Territoriality, and the Resolution of Jurisdictional Conflict, 57 Am. J. Comp. L. 631 (2009); Richard T. Ford, Law’s Territory (A History of Jurisdiction), 97 Mich. L. Rev. 843 (1999). For an example that discusses how territorial theories are built into the U.S. Constitution in various ways, see Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Columbia L. Rev. 249, 315-331 (1992). ↑
- For some examples of the criticism, see, e.g., Anthony Michael Kreis, Evan D. Bernick, and Paul Gowder, Birthright Citizenship and the Dunning School of Unoriginal Meanings, 111 Cornell Law Review Online (forthcoming 2025); Chris Mirasola, There is No Puzzle About Birthright Citizenship, LawFare, Feb. 25, 2025; Steven Lubet, Trump’s Dangerous Theory on Birthright Citizenship Contradicts the Founders’ Goals, The Hill, Feb. 24, 2025; Adam Cox et al., The Fundamental Flaws in the Barnett/Wurman Defense of Trump’s Birthright Citizenship Executive Order, Just Security, Feb. 19, 2025; Ilya Somin, More on Birthright Citizenship and Undocumented Immigrants – Rejoinder to Barnett and Wurman, The Volokh Conspiracy, Feb. 18, 2025; Jonathan Shaub, Birthright Citizenship and the Obscure Right of Expatriation, LawFare, Feb. 18, 2025; Jed Shugerman, Birthright Citizenship: Barnett & Wurman’s NY Times Essay and their Bates/Blackstone Double Backfire, Shugerblog, Feb. 16, 2025. ↑
- For detailed discussion of the expansion of extraterritorial jurisdiction, see Austen Parrish & Cedric Ryngaert (eds.), Research Handbook on Extraterritoriality in International Law (2023); Hannah Buxbaum & T. Fleury Graff (eds.), Extraterritoriality/ L’Extraterritorialité (2022). ↑
- For a discussion outside the Citizenship Clause context. See Charles N. Gregory, The Privileges of Ambassadors and Foreign Ministers, 3 Mich. L. Rev. 173 (1905). ↑
- For an exploration of some of these issues, Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (2011). ↑