Trump v. BarbaraTrump v. Barbara
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. BARBARA ET AL.
CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 25–365. Argued April 1, 2026—Decided June 30, 2026
The question presented is whether the Constitution guarantees citizenship to children born in the United States of parents who are unlawfully or temporarily present in the country. Under the Citizenship Clause of the Fourteenth Amendment, “[a]ll 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.” On January 20, 2025, President Trump issued Executive Order No. 14160, titled Protecting the Meaning and Value of American Citizenship. The Order provides that children born in the United States of parents who are unlawfully or temporarily present here are not “subject to the jurisdiction” of the United States—and thus do not qualify for citizenship under the Fourteenth Amendment or the Immigration and Nationality Act (INA), which uses the same language. 90 Fed. Reg. 8449. Several parents filed suit, some in the name of their children, arguing that the Executive Order violates the Fourteenth Amendment and the INA. The District Court agreed, provisionally certified a nationwide class of children who would be denied citizenship by the Order, and preliminarily enjoined the Order’s enforcement. This Court granted certiorari before judgment.
Held: Children born in the United States to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause. Pp. 2–26.
(a) The Citizenship Clause must be understood in light of its historical context, from the English common law to the widespread condemnation of the Court’s decision in Dred Scott v. Sandford, 19 How. 393.
- Under the English common law, children “born within the [sovereign’s] dominions” owed a natural “allegiance” to the sovereign who protected them at birth,
1 W. Blackstone, Commentaries on the Laws of England 354, 356 (Blackstone) , regardless of how “momentary and uncertain” their presence, Calvin’s Case, 7 Co. Rep. 1a, 6a, 77 Eng. Rep. 377, 384. Such children were therefore “natural-born subject[s].” Doe v. Jones, 4 T. R. 300, 308, 100 Eng. Rep. 1031, 1035. The same rule applied to children born of parents subject to expulsion. See, e.g.,4 Blackstone 166 . The rule’s exceptions were narrow: children born in lands the sovereign did not control, children born in areas temporarily outside the sovereign’s control, and children of foreign ministers (by a fiction of extraterritoriality). Calvin’s Case, 7 Co. Rep., at 18a–18b, 77 Eng. Rep., at 399.
This common law of citizenship—known as jus soli, or right of the soil—crossed the Atlantic and prevailed in “each and all of the states” after American independence.
- In Dred Scott v. Sandford, the Court departed from the common law and adopted the view that blood, not soil, determined citizenship; it held that those descended from slaves could not be citizens. 19 How., at 419. The decision was met with shock, see D. Potter, The Impending Crisis, 1848–1861, p. 281; 3 Writings of Abraham Lincoln 55, and abolitionists swore to undo what the Court had done, see 2 Life and Writings of Frederick Douglass 259, 415, 424. Pp. 6–8.
- In the midst of the Civil War, Attorney General Edward Bates issued a landmark opinion citing key authorities, including Calvin’s Case and
Kent’s Commentaries , rejecting the premise that “citizenship is ever hereditary,” and declaring that “every person born in the country is, at the moment of birth, prima facie a citizen, . . . without any reference to race or color.” 10 Op. Atty Gen. 382, 394, 399. The exceptions were “few”—“the small and admitted class of the natural-born composed of the children of foreign ministers and the like.” Id., at 397. Following the war, Congress sought to turn Bates’s opinion into law by enacting the Civil Rights Act of 1866, which made citizens of “all persons born in the United States and not subject to any foreign power,excluding Indians not taxed.” §1, 14 Stat. 27. The Act was simply assumed to invoke the common law rule. See Cong. Globe, 39th Cong., 1st Sess., 1116 (Rep. Wilson); id., at 1832 (Rep. Lawrence). Pp. 8–9.
(b) What the Civil Rights Act began, the Fourteenth Amendment, and its repudiation of Dred Scott, would finish. Pp. 9–12.
- The Fourteenth Amendment’s Citizenship Clause mirrored the common law’s criteria for citizenship, starting with territory (a child must be “born . . . in the United States”) and ending with sovereign power (a child must be “subject to the jurisdiction” of the United States). A child born on American soil and subject to American law was made an American citizen. Even the language of the Clause is that of the common law, echoing cases and treatises that described the common law rule. See, e.g., Lynch, 1 Sand. Ch., at 668; Kent 38 and n. a. And its principal author explained that its language was “simply declaratory of . . . the law of the land already.” Cong. Globe, 39th Cong., 1st Sess., 2890 (Sen. Howard). Pp. 9–10.
- The Citizenship Clause’s key phrase—“subject to the jurisdiction”—refers to the power of the United States to govern those within its territory. N. Webster, An American Dictionary of the English Language 732 (def. “jurisdiction”); J. Worcester, Dictionary of the English Language 1435 (def. “subject”). The scope of that power was settled largely by Schooner Exchange v. McFaddon, 7 Cranch 116, where Chief Justice Marshall explained that “jurisdiction” referred to “the full and complete power of a nation within its own territories,” “susceptible of no limitation not imposed” by the nation itself. Id., at 136. The narrow exceptions to jurisdiction arose where exercising jurisdiction would “degrade the dignity” of “foreign sovereigns”—most frequently in the case of “foreign ministers.” Id., at 136–139. But private individuals who traveled to the United States for “business or caprice” were “amenable to the jurisdiction of the country.” Id., at 144. Children born in the United States to parents unlawfully or temporarily present here are thus subject to the Nation’s jurisdiction. Pp. 10–12.
(c) The Court’s precedent in United States v. Wong Kim Ark, 169 U. S. 649, confirms this rule. Pp. 13–16.
- For nearly two decades after the Amendment’s ratification, the Executive Branch viewed the Citizenship Clause as “simply an affirmance of the common law,” with the limited exception of “the children of foreign ministers,” and others “with rights of extraterritoriality.” Memorandum of Secretary of State H. Fish to Mr. Marsh (May 19, 1871), in 2 Digest of the International Law of the United States §183, p. 394. But the end of the Reconstruction era brought uncertainty. Around that time, the State Department began to deny citizenship to those with “dual or doubtful allegiance,” id., at 402, and several scholars proposed a new international-law based theory of the Citizenship
Clause, focused on the parents’ status, not the child’s, F. Wharton, Conflict of Laws §10, p. 35. Only if a child’s parents were “domiciled in the United States” was the child “internationally subject to the jurisdiction of the United States,” as the Citizenship Clause (they said) required. Id., §12, at 41–42 (emphasis added). Acknowledging that the common law took a different view, these writers insisted that jus soli had not been made part of the Constitution. Pp. 13–14. - In Wong Kim Ark, the Court held that the Fourteenth Amendment was “declaratory” of the “fundamental rule of citizenship by birth” that prevailed at common law, 169 U. S., at 688, excluding only those recognized as exempt “from the jurisdiction of this country”—the “children of ambassadors” and those born in the nations of Indian tribes, id., at 675, 681–683, 693. All others were citizens at birth, whether born to permanent residents or temporary visitors. See id., at 676, 687–688. The Court wrote that the words “ ‘subject to the jurisdiction thereof’ ” “must be presumed to have been understood . . . in the same sense” as Chief Justice Marshall used them in Schooner Exchange. Wong Kim Ark, 169 U. S., at 687. Under that understanding, aliens who traveled to the United States for “business or pleasure” received no “exemption from the jurisdiction of the country.” Id., at 686. To the contrary, they were subject to that jurisdiction for as long as they remained here—and any children born to them were American citizens under the Fourteenth Amendment. See id., at 682–688. Pp. 14–16.
(d) Arguments for limiting birthright citizenship to those domiciled in the United States fail. These arguments err in their definition of “allegiance,” contending that natural allegiance was no longer sufficient for citizenship and that some greater quantum of allegiance (based on domicile) was required. There is scant evidence for this dramatically revisionist view; sources from 1776 to 1868 defined “allegiance by birth” just as the British did—as “the tie or duty” owed by one who is “born within the dominions and under the protection of a particular sovereign.” Inglis v. Trustees of Sailor’s Snug Harbour in City of New York, 3 Pet. 99, 155.
Domicile and national citizenship are distinct concepts; one who establishes a domicile in a new country does not automatically become a citizen thereof, nor does he automatically lose his prior citizenship.
The congressional debates over the Civil Rights Act of 1866 and the Fourteenth Amendment confirm the common law rule. Statements embracing the common law rule were far more frequent and explicit than ambiguous references to “temporary sojourners.” See, e.g., Cong. Globe, 39th Cong., 1st Sess., 1117. For a Congress intent on putting the question of citizenship “once and forever [to] rest,” Cong. Globe, 42d Cong., 1st Sess. 575, a domicile-based qualification would have
Attempts to narrow Wong Kim Ark by noting that the Court’s opinion repeatedly referred to the domicile of Wong’s parents fail because the holding’s underlying reasoning cannot be squared with a domicile requirement; the Court exhaustively canvassed the text and history of the Citizenship Clause and at no point identified any evidence that the ratifiers thought themselves to be imposing a domicile limitation. Pp. 17–26.
Affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined. JACKSON, J., filed a concurring opinion, in which SOTOMAYOR, J., joined as to the introduction and Part I. KAVANAUGH, J., filed an opinion concurring in the judgment and dissenting in part. THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined. ALITO, J., and GORSUCH, J., filed dissenting opinions.
No. 25–365
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. BARBARA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 30, 2026]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
At issue in this case is whether the Constitution guarantees citizenship to children born of parents unlawfully or temporarily present in the United States.
I
The Fourteenth Amendment 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.”
On January 20, 2025, President Trump issued Executive Order No. 14160, titled Protecting the Meaning and Value of American Citizenship. The Order provides that children born of persons unlawfully or temporarily present in the United States are not “subject to the jurisdiction” of the United States—and thus do not qualify for citizenship under the Fourteenth Amendment or the Immigration and
Several parents filed suit, some on their own behalf, others on behalf of (and in the name of) their children. They argued that the Executive Order violates the Fourteenth Amendment and the INA. The District Court agreed. 790 F. Supp. 3d 80, 101–102 (NH 2025). It provisionally certified a nationwide class of children who would be denied citizenship by the Order and preliminarily enjoined the Order’s enforcement. Id., at 105–106. We granted certiorari before judgment. 607 U. S. 1079 (2025).
II
To understand the Citizenship Clause of the Fourteenth Amendment, it is first necessary to understand the context in which it arose—and the opinion of this Court, Dred Scott v. Sandford, 19 How. 393 (1857), that it rejected.
A
The story of citizenship in the United States begins with the English common law. Before the Revolution, the American colonists—like all in the British Empire—were considered subjects of the sovereign. See Inglis v. Trustees of Sailor’s Snug Harbour in City of New York, 3 Pet. 99, 120–121 (1830). That arose not from royal fiat, but from what the common law conceived as the relationship between the sovereign and the people. The King, Blackstone explained, owes those “born within the dominions” a duty of
Because the sovereign’s power (and thus his duty) was limited in various respects, so too was the scope of this rule. He could not demand allegiance from—for he could not protect—those born in lands that he did not control. Id., at 18a, 77 Eng. Rep., at 399. (Among that group were the people born in the King’s lost dominions—“France, Aquitain, Normandy, &c.”—over which he claimed an “absolute right” but had no actual power to rule. Ibid.) The same held true even in discrete areas within his kingdom that were temporarily outside his control. See id., at 18a–18b, 77 Eng. Rep., at 399 (if “enemies” were to “possess” a “castle or fort,” their children would not be born “under the King’s ligeance”). And the same held true for ambassadors (and their families), who were considered—by a fiction of extraterritoriality—to remain on foreign soil and thus “under the ligeance” of their home country. Id., at 18a, 77 Eng. Rep., at 399; see also Schooner Exchange v. McFaddon, 7 Cranch 116, 138–139 (1812) (Marshall, C. J., for the Court).
In all other respects, however, the sovereign’s power—and his claim to the people’s allegiance—was complete. A foreign mother could enter the British Isles, give birth, and leave with her child the very next day, and that child would remain a British subject. Why? Because the child owed an implied allegiance to the sovereign who protected him at his
This view crossed the Atlantic with the colonists—and was adopted with little fanfare after the Revolution, as “subject[s]” of the sovereign became “citizens” of the States. See State v. Manuel, 20 N. C. 144, 152 (1838). This common law of citizenship—known as jus soli, or right of the soil—prevailed in “each and all of the states” after American independence, and continued to emphasize reciprocal “allegiance” and “protection.”
When the newly independent Americans confronted a novel situation, unknown to England—that of the quasi-sovereign Indian tribes—they turned to the principles of the common law. Did the tribes truly govern their people? Or were their people wholly subsumed within the United States? Echoing Coke and Blackstone, Chancellor Kent answered with the common law. “We have purchased the greater part of their lands, destroyed their hunting grounds, . . . and gradually abridged their native independence,” Kent acknowledged. Goodell v. Jackson ex dem. Smith, 20 Johns. 693, 711 (N. Y. Ct. Corr. Errors 1823). Even so, he reasoned, the “United States ha[s] never dealt with those people, within our national limits, as if they were extinguished sovereignties.” Id., at 714. They were instead “dependent nations” that maintained “dominion[s]” of their own. Id., at 712, 714. Indians born under those dominions, he concluded, were not “citizens or subjects of the United States,” but members of “alien and sovereign tribes.” Id., at 715. Others followed Kent’s lead, see J. Kettner, The Development of American Citizenship, 1608–1870, pp. 294–296 (1978) (Kettner), all the while emphasizing that the “very few exceptions” to the sovereign’s power were narrow indeed, H. Binney, Alienigenae of the United States 16 (2d ed. 1853) (Binney).
In a Nation of immigrants—an “asylum for mankind,” in Thomas Paine’s words—jus soli’s broad scope took on particular importance. Common Sense (1776), in 1 Writings of Thomas Paine 101 (M. Conway ed. 1894). The young Republic attracted tens of thousands of émigrés from the Old World—Scotch-Irish, French, German, Welsh, and many more, some of whom hoped to stay only a short time, others of whom hoped never to leave. See M. Jones, American Immigration 64–91 (1960). No matter their intentions,
B
The common law “made no distinction on account of race or color.” United States v. Rhodes, 27 F. Cas. 785, 789 (No. 16,151) (CC Ky. 1866) (Swayne, J.). But the slave States did. As the Civil War approached, more and more Southern States sought to deny citizenship to black Americans—and openly rejected the common law to reach that result. See Kettner 320–324. It was “not the place of a man’s birth” that made him a citizen, these States said, “but the rights and privileges he may be entitled to enjoy.” Amy v. Smith, 11 Ky. 326, 332 (1822). On that view, “[t]he prejudice . . . of caste” was “unconquerable.” Bryan v. Walton, 14 Ga. 185, 202 (1853). Not even emancipation could “confer citizenship,” these States held, because free African Americans still suffered from “social and civil degradation” based on “the taint of blood.” Id., at 198. With the common law abandoned, almost 500,000 free black Americans in the South were left little more than “strangers.” African Methodist
In the odious decision of Dred Scott v. Sandford, this Court imposed the Southern States’ beliefs onto the Nation. 19 How. 393. Chief Justice Taney, writing for the Court, concluded that “the words ‘people of the United States’ and ‘citizen[s]’” had an unexpressed (and atextual) racial component—one that excluded all those descended from slaves. Id., at 419. Even if Massachusetts or Connecticut chose to grant citizenship to the freedmen, they still could not participate in national affairs. See id., at 422–423. They were “born in the country,” Chief Justice Taney acknowledged, and thus “did owe allegiance to the Government”—the precise criteria for citizenship at common law. Id., at 420. But they were “not included, and were not intended to be included, under the word ‘citizens’ in the Constitution.” Id., at 404. For them, blood, not soil, was made the rule.
Dred Scott was met with shock. Ever since “the Declaration of Independence,” Justice Curtis wrote, “the received general doctrine has been, in conformity with the common law”—that all “free persons born within” a State are “citizens of the United States.” Id., at 576–577 (dissenting opinion). Justice McLean said much the same. “Being born under our Constitution and laws,” he explained, “make[s] him a citizen.” Id., at 531 (dissenting opinion). Northern newspapers condemned Dred Scott as “a wicked and false judgment,” “an atrocious doctrine,” “a deliberate iniquity,” and a “willful perversion.” D. Potter, The Impending Crisis, 1848–1861, p. 281 (1976). The decision was, in Lincoln’s famous words, an “astonisher in legal history.” 3 Writings of Abraham Lincoln 55 (A. Lapsley ed. 1905).
Abolitionists swore to undo what the Court had done. “By birth,” Frederick Douglass insisted, “we are American citizens.” 2 Life and Writings of Frederick Douglass 259 (P. Foner ed. 1950). “The Constitution knows all the human inhabitants of this country as ‘the people,’” he explained, no
C
The Court had overruled the common law, but the people—eventually—would overrule the Court. It took more than a decade—and the addition of names such as Antietam, Gettysburg, and Chancellorsville to our national canon—but Douglass’s vision of “our common humanity” would be fulfilled.
The Reconstruction Congress did not start from scratch. In the midst of the Civil War, President Lincoln’s Attorney General, Edward Bates, had issued a landmark opinion that sought to displace Dred Scott in favor of the common law. Citing the key authorities (among them Calvin’s Case and
A year after General Lee’s surrender at Appomattox, Congress sought to turn Bates’s opinion into law. The
The specter of Dred Scott, however, loomed over Congress’s efforts. Opponents of the Act contended that Congress could not grant such expansive citizenship (and set aside this Court’s precedent) by statute alone. See, e.g., Cong. Globe, 39th Cong., 1st Sess., at 497–498 (Sen. Van Winkle); id., at 499 (Sen. Cowan). To quiet those concerns—and to permanently enshrine the common law in the Constitution—Congress turned to the Fourteenth Amendment.
III
A
What the Civil Rights Act began, the Fourteenth Amendment would finish. Like the Act, the Fourteenth Amendment was intended to repudiate Dred Scott. This time, however, the goal was even grander—to put the “great question of citizenship” “beyond the legislative power” altogether, to settle the issue once and for all. Cong. Globe, 39th Cong., 1st Sess., at 2891, 2896 (Sen. Howard).
The Fourteenth Amendment achieved its aim. The Citizenship Clause mirrored the common law’s criteria for
Even the language of the Clause is that of the common law. Lynch held that American citizenship extended to “all persons born within the jurisdiction of the United States.” 1 Sand. Ch., at 668. So did Chancellor Kent. See
That law was clear. Any child who was born “under the protection of” the United States—that is, any child for whom no extraterritorial fiction applied—was made a citizen, for he owed a natural “allegiance” (and thus “obedience”) to the Nation. Lynch, 1 Sand. Ch., at 668; see Cong. Globe, 39th Cong., 1st Sess., at 570 (Sen. Morrill) (the “essential elements of citizenship” are “allegiance on the one side and protection on the other”).
B
Even putting the common law to one side, the Citizenship Clause’s key phrase—“subject to the jurisdiction”—requires the same result. The word “jurisdiction” was hardly
In 1868, as today, “jurisdiction” (in the context of a sovereign) refers to the “[p]ower of governing or legislating.” N. Webster, An American Dictionary of the English Language 732 (C. Goodrich & N. Porter eds. 1865); see also, e.g., 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 671 (1879) (“The authority of government; the sway of a sovereign power”). To be “subject to” the jurisdiction of the United States, then, is to “liv[e] under” its “dominion,” J. Worcester, Dictionary of the English Language 1435 (1860), a meaning reinforced by the Clause’s territorial focus on those born “in” the United States. The Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory.
The scope of that power was well settled in 1868, largely by “the celebrated case” of Schooner Exchange v. McFaddon, 7 Cranch 116. See H. Wheaton, Elements of International Law §96, p. 154 (8th ed. 1866). Expounding on “general principles,” Chief Justice Marshall explained that “jurisdiction” referred to “the full and complete power of a nation within its own territories.” 7 Cranch, at 136. That “absolute” power was “susceptible of no limitation not imposed” by the nation itself. Ibid. All sovereigns, however, were understood to have impliedly waived their jurisdiction in “certain peculiar circumstances”—in essence, where exercising jurisdiction would “degrade the dignity” of “foreign sovereigns.” Id., at 136–137. As in the context of jus soli, those peculiar circumstances arose most frequently in the case of “foreign ministers.” See id., at 138–139. “[E]very sovereign would hazard his own dignity,” after all, if his officials abroad were made to “owe temporary and local allegiance to a foreign prince.” Id., at 139.
The ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions. The same groups included (and excluded) by jus soli were included (and excluded) by the conventional understanding of jurisdiction. Excluded by both were the children of foreign ministers and members of 19th-century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign).
No such intersovereign concerns apply to children born of parents unlawfully or temporarily present in the United States; no foreign sovereign would “have any motive for wishing” them outside this Nation’s authority. Id. Those children are thus subject to the jurisdiction of the United States. They satisfy both elements of the Citizenship Clause: they are “born . . . in the United States” and “subject to the jurisdiction thereof.” Under the Constitution, they are citizens at birth.
Our precedent—the seminal case of United States v. Wong Kim Ark, 169 U. S. 649 (1898)—confirms this rule.
A
For nearly two decades after the Fourteenth Amendment’s ratification, the Executive Branch viewed the Citizenship Clause as “simply an affirmance of the common law of England and of this country.” Memorandum of Secretary of State H. Fish to Mr. Marsh (May 19, 1871), in 2 Digest of the International Law of the United States §183, p. 394 (F. Wharton ed. 2d ed. 1887) (Digest). Under that view, “the status of citizenship” was “fixed by the place of nativity, irrespective of parentage”—with the limited exception of “the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality.” Ibid.
In 1872, for instance, Attorney General George Williams was called upon to determine the citizenship of a child born of Austrian parents only “temporarily residing” in New York City. 14 Op. Atty. Gen. 154. Citing the Citizenship Clause (and Bates’s 1862 opinion), Williams explained that “a person born in this country, though of alien parents who have never been naturalized, is, under our law, deemed a citizen of the United States by reason of the place of his birth.” Id., at 155. Thus the child “is a native of this country,” Williams concluded, “and as such was originally clothed with American nationality.” Ibid. Secretary of State Hamilton Fish agreed. See Memorandum to Baron Lederer (Dec. 24, 1872), in 2 Digest 395–396. So did federal courts. Like the Executive Branch, they saw the Clause as merely “declaratory of the rule of the common law.” McKay v. Campbell, 16 F. Cas. 161, 165 (No. 8,840) (DC Ore. 1871); see also In re Look Tin Sing, 21 F. 905, 908–910 (CC Cal. 1884) (Field, J.); Ex parte Chin King, 35 F. 354, 355–356 (CC Ore. 1888).
This new theory focused on the parents’ status, not the child’s. It was only if a child’s parents were “domiciled in the United States,” they argued, that the child was “internationally subject to the jurisdiction of the United States,” as the Citizenship Clause (they said) required. Id., §12, at 41–42 (emphasis added); see also A. Morse, A Treatise on Citizenship 248 (1881). These writers acknowledged that the common law took a different view, see id., at 238, and n. 1, and acknowledged “that the language of the [F]ourteenth [A]mendment . . . is very broad,” A. Morse, Citizenship of Children of Aliens Born in the United States, 30 Albany L. J. 420 (1884). But they insisted that jus soli had been “universally” rejected by other nations and had not been made part of the Constitution. Ibid.
B
In Wong Kim Ark, this Court rejected that view, concluding that no “rule of international law” had qualified “the ancient rule of citizenship by birth within the dominion.” 169 U. S., at 667.
At issue was the citizenship of Wong Kim Ark, born in San Francisco to Chinese parents. See id., at 652. In Wong’s telling, the case was not close. “[T]here can be no
In an opinion by Justice Gray, the Court rejected the Government’s position. Justice Gray explained that the Fourteenth Amendment was merely “declaratory” of the “fundamental rule of citizenship by birth” that prevailed at common law. 169 U. S., at 688. That “same rule,” he wrote, “was in force in all the English Colonies”—“and continued to prevail under the Constitution.” Id., at 658. And its contours were clear. It excluded those recognized as exempt “from the jurisdiction of this country”—the “children of ambassadors” and other representatives of foreign sovereigns, as well as those born in the “alien nations” of Indian tribes. Id., at 675, 681–683, 693.
All others were citizens at birth, whether born to permanent residents or temporary visitors. See id., at 676, 687–688. Indeed, Justice Gray noted, no one had even “contested” this conclusion for “more than fifty years after the adoption of the Constitution”—until the matter was
Justice Gray then turned to Schooner Exchange to confirm what the common law made clear. “The words . . . ‘subject to the jurisdiction thereof,‘” he wrote, “must be presumed to have been understood and intended by the Congress . . . in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange.” 169 U. S., at 687. On that understanding, aliens who traveled to the United States for “business or pleasure” received no “exemption from the jurisdiction of the country.” Id., at 686. To the contrary, they were subject to that jurisdiction for as long as they remained here—and any children born to them were American citizens under the
What the Court held in Wong Kim Ark was simple: the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States. Not surprisingly, then, in the 128 years since, we have repeatedly understood the rule of Wong Kim Ark to guarantee citizenship to all children born in the United States and subject to its power. See, e.g., United States ex rel. Hintopoulos v. Shaughnessy, 353 U. S. 72, 73 (1957); INS v. Rios-Pineda, 471 U. S. 444, 446 (1985). We see no reason to depart from that view today.
The Government and the principal dissent share many of our premises. They agree that the Citizenship Clause was intended to incorporate the “background principles” of the common law. Brief for Petitioners 15-16; see, e.g., post, at 2-3, 86 (THOMAS, J., dissenting). They agree that, under the common law, “citizenship turns on allegiance.” Brief for Petitioners 40; see, e.g., post, at 1, 17-18 (THOMAS, J., dissenting). And they agree that ”Dred Scott departed from that traditional, allegiance-based view of citizenship“—a departure that Congress “repudiated” in the Clause. Brief for Petitioners 16-17; see, e.g., post, at 1-2, 26-27 (THOMAS, J., dissenting).
Where the Government and the principal dissent err is with their definition of “allegiance.” They concede that Calvin‘s Case and Blackstone state the rule that prevailed before the Declaration of Independence—that a natural “allegiance” arises for all children who are “born here . . . under the protection of the sovereign.” Tr. of Oral Arg. 64-65, 136; see post, at 75-76 (THOMAS, J., dissenting). Yet according to the Government and the principal dissent, “the United States’ conception of allegiance“—at some unspecified point in time—broke “from Great Britain‘s.” Brief for Petitioners 16. (The Government has variously dated this change to the late-18th century, see Tr. of Oral Arg. 137, the early-19th century, see id., at 26, 76, and the Reconstruction era, see id., at 3; the principal dissent declines to offer a date.) Natural allegiance, they contend, was no longer sufficient for citizenship; some greater quantum of allegiance was required.
How much? The Government offers a smorgasbord of formulations: “primary allegiance,” “sufficient allegiance,” “full allegiance,” “requisite allegiance.” Brief for Petitioners 12, 14, 15, 17, 19, 21, 23, 29, 32, 42. (The principal dissent, for its part, seems to have settled on “primary allegiance.” Post, at 17, 22, 25, 29, 58.) What all these formulations
The trouble is that there is scant evidence for this dramatically revisionist view. Certainly no one said that such a change had occurred. Indeed, even as the antebellum Americans hotly debated whether the Declaration of Independence had abrogated one aspect of the British common law—that natural allegiance was indefeasible, no matter a person‘s desire to expatriate—all agreed that such allegiance was owed in the first place. See Lynch, 1 Sand. Ch., at 657 (“perpetual allegiance . . . does not stand upon the same reason or principle as the common law doctrine of allegiance by birth“); Murray v. Schooner Charming Betsy, 2 Cranch 64, 120 (1804) (noting unsettled question of whether an American citizen “can divest himself absolutely of” his citizenship, but simply presuming that any “person born within the United States” was a natural-born citizen).
The only evidence the Government and the principal dissent can muster to show that some alternative (“primary“) conception of allegiance displaced the common law is a “funeral oration” for President Lincoln. Brief for Petitioners 23; see post, at 22-23. Ahistorical modifiers aside, the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868.3 Sources from that period instead defined “allegiance by birth” just as the British did—as “the tie or duty” owed by one who is “born within the dominions
Of course, some wished to change the rule. But even those who wished to limit jus soli did not deny that children born of temporary visitors owed natural allegiance to the United States. They instead thought that domicile might serve as a “reasonable qualification” to the common law rule (namely, that citizenship derives solely from the “[n]atural allegiance” owed “to the government of the territory of a man‘s birth“). J. Story, Commentaries on the Conflict of Laws §§21, 48, pp. 22, 48 (1834) (Story).
The principal dissent (but not the Government) at times seems to directly equate domicile and national citizenship. See post, at 9-10, 12-14, 40-41. That is wrong. “It is, in fact, a general axiom of international law, that there may be domicil where there is no nationality, and nationality where there is no domicil.” F. Wharton, Conflict of Laws §40a, p. 47 (1872); see also A. Cockburn, Nationality 204 (1869). After all, one who establishes a domicile in a new country does not automatically become a citizen thereof. (He has to be naturalized.) Nor does he automatically lose his prior citizenship. (He has to be expatriate.) Thus, the principal dissent ultimately acknowledges that domicile alone was insufficient to make someone “formally” a “citizen.” Post, at 9.
Of course, domicile was relevant to naturalization and expatriation. But that by no means suggests it was a prerequisite to national citizenship at birth. The principal dissent‘s reliance on cases concerning changes to a person‘s state citizenship is thus misplaced. See, e.g., post, at 6-7. And the Government‘s remaining support for the idea that a domicile “qualification” to birthright citizenship was “widely accepted” in the United States before the Civil War,
The congressional debates over the
For a Congress intent on putting the question of citizenship “once and forever [to] rest,” Cong. Globe, 42d Cong., 1st Sess. 575 (1871) (Sen. Trumbull), a domicile-based qualification would have introduced significant uncertainty. Unlike the easy-to-apply common law, it would be “difficult, if not impossible, to lay down any general rule” of domicile-based citizenship, as domicile “often depend[s] upon the circumstances of each case, the combinations of which are
If Congress intended to hinge citizenship on each individual‘s domicile—a question that “is sometimes a matter of great difficulty to decide,” Story §45, at 43—it is reasonable to expect there would have been at least some discussion of the topic. Yet the word “domicile” appears just twice in the discussion of the relevant provision of the Civil Rights Act. See Cong. Globe, 39th Cong., 1st Sess., at 1160 (Rep. Shellabarger); id., at 1117 (Rep. Wilson). And it appears in only one speech from the Citizenship Clause debates—as part of an explanation of why State citizenship is distinct from national citizenship under the Constitution. See id., at 3031-3032 (Sen. Henderson).
Perhaps recognizing the absence of ratification-era support for a domicile-based rule of national citizenship, the Government and principal dissent both emphasize sources from after the ratification of the
In any case, postenactment history cannot override the text. If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design. Words appearing frequently in the Executive Order—“mother,” “father,” “lawful,” “temporary“—are absent from the Clause. For a simple reason: they did not matter. And while the Clause does ensure state citizenship attaches for U. S. citizens in “the State wherein they reside,”
When the principal dissent does grapple with the operative legal text—“subject to the jurisdiction” of the United States—it has little to say. It argues only that a person is “subject to the jurisdiction of the government of his domicile.” Post, at 3. But that is not the question. The question is whether a person is “subject to the jurisdiction” of the government of the country in which he is physically present, even if he is only there temporarily. He is (unless he falls under one of the familiar exceptions, such as for ambassadors). For the reasons given by Chief Justice Marshall in Schooner Exchange, the United States exercises
To avoid these problems, the principal dissent spends much of its time on the text of the
Neither theory works. As to the principal dissent, it is simply not true that domicile in a new nation severs one‘s ties to the old one. See Story §540, at 451 (“Nations
For the dissents and the Government, Wong Kim Ark is essentially irrelevant. They attempt to narrow that precedent by noting that the Court‘s opinion repeatedly referred to the domicile of Wong‘s parents. That is true. But “the reasoning underlying” the holding of Wong Kim Ark cannot
In the end, it is the dissent in Wong Kim Ark that makes the strongest case for a domicile-based theory of American citizenship. There, Chief Justice Fuller resisted the application of the English common law rule because it “recognized no exception in the instance of birth during the mere temporary or accidental sojourn of the parents.” 169 U. S., at 718. He admitted that, in England, “the question of domicil[e] is entirely distinct from that of allegiance” because “[t]he one relates to the civil, and the other to the political, status.” Ibid. But he believed that “a different view as to the effect of permanent abode on nationality ha[d] been expressed in this country.” Ibid. Under this different view, the
* * *
Again and again, the dissents cast the common law as “feudal,” “medieval“—a remnant of “the darkness of the middle ages.” Post, at 4-5, 45, 54, 64, 75-78 (opinion of THOMAS, J.); see post, at 1 (opinion of GORSUCH, J.); post, at 2, 4, 27 (opinion of ALITO, J.).
Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the
The judgment of the District Court for the District of New Hampshire is affirmed.
It is so ordered.
I join the Court‘s opinion in full. I write separately to respond to some of the themes in the principal dissent. Despite his longstanding endorsement of a “colorblind” Constitution, JUSTICE THOMAS now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to “freed slaves such as Dred Scott,” post, at 56, and those who shared with them certain characteristics, post, at 1 (“no other homeland“); post, at 21 (“called America home“). It is for this reason, he says, that “children who were born in the United States but [to parents] not domiciled here” are not entitled to claim birthright citizenship. Post, at 3-4. But that narrow vision of the
I
It is common ground that the
In the aftermath of the Civil War, those who championed the
A
Consider, first, the voices of those outside the chambers of the Senate and the House of Representatives, whose advocacy and organizing culminated in the Fourteenth
The odds were long and the stakes were high. Indeed, around the time they gained their freedom, former slaves faced a crisis similar in relevant respects to the American immigrant experience. With little in terms of possessions and even less in terms of opportunities to make a living for themselves and their families, freed Blacks were not ushered warmly into the broader community (with apologies or compensation), set up for success, or even given the rights and privileges others enjoyed. Though they‘d tilled the soil for centuries and had labored to build every building, once freed, they were basically treated as “strangers” in a not-so-strange land.4
This was not for lack of trying to survive and belong on the freedmen‘s part. They constructed churches, schools, and mutual-aid societies—safe zones amidst America‘s racialized social and economic order.5 Outside those enclaves, however, freed Blacks were characterized as unassimilable and incapable of full civic participation.6
One solution that gained traction in the early 1800s was to physically separate the freedmen and other Black people from the general polity. Antislavery Northerners and pro-slavery Southerners found common cause in the idea that freed Blacks would surely “be happiest in a black-led republic, beyond the contempt of and competition with white
Meanwhile, many States pushed the envelope, passing “Black Laws” (in the pre-War North) and “Black Codes” (in the post-War South), intending to make it difficult for freed Blacks to live and work there.13 Violence, too, played a significant role in the isolation effort. Those who opposed abolition banded together with those who resented the extra competition in the job market to form marauding mobs,
Critically for present purposes, these visionaries already understood themselves to be American citizens. “The refrains ‘we are Americans’ and ‘we are citizens’ echoed in conferences throughout the North.”20 Moreover, “[b]irthright figured importantly” as “delegates frequently characterized their status as that of native-born citizens.”21 The
The famed orator Frederick Douglass was one of these delegates. Capturing the spirit of the moment, Douglass proclaimed that Chief Justice Taney—the author of the majority opinion in Dred Scott v. Sandford, 19 How. 393 (1857)—“[could] do many things, but he [could not] . . . change the essential nature of things.”23 In the absence of the artificial evils of slavery and racial subordination, Douglass explained, “the glorious birthright of our common humanity, will become the inheritance of all the inhabitants of this highly favored country.”24
Do note this: The citizenship thesis of the Colored Conventions was thus not that some new status should be created and conferred on freed Blacks. It was instead that
Such universalist appeals were a conscious choice. Yes, Black Americans had suffered a singular wrong. And yes, they had “‘fought and bled‘” for the Union, paying a steep price for their freedom.28 But the delegates did not rest on these laurels. Rather, they drew upon the moral and political force of the universal principles that were already core to the Nation‘s identity.
That bears repeating: Freed Blacks did not advocate for a unique set of rules that catered only to their situation. Nor did they seek to advance their own position relative to, or at the expense and exclusion of, other marginalized groups. Instead, those whose gatherings helped galvanize
During his U. S. Senate candidacy, Abraham Lincoln developed a similar vision. In the lead-up to the now-famous Lincoln-Douglas debates, Lincoln explained that the promise of liberty and equality in the Declaration of Independence “was held sacred by all, and thought to include all.”31 Lincoln expressly and intentionally linked the fate of Black Americans and immigrant groups (“among us perhaps half our people who are not descendants at all” of the Founders), and noted that the Nation’s future hinged on a universal definition of citizenship that excluded neither.32 He explained that the Declaration’s promise that “all men are created equal” was the “electric cord . . . that links the hearts of patriotic and liberty-loving men together,” regardless of race or descent.33
The case was made. First, there was war. And then, the delegates’ (and Lincoln’s) universalist view of citizenship made its mark on the Constitution.
The
But Senator Trumbull changed his mind. The day after he submitted that first proposal, he requested to “withdraw [the original] and . . . offer another in lieu of it to the same purport, changing the phraseology.”35
Consistent with the views espoused by activists, Trumbull’s new proposal adopted a distinctly universalist register: “All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without any distinction of color.”36 This is the language Congress would eventually enact as part of the
Senator Trumbull’s progression from specific to universal was more than mere word choice. In the face of the virulent anti-immigrant—and, in particular, the anti-Chinese and the anti-Romani—sentiment of that era, language targeting just freed former slaves would have been the path of least (or less) resistance. But Senator Trumbull, along with those colleagues who took up the same mantle during the
Do not miss this context. Throughout the mid-19th century, Chinese immigrants to America were often portrayed as “‘coolies,’” a racist slur implying indentured servitude and allegiance to a Chinese master.37 Some Members of Congress brought that sentiment to the
Undeterred, Senator Cowan would warn again—this time during debates on the
The debates went similarly with respect to the Roma people, who were referred to at the time as “gypsies.”45 When asked whether native-born Romani children would be birthright citizens of the United States under the proposed
During the ratification debates, Senator Cowan took aim at the Roma people too, characterizing them as undeserving of birthright citizenship because they “wander[ed] in gangs,” “infest[ed] society,” and “impos[ed] upon the simple and weak everywhere.”49 And again, Senator Conness dismissed Senator Cowan’s prejudices: “The only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared, than that of Gypsies. It was an invasion of rebels [at Gettysburg].”50
When ratified, the Citizenship Clause thus vindicated the universalist vision of the delegates at the Colored Conventions and their allies in Congress. Far from the principal dissent’s representations, freed Blacks did not receive citizenship as a reward for their military service or for having, through no choice of their own, “no other homeland [and] no allegiance to any foreign power.” Post, at 1. Instead, the Amendment recognized their rightful claim to birthright citizenship simply and solely by virtue of their having been born on American soil. John Bingham—one of the Amendment’s principal architects—said this clearly: The “rights
With this recognition, the U. S. Constitution finally got an anticaste engine. And with it, the Nation gained a new font of legitimacy and vitality.
II
Fast forward 150 years, to 2026. Section One of the
But the Government’s view (which the principal dissent adopts) rejects this. Its argument focuses on the fact that the Citizenship Clause had a particular purpose: to reverse Dred Scott’s holding that Black Americans were not entitled to citizenship. See Brief for Petitioners 13–14; post, at 1–2. The reasoning is, in essence, that the
That contention is ahistorical for the reasons laid out in Part I, supra, and those explained in the Court’s opinion. In my view, it is also difficult to square with the notion of a “color-blind” Constitution, which has loomed large in the Court’s
Putting a finer point on this: When colonizationists objected to changing their norms to accommodate the equal citizenship and rights of freedmen, freed Blacks and their allies organized to push for a Constitution that would bring their own antisubordination vision to fruition. See supra, 7–10. That kind of ambitious transformation—nothing less than the remaking of the soul of a Nation beset by rank, entrenched race-based prejudice and inequity—did not come for free, or purely by the say-so of those who claimed to be “color-blind.” It required heavy lifting, a fundamental shift—the very thing for which the
So the principal dissent is wrong to complain that the Court “has repurposed the Fourteenth Amendment to protect . . . rights that the Reconstruction Congress never contemplated.” See post, at 91. Delegates to the Colored Conventions drew upon their own experiences to successfully argue for a new Constitution—one that protected fundamental human rights, including an individual’s “‘right to own his body and mind’” and “the right of personal security and protection against injuries to our bodies or good name.”56 Thus, even in cases where the protagonist was not a Black American, this Court’s
* * *
After the Civil War, Fredrick Douglass frequently reflected on the events of the time through the lens of biblical stories. In one speech, Douglass described how God leveled Sodom and Gomorrah on account of sin, and how, in the aftermath, Abraham stood atop a nearby mountain to survey what remained. “[T]he orator used the image of Abraham
In the time since Douglass’s prescient observation, Americans have come to learn that fading memories are not the only danger. The distortion of historical facts—retellings that reimagine and repurpose past events to lend credence to misbegotten aims—may be an even greater threat.
Yet here we are. The Government, the principal dissent, and a handful of revisionist commentators now vigorously promote an interpretation of the Citizenship Clause that diverges sharply not only from what the text says, but also from the historical record as interpreted by the keepers of “the call of remembrance” (trained historians).59 What is more, this alternative account pitches Black Americans against immigrants when the advocates who promoted the
Of course, the ultimate irony is that for all the talk about the detestable Dred Scott decision, the Government and the principal dissent propose a return to its core tenet. Their bottom line is that, for certain people, being born on American soil will not suffice to confer citizenship. It is that odious conclusion that the Citizenship Clause plainly rejects, as the Court explains. Ante, at 26. I add only that the
Executive Order No. 14160 establishes new exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. 90 Fed. Reg. 8449 (2025). The Court today holds that the Order violates the
I
I first consider plaintiffs’ statutory argument. The statutory analysis is straightforward, and the Court could have (and in my respectful view, should have) decided the case on that narrow ground.
Initially enacted in 1940,
This Court’s 1898 Wong Kim Ark decision interpreted the “subject to the jurisdiction” language of the
In 1940 and 1952, Congress employed the exact language from the
Because
Importantly, moreover, from the time of those statutory enactments in 1940 and 1952 all the way through 2025, the Executive Branch consistently interpreted
In 2025, however, Executive Order No. 14160 sought to add two new exceptions to birthright citizenship for children born to foreign citizens who are either illegally or temporarily in the United States. In doing so, the Executive Order goes beyond what
Unless and until Congress enacts such legislation, the Executive Order contravenes the federal statute,
II
I next address the
That is another reason why, in my respectful view, the Court should have decided the case on the narrow and straightforward statutory ground. In any event, because the Court addresses the Constitution, and because I respectfully disagree with its analysis of that highly consequential issue, I too will briefly address it.
Ratified in 1868, the Citizenship Clause of §1 of the
In 1898, as noted above, Wong Kim Ark interpreted the
But Wong Kim Ark’s treatment of the exceptions as a “closed set” is incorrect, in my view. Considering the four exceptions as a permanently frozen or closed set as of the
To spell that out: The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles—both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. Stated otherwise, the “meaning of rules is constant. Only their application to new situations presents a novelty.” A. Scalia & B. Garner, Reading Law 86 (2012); see also Heller v. District of Columbia, 670 F. 3d 1244, 1275 (CADC 2011) (Kavanaugh, J., dissenting); A. Scalia, A
In
So ordinarily, both the relevant constitutional rule and the constitutional exceptions (as of 1787, 1791, or 1868, as the case may be) apply to new circumstances. As the Court has said before, “[d]iscerning and developing the law in this way is a commonplace task for any lawyer or judge.” Id., at 692 (quotation marks omitted). Indeed, at oral argument in this case, many Members of the Court explored that
The Citizenship Clause of §1 of the
Here, that interpretive principle would support additional exceptions for children born to foreign citizens unlawfully or temporarily in the country.5
First, significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the
And second, those two categories of foreign citizens—namely, those unlawfully or temporarily in the country—are relevantly similar to the four categories of persons
All of that said, as noted above, Congress in 1940 and 1952 enacted a statute,
This Court’s decision in Dred Scott v. Sandford, 19 How. 393 (1857), would have permanently denied citizenship to blacks as “a subordinate and inferior class.” Id., at 404–405. After the Civil War, the Reconstruction Congress overruled Dred Scott, first with the Civil Rights Act of 1866, then with the Citizenship Clause of the
Blacks were entitled to citizenship because they were Americans. They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority. They “fought and bled in the same battles,” “gained and gloried in the same victories,” and were “liable to be called upon to defend [America] in time of war” alongside every other citizen. 2 Life and Writings of Frederick Douglass 256, 266 (P. Foner ed. 1950) (Douglass). The Citizenship Clause thus guaranteed them the “dignity and glory of American citizenship,” so as to ensure that they would never be treated as second class under the law.
The same could not be said for the children of foreign temporary visitors. Foreign temporary visitors were attached to their home country, lacked similar bonds to this country, and would not be called upon in time of war. Americans, consistent with their settler ethos, believed that citizens were the people who called a place home. Accordingly, domicile—a person’s legal home—played a key role in both state and national citizenship in America. A person was a “citizen” of the state where he had his “domicil.” Barber v. Barber, 21 How. 582, 599 (1859). When foreigners temporarily visited, their “national character” was unchanged. The Venus, 8 Cranch 253, 278–279 (1814). Such visitors were “strangers,” not “subjects.” Id., at 278. A person born here but domiciled in a foreign land was therefore considered “as much a stranger to the country as his father.” 1 H. St. George Tucker, Commentaries on the Laws of Virginia 57 (1836) (Tucker).
That is why, when Dred Scott went to court, he argued that to be a “citizen,” “it is only necessary that he should have acquired a domicil.” Brief for Plaintiff in Dred Scott v. Sandford, D. T. 1855, No. 7, p. 6. (Brief for Dred Scott). After this Court held that Scott was not a citizen because he was black, Republicans in Congress, such as Representative John Bingham, stated that a person was a citizen if he was “born and domiciled” in the United States. Cong. Globe, 35th Cong., 2d Sess., 983 (1859). Scott was a citizen, in their view, because he was born to Americans, not to “temporary sojourners.” Cong. Globe, 35th Cong., 1st Sess., 210 (1858) (statement of Rep. Bliss). As Frederick Douglass had put it, the freedmen sought citizenship “not as aliens nor as exiles,” but as “Americans.” 2 Douglass 255 (emphasis added).
Congress implemented the principle that citizenship follows birth and domicile in the Civil Rights Act of 1866 and
A person was subject to the jurisdiction of the government of his domicile. “Domicil” was “the foundation of jurisdiction over persons.” 1 T. Twiss, The Law of Nations 239 (1861) (Twiss). The government of a person’s domicile had broad power over that person, including with respect to his personal affairs, his conduct abroad, his personal taxes, and the mutual duties of protection and allegiance. So, as the Senator who introduced the Citizenship Clause explained, “the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction . . . the same jurisdiction in extent and quality as applies to every citizen of the United States now.” Cong. Globe, 39th Cong., 1st Sess., 2895 (1866) (statement of Sen. Howard). After all, Congress “would have no right to make citizens” of “persons temporarily resident.” Id., at 572 (statement of Sen. Trumbull).
The Citizenship Clause was consistently interpreted not to apply to the children of foreign temporary visitors, who were by definition not domiciled in the United States. Regardless of administration or party, the Federal Government for decades after ratification regularly denied claims to citizenship by children who were born in the United
The Court offers a different account. American citizenship, the Court says, was based on a medieval English “feudal” principle, according to which each person “owed personal service to the lord of the soil” as his “master“—a perpetual servitude that was “born with the child and only ended in the grave.” 2 Cong. Rec. 3282 (1874) (statement of Rep. Cox). Americans, the Court says, adopted this feudal principle as a rule of American citizenship “with little fanfare.” Ante, at 4. Then, according to the Court, the Reconstruction Congress codified that feudal principle with the words “not subject to any foreign power” in the Civil Rights Act and “subject to the jurisdiction thereof” in the Citizenship Clause. Then, the Court says, the Clause’s meaning
With due respect, the Court’s account is not historically accurate. The Court says that the Citizenship Clause incorporated the English feudal principle that subjects owed lifetime servitude to the King who owned the soil on which they were born, but Americans—unsurprisingly—rejected this feudal principle. The Court’s theory of American citizenship is based on the opinion of a New York assistant vice chancellor in an inheritance dispute called Lynch v. Clarke, 1 Sand. Ch. 583, 584–585 (N. Y. Ch. 1844). Ante, at 6–10. But, the assistant vice chancellor’s reasoning, whatever it was worth, was not even followed in New York by the time of the Citizenship Clause. Finally, the Court reasons that dicta in Wong Kim Ark settled the meaning of the Clause. But, Wong Kim Ark itself emphasized that its holding was limited to persons domiciled in the United States. And, scholars and government officials continued to agree after Wong Kim Ark that the Citizenship Clause did not extend to the children of foreign temporary visitors. The rule remained what it always was: A child born on American soil of “a stranger or traveler passing through the country, or temporarily residing here,” was “not a citizen.” H. Black, Handbook of American Constitutional Law 634 (3d ed. 1910).
The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens. In doing so, the Court adds to the sad history of the
A
I begin with early American practices related to citizenship and nationality, which inform what the Citizenship Clause means.
In America, you were generally a citizen if you were born here and this was your home. The legal word for home was domicile. The concepts were so linked as to be taken as effectively synonymous at times, such that Justice Bushrod Washington could say: “[C]itizenship means domicil—home—permanent residence.” Gardner v. Sharp, 9 F. Cas. 1196, 1199 (No. 5,236) (CC NJ 1826). The same correspondence has persisted throughout American history. See, e.g., Harding v. Standard Oil Co., 182 F. 421, 423 (CC ND Ill. 1910) (“‘Domicile’ and ‘citizenship’ are substantially synonymous terms, in most cases“). Citizens were not the people who were temporarily passing through a territory or who happened to be born within it. Citizens were the permanent members of the body politic—the people whose roots were in a place, who called that place home, and who would, if necessary, go to war for that place. The law of both state and national citizenship reflected this principle.
Domicile was critical for state citizenship. As Chief Justice Marshall explained, a person was “a citizen of that State” in which “he has a fixed and permanent domicil.” Brown v. Keene, 8 Pet. 112, 115 (1834); accord, e.g., Eberly v. Moore, 24 How. 147, 157 (1861) (“citizens” if “domi-cil[ed]“); Barber, 21 How., at 599 (“citizenship” by “domicil“); 3 J. Story, Commentaries on the Constitution of the United States 565 (1833) (Story on Constitution) (“change of citizenship” by “change of domicil“). Temporary visitors, it followed, were not citizens. When a person went to a new State on “a mere temporary visit, for a transient purpose,” Justice Story explained, he could not thereby “claim to be a citizen of such state.” Case v. Clarke, 5 F. Cas. 254, 255 (No. 2,490) (R. I. 1828). Instead, to become a “citizen of the
Domicile was also critical for national citizenship. As this Court stated the rule, when a person acquires a “domicil” in a nation, he “becomes a member of the new society, at least as a permanent inhabitant.” The Venus, 8 Cranch, at 278. Domicile played a role in determining someone’s “national character,” which would change whenever he “removes to a foreign country [and] settles himself there” with an “intention permanently to reside there.” Id., at 279. He was a “subject” of the nation where he was “domiciled.” The Pizarro, 2 Wheat., at 246. He “follow[ed] the character of that country, in war as well as in peace.” Ibid.; accord, e.g., H. Halleck, Elements of International Law and Laws of War 144 (1866) (explaining that, in war, national character turns on domicile); Hanger v. Abbott, 6 Wall. 532, 535 (1868) (same).
Thus, the view of the Executive Branch was that when a person acquires an American “domicil,” the law “enjoins upon other nations to respect him, in regard to protection, as an American citizen.” Letter from Sec. of State W. Marcy to B. Hülsemann (Sept. 26, 1853), in Correspondence Between the Secretary of State and the Charge D’Affaires of Austria Relative to the Case of Martin Koszta 18 (1853) (Koszta); see also Report of the Committee on Foreign Affairs Concerning the Rights of American Citizens in Foreign States, in Cong. Globe, 40th Cong., 2d Sess., App. 100 (1868) (Report of 1868). “Domicil confers a national character; it does not allow any one who has a domicil to decline the national character thus conferred.” Koszta 18. His status “remains as long as the domicil is retained, and is
This approach was consistent with this country’s settler ethos. Daniel Webster wrote that “no government has carried th[e] general presumption f[u]rther” than the United States that a person attains a new “national character” when he “settles” and “inten[ds] permanently to reside” in a nation. Report of Secretary of State D. Webster (Dec. 23, 1851), H. R. Exec. Doc. No. 10, 32d Cong., 1st Sess., 2 (1860) (Webster Report) (internal quotation marks omitted). Although some nations would lay claim to anyone born in their land or any descendant of their citizens, America viewed its people as the people who built their lives here. A person domiciled here “pays the same price for his protection as native-born or naturalized citizens pay for theirs“: “In war he shares equally with them in the calamities which may befall the country,” “his services may be required for its defence,” and “his life may be perilled and sacrificed in maintaining its rights and vindicating its honor.” Koszta 20. See also, e.g., The Dos Hermanos, 2 Wheat. 76, 98 (1817) (reasoning that “if upon his return to New-Orleans . . . he acquired a domicil there . . . he became a re[-]integrated American citizen“); The Mary and Susan, 1 Wheat. 46, 55, n. f (1816) (discussing “the effect of domicil . . . upon national character“).
The United States thus did not claim as a citizen every child born on its soil. Instead, pursuant to the principle that children followed their parents’ domicile, a child was a citizen of the place where his parents were domiciled. “[A] child born of foreign parents is not, on principles of natural reason, necessarily to be considered as a citizen of the country where he is born.” 1 Tucker 57 (emphasis deleted). If he was “born in the country,” but “both his parents were strangers not designing a permanent change of country,” then he was “as much a stranger to the country as his father.” Ibid. The rule was that “when a subject is traveling
The relationship between citizenship and domicile was a matter of general law from which the political branches could depart by statute, but those statutes also typically tracked the domicile rule. So, Congress retained the prerogative to set the terms for becoming a naturalized citizen and could impose requirements beyond domicile. See
Of course, birthplace closely correlated with domicile. Most children were born where their parents were domiciled and where, as a result, they were domiciled. The correlation was especially strong in the early 19th century, when crossing an ocean for a temporary visit was an unappealing prospect for pregnant women. Because birthplace was often a heuristic for domicile, it could be generally stated that children were citizens of their place of birth. See ante, at 3–6 (majority opinion). But, when the specific question arose, a “reasonable qualification” to that general statement excepted “children of parents, who were in itinere in the country, or abiding there for temporary purposes.” J. Story, Commentaries on the Conflict of Laws 48 (1834) (Story on Conflict of Laws).
B
The law of domicile is essential to understanding the citizenship provisions of the Civil Rights Act and the
1
Domicile meant legal home. The most common definition of domicile was residence with the intent to permanently remain. The Venus, 8 Cranch, at 278; accord, Story on Conflict of Laws §44, at 42 (“residence” and the “intention of making it the home of the party“). A person’s residence was the place where he lived. R. Phillimore, The Law of Domicil 16–18 (1847) (Law of Domicil). He had the intent to permanently remain in that place if he planned to stay there indefinitely. Ibid.
A person was not domiciled in a place simply because he was temporarily present or born there. A person’s presence in a place was merely “primâ facie” evidence that he was
A child took on the domicile of his parents. Because any person incapable of establishing his own domicile had the domicile “of that person, on whom he depends for support,” it followed that generally “minor children ha[d] the settlement of their fathers.” Inhabitants of Dedham v. Inhabitants of Natick, 16 Mass. 135, 139 (1819); accord, 1 Twiss 238–239. So, if a child was born to foreigners who did not permanently reside here, the child was not domiciled here. See Law of Domicil 69; A. Dicey & J. Moore, Digest of the Law of England 103 (1896) (Dicey & Moore).
Finally, each person had one and only one domicile. “[E]very person must have a domicil somewhere,” and every person “can have only one domicil.” Inhabitants of Abington v. Inhabitants of N. Bridgewater, 40 Mass. 170, 177 (1839); accord, D. Field, Outlines of an International Code 147 (2d ed. 1876) (Field). “The supposition, that a man can have two domicils, would lead to the absurdest consequences.” Inhabitants of Abington, 40 Mass., at 177. A person can reside and intend to permanently remain in only one place at a time. And, “[n]o person according to the Law of Nations is without a Domicil.” 1 Twiss 239; accord, Field 147. So, if someone did not intend to remain where he was at the moment, the law ascribed that person his last such place as his domicile.
a
Because a person could have only one domicile, domicile was a natural criterion for citizenship. In the 19th century, dual citizenship was considered highly undesirable, if not a contradiction in terms. “[T]he general view was that ‘no one can have two countries.‘” R. Mensel, Jurisdiction in Nineteenth Century International Law and Its Meaning in the Citizenship Clause of the Fourteenth Amendment, 32 St. Louis U. Pub. L. Rev. 329, 334 (2013) (alterations omitted). Dual citizenship led to a number of foreign-policy concerns, such as conflicting claims on the dual citizen during a war. Report of 1868, at 100; Inhabitants of Abington, 40 Mass., at 177–178. Therefore, the United States did not “recog-niz[e] a ‘double allegiance.‘” H. R. Rep. No. 784, 43d Cong., 1st Sess., 23 (1874). Instead, under “our law” a citizen was “bound to be ‘true and faithful’ alone to our Government.” Ibid.; accord, Savorgnan v. United States, 338 U. S. 491, 500 (1950) (“The United States has long recognized the general undesirability of dual allegiances“). Because each person had one and only one domicile, domicile-based citizenship avoided the problems attendant to dual citizenship.
The principle that citizenship followed domicile also made it more likely that citizens would be attached to their country. As Alexander Hamilton envisioned it, the citizenry were the people who would join together against any threat—“a large body of citizens . . . who stand ready to defend their own rights and those of their fellow-citizens.” The Federalist No. 29, p. 185 (C. Rossiter ed. 1961); see also Report of 1868, at 95. As Frederick Douglass saw it, citizenship belonged to those who “fought and bled in the same battles,” and “gained and gloried in the same victories.” 2 Douglass 266. And, as this Court put it, it is to “the citizen” that “the country must look for its safety.” United States v. Gettysburg Electric R. Co., 160 U. S. 668, 682 (1896). The “dignity and glory of American citizenship,” Plessy, 163
b
Once a person became domiciled in a place, he was considered no longer subject to any foreign power. A person was “subject” to the government of where he was “domiciled.” The Pizarro, 2 Wheat., at 246; see also Gilman v. Gilman, 52 Me. 165, 174 (1863); Inhabitants of Abington, 40 Mass., at 177–178. When a person traveled abroad, he remained subject to the power of his home nation—much like an American who travels abroad today remains subject to the power of this Government. As this Court explained,
c
American legal authorities described a person as “subject to the jurisdiction” of the government of his domicile. Hood v. Hood, 93 Mass. 196, 199–200 (1865). Then, as now, governments exercised different types of authority over temporary visitors and permanent residents. A government “do[es] not apply the same Laws in all matters to persons who are only temporarily resident, as it applies to persons who are permanently resident within its territory.” 1 Twiss 217. So, while a government applied, among other things, its ordinary criminal laws to temporary visitors, it had a wide range of further powers only with respect to persons domiciled within it. For that reason, when someone was present in a territory but had a domicile elsewhere, although he was still amenable to the laws of the host government, that government would describe him as not “subject to our jurisdiction.” Dorsey v. Dorsey, 7 Watts 349, 351–352 (Pa. 1838). In contrast, when a party made “his habitual and usual domicil” in a place, he became (in 1860 parlance) “subject to the jurisdiction” thereof. Mandeville v. Huston, 15 La. Ann. 281, 282 (1860).2
The legal relationships that followed from domicile—which collectively made a person subject to the jurisdiction of the government of his domicile—could be grouped into four categories.
First, domicile determined which government had the power to declare the law as to an individual’s most important personal affairs. Story on Conflict of Laws 51–52. The law governing personal affairs included the laws of marriage and divorce, which followed a couple’s domicile. E.g., Hood, 93 Mass., at 199–200; Ditson v. Ditson, 4 R. I. 87, 93–94 (1856). It included laws governing the succession of a person’s estate, which was distributed “according to the law of distribution of the place of his domicil.” 2 J. Kent, Commentaries on American Law 67 (1848); accord, Wharton Treatise 1872, §20, at 34–35. And, it included laws governing a person’s age of majority, his capacity to contract, his right to sue, and his rights with respect to moveable property. See, e.g., 1 W. Burge, Commentaries on Colonial and Foreign Laws 32 (1832); 1 Twiss 217–237; Inhabitants of Abington, 40 Mass., at 176; Ditson, 4 R. I., at 93–94. Jurisdiction over these personal affairs had “exclusive
Second, domicile determined which government had plenary jurisdiction over a person to regulate his actions anywhere. The law governing domiciliaries (unlike the law governing temporary visitors) had “effect given to it beyond the limits of [the] territory.” 1 Twiss 223; see also, e.g., Inhabitants of Hanover v. Turner, 14 Mass. 227, 231 (1817); Wharton Treatise 1872, at 34–44, 519–521. And, as now, a government could exercise personal jurisdiction over domiciliaries while the domiciliaries were abroad and for their conduct abroad. See id., at 519–521 (in personam judgment has “extra-territorial force” when rendered by government where “domiciled“); accord, e.g., id., at 481–482; Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 924 (2011).
Third, domicile determined which government had the power to impose personal taxes on a person. The power to impose “personal and income taxes” depended on “the party’s domicil.” Wharton Treatise 1872, at 68; see also id., at 34. A sovereign could tax the property in its territory belonging to anyone, but it could impose personal taxes—such as a capitation tax—only on persons domiciled within it. A person “not domiciled, is not within the jurisdiction of the assessors.” Preston v. Boston, 29 Mass. 7, 12 (1831). He “was not liable to taxation in the city for his poll, income and personal property” because “his residence and domicile was not in the city.” Id., at 10; accord, In re Hood’s Estate, 21 Pa. 106, 115 (1853) (describing the “rule” of “great antiquity and of high obligation” that “taxation follows the domicil“). So, while “transient travellers” were “not liable for ordinary governmental or municipal taxes,” such taxes could “be collected from domiciled aliens.” Wharton
Fourth, domicile determined which government owed a person protection when he went abroad. As this Court explained, “[t]he American citizen who goes into a foreign country, although he owes a local and temporary allegiance to that country, is yet, if he performs no other act changing his condition, entitled to the protection of our government.” Schooner Charming Betsy, 2 Cranch, at 120 (emphasis deleted); accord, Webster Report 2–3. So, before the Civil War, the Federal Government intervened to protect Americans abroad based on their domicile. See, e.g., Koszta 8–27. A nonnaturalized domiciliary abroad was entitled to “protection as an American citizen.” Id., at 18. The Department of State throughout the 19th century repeatedly confirmed “the right of persons domiciled in the United States, but not naturalized therein, to maintain internationally their status of domicil, and to claim protection from this Government in the maintenance of such status.” 2 Wharton Digest 487 (quoting 1885 Department of State instructions).
This protection abroad corresponded to the primary allegiance that the domiciliary owed his home government. When a person went “abroad for a time,” “his own state still possesse[d] a right to his allegiance.” W. Hall, The Foreign Powers and Jurisdiction of the British Crown 1–2 (1894). He “continue[d] under the obligations of [his home] allegiance, and his children, though born in a foreign country, [we]re not born under foreign allegiance.” Ludlam, 31 Barb., at 503. Although he owed a partial and temporary allegiance to his host nation, he was excused from military service and other obligations “distinctively associated with natural allegiance” because he owed “a prior and more binding allegiance to his own sovereign.” P. Hamburger,
C
When Dred Scott sued for his freedom, he claimed to be a citizen of Missouri, the State of his domicile. Scott, a black man held in slavery, sued in a federal court, which could hear the case only if it was between “Citizens of different States.”
Nobody disagreed with the premise that Scott was domiciled in Missouri. Black slaves and freedmen alike were unambiguously Americans. They were “not foreigners.” Cong. Globe, 39th Cong., 1st Sess., at 1160 (statement of Rep. Shellabarger). They were not “aliens.” Id., at 1117 (statement of Rep. Wilson). They “owed no foreign allegiance.” Id., at 530 (statement of Sen. Johnson); accord, Dred Scott, 19 How., at 420. It was the dissimilarity of American blacks to foreigners that Frederick Douglass emphasized in his call for recognizing the citizenship of blacks: “We address you not as aliens nor as exiles, humbly asking to be permitted to dwell among you in peace.” 2 Douglass 255 (emphasis added). Instead, “We are Americans.” Ibid. So, “speaking the same language and being of the same religion, worshipping the same God, owing our redemption to the same Savior, and learning our duties from the same Bible,” Douglass reasoned, “we shall not be treated as barbarians.” Id., at 256. American blacks were “liable to perform all the duties and support all the obligations of citizens.” Cong. Globe, 39th Cong., 1st Sess., at 1117 (statement of Rep. Wilson). They were domiciled in the United States,
This Court disagreed. It held that Scott was not a citizen of Missouri—and therefore could not sue as a citizen—because of his race. According to the Court, blacks could not be citizens because they were “considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” 19 How., at 404–405. As a result, the Court said, blacks were denied the basic privileges of citizenship—including the right to “keep and carry arms wherever they went” and to exercise the “full liberty of speech in public and in private.” Id., at 417. They could not sue in federal court as state “citizens.” Ibid.
Justices McLean and Curtis dissented. Justice McLean would have ruled that Scott was “a citizen of Missouri” because he had a “permanent domicil in the State.” Id., at 531. As he stated the law of citizenship, “[b]eing a freeman, and having his domicil in a State different from that of the defendant, he is a citizen.” Ibid. Likewise, Justice Curtis took the position, common at the time, see Part I–A, supra, that national citizenship was simply based on state citizenship. 19 How., at 581–582. He said that birthplace alone is not sufficient to be a national citizen, but that a person must be both born here and a citizen of a State. “[T]hose persons born within the several States, who . . . are citizens of the State, are thereby citizens of the United States.” Id., at 582. State citizenship, of course, was based on domicile. See Part I–A, supra. Justice Curtis thus agreed that Scott was a citizen of Missouri. 19 How., at 588.
Chief among the critics of Dred Scott was Abraham Lincoln. Soon after the Court released the decision, Lincoln declared that “[t]he Dred Scott decision is erroneous” and did “obvious violence to the plain unmistakable language of the Declaration [of Independence].” His Speeches and Writings 355, 360 (R. Basler ed. 1946). The case exacerbated national division over the issue of slavery and contributed to Lincoln‘s election as President. See, e.g., 2 C. Warren, The Supreme Court in United States History 279–357 (1928). Lincoln vowed not to “acquiesce in it as a precedent,” but instead to “do what we can” to have it “overruled.” Lincoln, His Speeches and Writings, at 355.
During the Civil War, Union officials continued to define citizenship based on birth and domicile. Lincoln‘s Attorney General Edward Bates wrote that the place of birth was “prima facie” evidence of citizenship, Citizenship, 10 Op.
D
After the Civil War, Congress vindicated Lincoln‘s vow to overrule Dred Scott—first with the Civil Rights Act, then with the Citizenship Clause of the Fourteenth Amendment.
1
“Congress enacted the Civil Rights Act of 1866” to “repudiate Dred Scott.” United States v. Vaello Madero, 596 U. S. 159, 174 (2022) (THOMAS, J., concurring); see also E. Foner, The Second Founding 63 (2020). The Civil Rights Act of 1866 confirmed that former slaves were citizens, but it did not extend citizenship to foreign temporary visitors or Indians who were still within their tribes.
a
The Civil Rights Act guaranteed citizenship only to persons born here and “not subject to any foreign power.” In full, the citizenship provision of the Civil Rights Act, which formed the basis for the Citizenship Clause at issue in this case, stated:
“That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
14 Stat. 27 .
Temporary visitors domiciled in a foreign country remained subject to a foreign power. See Part I–B–2, supra. The Civil Rights Act therefore “intentionally excluded” children of foreign temporary visitors. Brief for Former United States Attorney General Edwin Meese III as Amicus Curiae 4.
The congressional debates were clarifying on this score. When Senator Trumbull introduced the Civil Rights Act‘s citizenship provision, he stated that the language excluded “persons temporarily resident” in the United States, whom
Others confirmed that the Civil Rights Act excluded the children of temporary visitors. Representative Bingham described the Civil Rights Act as “simply declaratory” of pre-existing law, id., at 1291, which, he had already explained, required that a citizen be both “born and domiciled” in the United States, Cong. Globe, 35th Cong., 2d Sess., at 983. Bingham understood the Act to grant citizenship only to children “of parents not owing allegiance to any foreign sovereignty.” Cong. Globe, 39th Cong., 1st Sess., at 1291. Representative Martin Thayer agreed that the Act required that a person “not ow[e] allegiance to a foreign Power.” Id., at 1152. Of course, temporary visitors and their children owed allegiance to their home country. See Part I–B–2–c, supra. Unsurprisingly, then, the public interpreted the Act to guarantee citizenship to “all persons born in the United States,” except “those subject to foreign governments,” a class which included those born to “foreign parents temporarily sojourning in this country.” The Chicago Republican, Mar. 30, 1866, p. 4; see also K. Lash, Prima Facie Citizenship, 101 Notre Dame L. Rev. 101, 147 (2026).
b
The Civil Rights Act also excluded from citizenship “Indians not taxed.” This provision was intended to exclude
Like temporary visitors, tribal Indians were not completely subject to the jurisdiction of the United States. The United States did not have the right to impose personal taxes on them—hence, “Indians not taxed.” See, e.g., Elk v. Wilkins, 112 U. S. 94, 99 (1884); Goodell v. Jackson, 20 Johns. 693, 710 (N. Y. 1823). Their personal affairs remained subject to the jurisdiction of their tribal nation. “The right of self-government” was “secured to each tribe, with jurisdiction over all persons and property within its limits, subject to certain exceptions, founded on principles somewhat analogous to the international laws among civilized nations.” H. R. Rep. No. 474, 23d Cong., 1st Sess., p. 18 (1834); accord, 7 Op. Atty. Gen. 174–175 (1855). The United States did not interfere “with the disposition, or descent, or tenure of their property, as between themselves,” or “prove their wills,” or subject them to the “laws of marriage and divorce,” or subject them to the “laws of the United States, against high treason.” Goodell, 20 Johns., at 710. Tribal Indians did not owe the United States primary allegiance and did not receive from it complete protection. See ibid.; T. Cooley, General Principles of Constitutional Law 243 (1880); Elk, 112 U. S., at 99; id., at 119 (Harlan, J. dissenting); H. R. Rep. No. 474, at 18–20; see also B. Tennant, “Excluding Indians Not Taxed“: Dred Scott, Standing
Indians in tribes were not covered by the Civil Rights Act‘s exclusion of persons “subject to any foreign power” because Indian tribes were not “foreign.” They were “domestic dependent nations.” Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831). Thus, to preserve the status quo that tribal Indians were not citizens, Congress used the clause “not subject to any foreign power, excluding Indians not taxed.”
2
Although the Civil Rights Act by its terms overruled Dred Scott, the Reconstruction Congress could not be sure that it would endure. Some questioned whether Congress had the constitutional power to enact the Civil Rights Act and thus feared that a hostile court might neuter it. See Vaello Madero, 596 U. S., at 175 (THOMAS, J., concurring). Others worried that “as soon as the Democrats came into power,” they would repeal the Act. H. Flack, The Adoption of the Fourteenth Amendment 95 (1908); accord, Foner, The Second Founding, at 68–71. Thus, when it passed the Civil Rights Act, the Reconstruction Congress was already drafting the Fourteenth Amendment. See id., at 55–92; K. Lash, The Origins of the Privileges or Immunities Clause, Part II, 99 Geo. L. J. 329, 349 (2011). Two months later, Congress would formally propose the Citizenship Clause of the Fourteenth Amendment to the States. See Hurd v. Hodge, 334 U. S. 24, 32, n. 11 (1948). The States ratified the Amendment in 1868.
The Citizenship Clause of the Fourteenth Amendment constitutionalized the Civil Rights Act‘s citizenship provision. The “main object” of the Clause was to settle “the
“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.”
Amdt. 14, § 1 .
This language, all agreed, “unambiguously overruled this Court‘s contrary holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State.” McDonald v. Chicago, 561 U. S. 742, 807–808 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also Slaughter-House Cases, 16 Wall., at 73. The “Citizenship Clause ‘forever closed the door on Dred Scott’ and ‘constitutionalized the Civil Rights Act of 1866‘” by foreclosing a racial criterion for citizenship. Vaello Madero, 596 U. S., at 175 (THOMAS, J., concurring) (quoting K. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship 171 (2014)); see also Slaughter-House Cases, 16 Wall., at 73; id., at 94–95 (Field, J., dissenting).
The Citizenship Clause did not change the Civil Rights Act‘s rule. The Clause and the Act were passed by the same Congress during the same session. See Hurd, 334 U. S., at 32. Senator Howard, who proposed the Citizenship Clause, believed that it hardly warranted discussion because Congress had just enacted the same rule in the Civil Rights Act. The Senate had “so fully discussed” “the question of citizenship” as “not to need any further elucidation.” Cong. Globe, 39th Cong., 1st Sess., at 2890. He also stated that the Citizenship Clause “is simply declaratory of what I regard as the law of the land already.” Ibid. Senator Trumbull, who had introduced the Civil Rights Act‘s citizenship provision, confirmed that “[t]he object to be arrived at is the same.” Id., at 2893–2894. Senator Johnson had “no doubt” that “all
The phrase “subject to the jurisdiction” was a familiar way to describe the relation of a domiciliary to his home nation. See Part I–B–2–c, supra. Lawyers in America would have known that a person was “subject to the jurisdiction” of the place of his domicile. Hood, 93 Mass., at 199–200. Congressmen confirmed that the Clause should not be construed to refer to the bare territorial power that a sovereign exercises over all persons in its territory. “I understand the words here, ‘subject to the jurisdiction of the United States,‘” Senator Reverdy Williams said, “to mean fully and completely subject to the jurisdiction of the United States.” Cong. Globe, 39th Cong., 1st Sess., at 2897. “[T]he word ‘jurisdiction,’ as here employed,” Senator Howard explained, “ought to be construed so as to imply a full and complete jurisdiction“—“the same jurisdiction in extent and quality as applies to every citizen of the United States now.” Id., at 2895. The Citizenship Clause, Senator Trumbull agreed, “means ‘subject to the complete jurisdiction thereof.‘” Id., at 2893 (emphasis added). So, although, “in one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States,” Senator Williams explained, some were not covered by the Citizenship Clause because they “are not subject to the jurisdiction of the United States in every sense.” Id., at 2897. Each of these descriptions precluded applying the Citizenship Clause to the children of temporary visitors, who—unlike children domiciled here—were not subject to the jurisdiction of the United States in every sense.
It was on this basis that Congressmen believed that the Clause fixed in place the rule of the Civil Rights Act.
The Citizenship Clause, just like the Civil Rights Act, also excluded from citizenship the children of tribal Indians—meaning Indians whose tribes retained sovereign authority over them. “Certainly,” Senator Howard said, “gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction.” Cong. Globe, 39th Cong., 1st Sess., at 2895. As Senator Trumbull saw it, tribal Indians were excluded because they, like temporary visitors, retained a primary allegiance to, and therefore were subject to, their tribal nation: “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.‘” Id., at 2893. He concluded: “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.” Ibid. Congress was satisfied that its language accomplished that result with the phrase “subject to the jurisdiction thereof.” As Senator Williams explained, “I would
The Citizenship Clause used different wording from the Civil Rights Act only to resolve an uncertainty that had arisen out of the Act‘s “Indians not taxed” language. Senator Trumbull explained that the category of “Indians not taxed” was an attempted proxy for the Indians over whom the United States lacked complete jurisdiction: The Civil Rights Act was supposed to “designate a class of persons who were not a part of our population,” so it was supposed to exclude tribal Indians while including Indians who “come within the jurisdiction of the United States.” Id., at 572. The former could not be “taxed,” in the sense of personal taxes. See Parts I–B–2–c, I–D–1–b, supra. But, the phrase “excluding Indians not taxed,” Trumbull realized, could be misunderstood to encompass Indians who had left their tribal community and permanently settled outside of it, but were not taxed for other reasons—such as because they were “not possessed of wealth.” Cong. Globe, 39th Cong., 1st Sess., at 2894. Similarly, making citizenship depend on taxation could allow States to manipulate citizenship eligibility by changing their tax practices. Id., at 2895 (statement of Sen. Howard).
The phrase “subject to the jurisdiction” solved the problem because it avoided excluding from citizenship the children of nontribal Indians who for whatever reason were not taxed. Tribal Indians were not in “any sense” “subject to the complete jurisdiction of the United States.” Cong. Globe, 39th Cong., 1st Sess., at 2893 (statement of Sen. Trumbull). Like temporary visitors, tribal Indians were “not subject to our jurisdiction in the sense of owing allegiance solely to the United States.” Id., at 2894. Their internal affairs—including marriages, family matters, intestacy, and payment of personal taxes—were regulated by
With respect to temporary visitors from foreign nations, the phrase was believed to accomplish the same object as the Civil Rights Act‘s exclusion of those “subject to” a foreign power. Children born to temporary visitors owed allegiance to another government—the country of their domicile—so they were not subject to the jurisdiction of the United States. “[T]he Citizenship Clause simply states in positive terms (‘subject to the jurisdiction thereof‘) what the Act stated in negative terms (‘not subject to any foreign power‘).” Brief for Sen. Eric Schmitt et al. as Amici Curiae 18.
E
1
The evidence from the decades following ratification confirms that the Citizenship Clause was understood to exclude the children of temporary visitors. There was frequently expressed, enduring, and widespread agreement, from the Reconstruction Congress through the end of the 19th century (and even into the 20th), that the Citizenship Clause did not guarantee citizenship to persons not domiciled here. The Executive Branch, Congress, courts, States, lawyers, scholars, and commentators generally shared this understanding.
a
The Executive Branch understood the Citizenship Clause to exclude the children of temporary visitors. In 1873,
Across administrations, the Executive Branch took the same position. A child born on American soil was not an American citizen when he was “domiciled in” a foreign country. Letter from Sec. of State T. Bayard to B. Winchester (Nov. 28, 1885), in 2 Wharton Digest 399–400. By virtue of his foreign domicile, he was “on his birth ‘subject to a foreign power’ and ‘not subject to the jurisdiction of the United States.‘” Ibid. “A child born in this country to a foreign father, when taken by his father abroad, acquires the father‘s domicil and nationality.” Letter from Sec. of State F. Frelinghuysen to M. Cramer (June 4, 1883), in id., at 397. These statements were not mere abstract positions, but the Executive Branch‘s operating rule of decision for decades.
When the children of temporary visitors born on American soil claimed to be citizens based on the Citizenship Clause, the Executive Branch repeatedly denied their claims to citizenship:
- Joseph Speck was denied citizenship after being born in the United States to parents domiciled in Switzerland. In 1878, Speck claimed to be a citizen after his
father returned with him to Switzerland. President Hayes‘s Acting Secretary of State Frederick Seward rejected his claim. Although Speck may have been able to claim citizenship had he been domiciled in the United States, Seward denied his claim because “his status, as well as his domicil, according to the well-understood principles of international and municipal law, follows that of the father until the boy attains his majority.” Letter from Acting Sec. of State F. Seward to H. Fish (Aug. 20, 1878), in id., at 396. - Ludwig Hausding was denied citizenship after being born in the United States to parents domiciled in Saxony. Hausding‘s parents were “Saxon subjects, temporarily in the United States.” Letter from Sec. of State F. Frelinghuysen to J. Kasson (Jan. 15, 1885), in Papers Relating to the Foreign Relations of the United States 395 (1886). President Cleveland‘s Secretary of State Frederick Frelinghuysen explained in 1885 that Hausding was not constitutionally entitled to citizenship. Because Hausding‘s parents were not domiciled here, he remained “subject to any foreign power.” Ibid. Therefore, his attempt to “assert citizenship on the ground of birth in the United States” was “untenable.” Ibid.; see also 2 Wharton Digest 397–399.
- Richard Greisser was denied citizenship after being born in the United States to parents domiciled in Germany. He was “born in 1867 in the State of Ohio.” Letter from Sec. of State T. Bayard to B. Winchester (Nov. 28, 1885), in id., at 399. His father was “domiciled in Germany.” Ibid. According to President Cleveland‘s Secretary of State Thomas Bayard in 1885, Greisser therefore “was on his birth ‘subject to a foreign power’ and ‘not subject to the jurisdiction of the United States.‘” Id., at 400. He was “not, therefore, under the statute and the Constitution a citizen of the United
States by birth.” Ibid. The State Department thus denied Greisser‘s claim to citizenship. Ibid. - Freiderich de Bourry was denied citizenship after being born in the United States to parents domiciled in Austria. When de Bourry sought protection as an American citizen in 1886 after returning to Europe, Secretary Bayard denied his claim to citizenship. Although de Bourry was “born in the city of New York,” Secretary Bayard explained, his parents were “temporarily resident” and returned to Europe a few years later. Letter from Sec. of State T. Bayard to J. Lee (July 24, 1886), in id., at 401. He then remained in Europe, showing that “an Austrian domicile was chosen.” Id., at 402. Secretary Bayard concluded that De Bourry‘s “‘passport must therefore be refused.‘” Ibid.
- The child of a woman named Mary Deveraux was denied citizenship after being born in the United States in 1889. Deveraux was an Irish woman who arrived in New York and promptly went to the hospital to give birth the next day. She was not yet, however, lawfully admitted to the country. Although the baby was undoubtedly “born on American soil,” it was not an American citizen because Deveraux had not yet been lawfully admitted. See Letter from F. Reeve, Acting Solicitor of the Treasury, to W. Windom, Secretary of the Treasury (Mar. 4, 1890), in 11 Documents of the Assembly of the State of New York, pp. 47–48 (1890). President Harrison‘s Administration denied the baby citizenship: “I am, therefore, of the opinion that the child in controversy born during the temporary removal of the mother from the importing vessel to a lying-in hospital for her own comfort, pending further examination as to whether she belongs to the prohibited class of immigrants, did not become, by reason of its birth, under such circumstances, an American citizen.”
Id., at 48; see A. Swearer, Subject to the [Complete] Jurisdiction Thereof, 24 Tex. Rev. L. & Pol. 135, 171 (2020).
These children were not born to diplomats. They were not part of invading armies or Indian tribes. They were simply foreigners, born on American soil but not domiciled here. And, they were all denied citizenship under the Citizenship Clause—by those in a better position to know its original meaning than we are today. See also 2 Wharton Digest 393–402; P. Webster, Law of Citizenship in the United States: Treated Historically 109–129 (1891).6
Even the most expansive executive interpretation of the Citizenship Clause ultimately denied citizenship to a child born here but domiciled abroad. When Francois Heinrich, born of parents who ultimately returned to their native Austria, claimed to be an American citizen, President Grant‘s Executive Branch did say that he was “‘originally clothed with American nationality.‘” Ante, at 13 (majority opinion). But, it then promptly denied Heinrich‘s claim to American citizenship. Heinrich was instead—despite being born in the United States—a citizen of Austria, where he was domiciled: “Francois A. Heinrich should be held by the United States to be an Austrian subject, and treated as such; . . . he is not an American citizen.” Letter from Sec. of State H. Fish to Baron Lederer (Dec. 24, 1872), in 2 Wharton Digest 395–396.
b
Congress understood the Citizenship Clause to exclude the children of temporary visitors. Just two years after the
c
This Court long agreed that the Citizenship Clause did not apply to persons born here to children of temporary visitors. Just five years after the Citizenship Clause was ratified, this Court explained that the phrase “subject to the jurisdiction” excluded persons not domiciled here: “The phrase ‘subject to its jurisdiction,‘” the Court explained, “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.” Slaughter-House Cases, 16 Wall., at 73.
Then, in Elk, the Court again interpreted the Clause to require complete jurisdiction, not just bare territorial authority. The Court held that to satisfy the Citizenship Clause, a person must not only be “born within the territorial limits of the United States,” but must be “completely subject” to the United States’ “political jurisdiction” at birth. 112 U. S., at 102. The Citizenship Clause‘s “evident
Justice Harlan dissented in Elk, but he agreed that the Citizenship Clause referred to the same “complete jurisdiction.” Id., at 117. He dissented only because he thought that someone born in the territorial United States could become a citizen even if he became subject to its complete jurisdiction later in life. On Justice Harlan‘s view, which was not uncommon at the time, the Citizenship Clause did not require that the person be born while subject to the complete jurisdiction of the United States. Id., at 116–121. Instead, a person could be born in the United States while not subject to its jurisdiction—as John Elk was because he was a member of an Indian tribe at birth—but become subject to its jurisdiction later—as Elk did by “abandoning his tribe.” Id., at 122. On Justice Harlan‘s view, following the law of domicile, persons became subject to the jurisdiction of the United States “by becoming bona fide residents of States” and “subject to taxation” there. Id., at 120–122; see also id., at 122 (explaining that one becomes “subject to the complete jurisdiction of the United States” “by residence in one of the States“). Every Justice in Elk thus agreed that the Citizenship Clause did not refer to bare territorial authority.
The most celebrated Fourteenth Amendment opinion is Justice Harlan‘s dissent in Plessy v. Ferguson. In that dissent, Justice Harlan disagreed with the Plessy Court‘s
d
State officials likewise agreed that the Citizenship Clause excluded persons not domiciled here. Although the Citizenship Clause guaranteed both national and state citizenship, States excluded from citizenship “children of transient aliens.”
Likewise, state judicial precedent held that the Citizenship Clause included children born of foreign parents only “when the parents are domiciled here.” Benny v. O‘Brien, 58 N. J. L. 36, 40 (1895). To qualify for citizenship, “[t]wo facts must concur[:] the person must be born here, and he must be subject to the jurisdiction of the United States according to the fourteenth amendment, which means, according to the Civil Rights act, that the person born here is not subject to any foreign power.” Id., at 39. The
2
Scholars agreed, as well, that the Citizenship Clause required domicile. As early as 1875, Yale Law School Professor William Robinson wrote that a “native-born citizen” was “one who was born within the jurisdiction and allegiance of the United States.” Notes on Elementary Law, at 70. And, to be born within the jurisdiction and allegiance of the United States, a person “born within the territory of the United States, of alien parents,” had to show that those parents were “permanently domiciled within the United States.” Ibid.
A long list of eminent 19th-century legal scholars—including Thomas Cooley, Francis Wharton, Henry Campbell Black, and Justice Samuel Miller—agreed. Cooley wrote that “a citizen by birth must not only be born within the United States, but he must also be subject to the jurisdiction thereof; and by this is meant that full and complete jurisdiction to which citizens generally are subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.” General Principles of Constitutional Law 243. Francis Wharton explained that children “born in the United States” of “parents not being here domiciled, are not citizens.” Wharton Treatise 1880, at 41; see also 2 Wharton Digest 393–394 (Citizenship Clause “exclude[d] children born in the United States to foreigners here on transient residence, such children not being by the law of nations ‘subject to the jurisdiction of the United States‘“). Henry Campbell Black—of Black‘s Law Dictionary—wrote: “[I]f a stranger or traveler passing through the country, or temporarily residing here, . . . has a child born here, who goes out of the country with his father, such child is not a citizen of the United States,
Scholar after scholar confirmed that domicile was required for citizenship. “The words “subject to the jurisdiction thereof,” exclude[d] the children of foreigners transiently within the United States.” A. Morse, Treatise on Citizenship 248 (1881). The Citizenship Clause excluded the “children of foreign subjects, born while the latter transiently sojourn here.” M. Lesser, Citizenship and Franchise, 4 Colum. L. Times 113, 146 (1891). “[T]he children of foreigners, in transient residence, are not citizens, their fathers being subject to the jurisdiction less completely than Indians.” Hall, The Foreign Powers and Jurisdiction of the British Crown, at 63; see also W. Hall, International Law 236–237 (4th ed. 1895) (“In the United States it would seem that the children of foreigners in transient residence are not citizens“). “[T]he requirement of personal subjection to the “jurisdiction thereof“” excludes “children of persons passing through or temporarily residing in this country.” B. Winchester, Citizenship in Its International Relation, 31 Am. L. Rev. 504 (1897).
As immigration laws became more restrictive, some adopted the view that children must be born to citizens to obtain citizenship by birth. In contesting that view, its detractors spoke in terms of domicile. Prominent jurist Henry C. Ide, for example, published an article arguing that whether “the very fact of birth in our country render[s] one
3
In United States v. Wong Kim Ark, 169 U.S. 649 (1898), this Court interpreted the Citizenship Clause to apply to a person born and domiciled here.
The case, and the arguments made in it, arose out of the unique circumstances of Chinese immigration in the late 19th century. Hundreds of thousands of Chinese immigrated to the United States during this time. They were met with considerable hostility. By statute, Chinese settlers could not be naturalized. See In re Ah Yup, 1 F. Cas. 223, 223–225 (CC Cal. 1878); Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893). Congress then banned Chinese immigration in the Chinese Exclusion Act of 1882. See Act of May 6, 1882, ch. 126, 22 Stat. 58–61. Meanwhile, if a Chinese person renounced his allegiance to China, the Chinese Government could behead him upon his return, sell his family as slaves, and banish his relatives. See Wong Kim Ark, 169 U.S., at 725, n. 1; Justice John Marshall Harlan: Lectures on Constitutional Law, 1897–98, Lecture No. 27 (May 7, 1898), in 81 Geo. Wash. L. Rev. Arguendo 12, 345 (B. Frye, J. Blackman, & M. McCloskey eds. 2013). Given the era‘s concern with dual citizenship, see Part I–B–2–a, supra, this policy made it even more difficult for Chinese immigrants to fully settle in the United States. See Wong Kim Ark, 169 U.S., at 725–726 (Fuller, C. J., dissenting).
Unlike other settlers, then, the Chinese—even those who lived here and wished to remain—had no path to citizenship and no means of freeing themselves from the grasp of China. The Executive Branch took the view that because domicile no longer ensured full integration into the American body politic, the Citizenship Clause‘s phrase “subject to the jurisdiction” must require more than domicile. That view would entail that a child born to Chinese parents domiciled in this country was not a citizen. Instead, the Executive Branch sought to replace the requirement of domicile, which would make any child of domiciled Chinese immigrants a citizen, with the requirement that a person‘s parents already be citizens. See Brief for United States in United States v. Wong Kim Ark, O. T. 1895, No. 904, pp. 23–34; see also, e.g., In re Look Tin Sing, 21 F. 905, 906 (Cal. 1884). Acting on this view, the Government in 1895 denied citizenship to a man domiciled in the United States from birth.
The stipulated facts were these. See Wong Kim Ark, 169 U.S., at 652–653. Wong Kim Ark was born in San
This Court‘s decision in Wong Kim Ark concerned only persons already domiciled in the United States. As stated in the Government‘s brief, the “question presented by this appeal” was: “Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth?” Brief for Appellant in Wong Kim Ark, O. T. 1895, No. 904, p. 2 (emphasis deleted). The Government agreed that Wong was born and domiciled in the United States. Id., at 23; see also Brief for United States in Wong Kim Ark, O. T. 1896, No. 449, pp. 2–3. In fact, the thrust of the Government‘s opening brief was that birth and domicile were insufficient. The Government lamented “the mistakes made and the misunderstanding arising from failing to distinguish between nationality and domicile.” Brief for Appellant in Wong Kim Ark, O. T. 1895, No. 904, at 13; see also Reply Brief in Wong Kim Ark, O. T. 1896, No. 449, at 9–10. It disapproved of the decisions of “some of our Attorneys-General and Secretaries of State” for their “error of failing to distinguish between nationality and domicile.” Id., at 10. It acknowledged that state citizenship was based on domicile, but argued that a different rule should govern national citizenship to “preserve the distinction between State and national sovereignty.” Id., at 17. “The Constitution does not countenance,” the Government argued,
The Court found it so important that Wong and his parents were domiciled in the United States at the time of his birth that it gratuitously insisted upon that fact throughout its opinion. The Court‘s introductory paragraph stated seven different ways that Wong was domiciled in the United States: He was born to parents who were “at the time of his birth domiciled residents of the United States.” 169 U.S., at 652 (emphasis added). His parents were “enjoying a permanent domicile and residence therein at San Francisco.” Ibid. (emphasis added). His parents “continued to reside and remain in the United States.” Ibid. (emphasis added). He “ever since his birth, has had but one residence, to wit, in California, within the United States.” Ibid. (emphasis added). He “ha[d] there resided.” Ibid. (emphasis added). He “never lost or changed that residence.” Ibid. (emphasis added). And, he never “gained or acquired another residence.” Ibid. (emphasis added).
Two paragraphs later, the Court confirmed that its decision was limited to persons born and domiciled in the United States. “The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, . . . becomes at the time of his birth a citizen of the United States.” Id., at 653 (emphasis added). Then, if that were not enough, the Court reiterated the same limits to its opinion in its final paragraph: This case “present[ed] for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence
The opinion itself was filled with meandering dicta. The Court‘s interpretation of the Citizenship Clause evolved over the course of the opinion, before landing on an interpretation that limited citizenship at birth to persons domiciled here. At first, the opinion stated that the rule of American citizenship was the feudal principle of birth on the soil with only two exceptions: (1) “the child of an ambassador or other diplomatic agent of a foreign State” and (2) the child of “an alien enemy in hostile occupation.” Id., at 658. Then, after considering more evidence and arguments, the opinion reformulated the rule to include a third exception: (1) “children of members of the Indian tribes,” (2) “children born of alien enemies in hostile occupation,” and (3) “children of diplomatic representatives of a foreign State.” Id., at 682. Then, after discussing more “considerations and authorities,” the opinion reformulated the rule with at least five exceptions and a residence requirement: “[A]ll children here born of resident aliens,” with “the exceptions or qualifications” of (1) “children of foreign sovereigns,” (2) children of foreign “ministers,” (3) children “born on foreign public ships,” (4) children “of enemies within and during a hostile occupation of part of our territory,” and (5) “children of members of the Indian tribes owing direct allegiance to their several tribes.” Id., at 693 (emphasis added). Then, the Court concluded by reiterating an explicit domicile requirement: Outside of these five categories, the Citizenship Clause covers “all other persons, of whatever race or color, domiciled within the United States.” Ibid. (emphasis added). So, although these various statements are both dicta and irreconcilable—as is much of the opinion‘s reasoning—the Court‘s most complete rule statement was limited to persons, like Wong, born and domiciled in the United States.
Chief Justice Fuller nonetheless dissented because he rejected the premise that Wong‘s parents were domiciled here at the time of his birth. He explained that because Chinese law purported to bind Wong‘s family even after they had settled here, the family “cannot . . . acquire a permanent home here, no matter what the length of their stay may be.” Id., at 731; see also id., at 725, and n. 1; see also Justice John Marshall Harlan: Lectures on Constitutional Law, in 81 Geo. Wash. L. Rev. Arguendo, at 345. Thus, Chief Justice Fuller and Justice Harlan dissented because, in their view, Wong and his parents were not actually domiciled in the United States at the time of his birth.
4
Wong Kim Ark left in place the same rule that existed before: A child of a domiciliary was a citizen, but a child of a temporary visitor was not.
“The effect of [Wong Kim Ark],” a legal scholar explained shortly after it was published, “is to make citizens of the United States by virtue of the Fourteenth Amendment all
On this understanding of Wong Kim Ark, temporary visitors’ children were still excluded from citizenship. “In the United States,” William Edward Hall wrote six years after Wong Kim Ark, “it would seem that the children of foreigners in transient residence are not citizens.” International Law 227 (5th ed. 1904). A 1901 international-law treatise explained that “children born in the United States to foreigners here on transient residence are not citizens, because by the law of nations they were not at the time of their birth “subject to the jurisdiction“” of the United States. H. Taylor, International Public Law 220. When a “father has domiciled himself in the Union,” John Westlake wrote in 1904, his children “are citizens.” International Law 219–220. But, when he is “in the Union for a transient purpose,” his children “born within it have his nationality.” Ibid.
This understanding was widespread after Wong Kim Ark: “A person born in this country of alien parents” was a “citizen” only if those parents were “domiciled.” 1 Bouvier‘s Law Dictionary 492 (1914). A child born in the United States is a “citizen” when “domiciled,” but not when his parents left after being “temporarily resident.” 1 F. Wharton, Conflict of Laws 44–45 (1905). A child born on American
Government officials generally agreed. In 1910, a Department of Justice report explained that “it has never been held, and it is very doubtful whether it will ever be held, that the mere act of birth of a child on American soil, to parents who are accidentally or temporarily in the United States, operates to invest such child with all the rights of American citizenship.” Spanish Treaty Claims Comm‘n, Final Report of William Wallace Brown 124. The Citizenship Clause did “not mean that jurisdiction to which the bodily form of the child is subject from the moment of its birth . . . but that larger jurisdiction, which, though difficult to define, is well known and understood, the difference between the jurisdiction which is exercised over a visitor and that over one domiciled, which difference may be seen at a glance.” Id., at 125.
Even this Court described Wong Kim Ark in limited terms. It read Wong Kim Ark to apply to aliens with a “permanent domicil and residence in the United States.” Chin Bak Kan v. United States, 186 U.S. 193, 200 (1902) (internal quotation marks omitted). Wong Kim Ark, in its telling, covered children born to parents “permanently domiciled in the United States.” Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920).
5
Throughout this period, Congress left in place the same statutory language that it originally enacted in 1866 and
The Nationality Act of 1940 replaced that language with the same language (in relevant part) as the Citizenship Clause itself: a “person born in the United States, and subject to the jurisdiction thereof,” is a citizen. 54 Stat. 1138. Congress reenacted that provision verbatim in the 1952 Immigration and Nationality Act (INA). 66 Stat. 235–236. It remains the governing statute today. See
F
1
In the 20th century, executive practice repurposed the Citizenship Clause to treat the children of temporary visitors and illegal aliens as citizens.
An assistant solicitor named Richard Flournoy prominently argued that the Citizenship Clause does include the children of temporary visitors. See Dual Nationality and Election, 30 Yale L. J. 545, 546 (1921). He disagreed with “a number of writers” who held that “in order that a person born in the United States of alien parents may have American citizenship, his parents must have been domiciled in this country at the time of his birth.” Id., at 552. Although he acknowledged that ”Wong Kim Ark did not directly decide the precise point,” he said that the Citizenship Clause should be read to incorporate a rule that “originated with the feudal system, under which all persons, with certain limited exceptions, born within the fief of an over lord were
President Franklin D. Roosevelt‘s administration adopted the view that the Citizenship Clause applied to the children of temporary visitors. See Brief for Citizenship Law Scholars as Amici Curiae 10–18; 1 House Committee on Immigration and Naturalization, 76th Cong., 1st Sess., 7 (Comm. Print 1939). In 1995, some 127 years after the Citizenship Clause was enacted, President Clinton‘s Office of Legal Counsel endorsed the same view. 19 Op. OLC. 340. It explained that the right to American citizenship for the children of illegal aliens and temporary visitors “is fundamental to our liberty as we understand it.” Id., at 349.
Many in Congress disagreed with the Executive Branch‘s view. As late as the 1990s, Senator Harry Reid sponsored bipartisan legislation to clarify that the child of an illegal alien or temporary visitor would “not be a citizen of the United States or of any State solely by reason of physical presence within the United States at the moment of birth.” S. 1351, 103d Cong. 1st Sess., §1001 (1993). “No sane country,” Senator Reid argued, would offer a “reward for being an illegal immigrant.” R. Igielnik, Most Americans Favor Birthright Citizenship. That Wasn‘t Always True, N. Y. Times, Mar. 31, 2026. Others supported similar legislation. Ibid.
The question was not prominent in judicial opinions in the 20th century. One of the first substantial discussions arose 105 years after Wong Kim Ark, when Judge Posner treated the matter as unsettled. “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U. S. citizenship,” he wrote, “but I doubt it.” Oforji v. Ashcroft, 354 F. 3d 609, 621 (CA7 2003) (concurring opinion). “The purpose of the rule was to grant citizenship to the recently freed slaves,” and it
2
Some took advantage of the Executive Branch‘s recent policy of granting citizenship to anyone born on American soil. The policy encouraged “birth tourism“—the practice of traveling here with temporary authorization solely to give birth and obtain citizenship for one‘s children, then returning to raise them in another country.
Today, “birth tourism companies” reportedly collect large fees from wealthy foreigners to facilitate their trips to give birth in the United States. Senate Committee on Homeland Security and Governmental Affairs, Report on Birth Tourism in the United States: Minority Staff Report 25–33 (2022). Large numbers of children are born in the United States each year to parents who are temporarily present here in order to obtain citizenship for their children. J. Pak, Why Chinese Parents Come To America to Give Birth, Marketplace (Mar. 7, 2019), https://www.marketplace.org/story/2019/03/06/why-chinese-parents-come-america-give-birth; see also Brief for Tennessee et al. as Amici Curiae 28–29.
G
1
Upon taking office, President Trump issued an Executive Order that expressed the Executive Branch‘s interpretation of the Citizenship Clause. See Exec. Order No. 14160, 90 Fed. Reg. 8449 (2025).
The Citizenship Order adopts the view that the Fourteenth Amendment does not guarantee citizenship at birth to the children of temporary visitors and illegal aliens. Section 1 of the Order interprets the scope of the Citizenship Clause. It states that someone born in the United States is not guaranteed citizenship if that person is born here to
The President‘s initiative generated a groundswell of new scholarship into the original meaning of the Citizenship Clause. A wide range of originalist scholars have concluded that the 20th century executive practice was mistaken and that the Order has substantial lawful applications. See generally, e.g., Lash, 101 Notre Dame L. Rev. 101; R. Epstein, The Myth of Birthright Citizenship (2026); I. Wurman, Jurisdiction and Citizenship, 49 Harv. J. L. Pub. Pol‘y 315 (2026); Swearer, 2 Tex. A & M J. L. & Civ. Gov. 73; R. Barnett, Trump Is Right on Birthright Citizenship, Wall Street Journal, Mar. 31, 2026; P. Hamburger, Allegiance, Birthright, and Citizenship, Law and Liberty (Apr. 9, 2026), https://lawliberty.org/allegiance-birthright-and-citzenship (archived at perma.cc/S9JB-ZNEP).
2
Before the Order went into effect or executive agencies implemented it, several District Courts universally enjoined its implementation.8 This Court partially stayed
This case arises from one of those actions. Three plaintiffs sued on behalf of a putative class. The plaintiffs, who proceed under pseudonyms, are each illegal aliens or lawful temporary visitors. The first plaintiff, a Honduran citizen, was expecting a baby due in October 2025. The other two plaintiffs, one Taiwanese citizen and one Brazilian citizen, did not allege that they were expecting a baby. None alleged that any of their children will be domiciled in the United States. As a right of action, plaintiffs invoked the Citizenship Clause itself, the INA, and the Administrative Procedure Act. They sued on behalf of a putative class of all children who would be ineligible for citizenship under the President‘s Order, as well as those children‘s parents. And, they sought to have the Order declared “unconstitutional and unlawful in its entirety.” Complaint in No. 25–cv–244 (NH), ECF Doc. 1, p. 16.
The District Court ruled for the plaintiffs. It interpreted the Citizenship Clause to guarantee citizenship to the children of all lawful temporary visitors and illegal aliens. As to relief, the District Court certified a provisional universal class under Federal Rule of Civil Procedure 23(b)(2), which states that class actions may be maintained if the defendant “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole.” The certified class consisted of “[a]ll current and future persons . . . born on or after February 20, 2025” who fall within the two
3
The Court today affirms the District Court‘s universal-class injunction. It holds that the Fourteenth Amendment guarantees citizenship to all children born here to lawful temporary visitors or illegal aliens. On the Court‘s telling, the law of citizenship in the United States was fixed to an English rule that everyone born on the soil was permanently bound to serve the sovereign. Ante, at 2–3. This principle of permanent feudal allegiance, according to the Court, was repurposed into a rule of citizenship and adopted by “all of the states.” Ante, at 4 (internal quotation marks omitted). The rule‘s universal acceptance was embodied by an 1844 state equity decision called Lynch v. Clarke, 1 Sand. Ch. 583. See ante, at 6. The rule extended citizenship to all persons born within United States territory, except three categories: children of foreign representatives, children over whom the Government lacked “actual power,” and children of Indians in tribes. Ante, at 3, 4–6. Those three exceptions were then adopted in the Civil Rights Act and the Enforcement Act by the phrase “not subject to any foreign power,” and in the Citizenship Clause by the phrase “subject to the jurisdiction thereof.” Ante, at 8–10. This Court‘s Wong Kim Ark opinion three decades later, the Court says, confirmed the same rule. Ante, at 13–16.
II
Before proceeding to the merits, I briefly note three threshold impediments to the Court‘s decision today that the Court leaves unaddressed.
Second, the Court cannot grant relief to any party without a right of action. See Whole Woman‘s Health v. Jackson, 595 U.S. 30, 52 (2021) (THOMAS, J., concurring in part and dissenting in part). But, it grants relief here on the basis of a suit brought under the Citizenship Clause, the INA, and the APA. The Citizenship Clause and the INA‘s equivalent, by their terms, create no right of action. The APA authorizes suits challenging “final agency action,” but the plaintiffs did not allege any final agency action. See
Third, because respondents sought to invalidate the Citizenship Order in its entirety and the District Court granted facial relief, the plaintiffs bear the burden to show that all applications of the Order are unlawful. See post, at 2 (GORSUCH, J., dissenting). Under this Court‘s precedent, facial challenges require plaintiffs to establish “that “no set of circumstances exists under which the [Order] would be valid.“” Moody v. NetChoice, LLC, 603 U.S. 707, 765 (2024) (THOMAS, J., concurring in judgment) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). To prevent federal courts from invading the political branches’ interest in effectuating policies “enacted by representatives of [the] people,” Maryland v. King, 567 U.S. 1301, 1303 (2012) (ROBERTS, C. J., in chambers) (internal quotation marks omitted), facial invalidation must remain rare and “hard to win.” Moody, 603 U.S., at 723.
III
In my view, the Citizenship Order is not facially unconstitutional. The Order is consistent with the original meaning of the Citizenship Clause, at least insofar as it applies to children born to parents, here lawfully or unlawfully, who are not domiciled in the United States.
The Citizenship Clause was enacted for people who were born in this country and called it home. It was enacted for freed slaves such as Dred Scott, who had “a domicil” here and therefore were entitled to sue as citizens. Brief for Dred Scott 6. It was enacted for men such as Frederick Douglass, who demanded citizenship “not as aliens nor as exiles,” but as “Americans.” 2 Douglass 255. Its authors and supporters promised, over and over again, that it would exclude the children of “persons temporarily resident” here, whom “we would have no right to make citizens.” Cong. Globe, 39th Cong., 1st Sess., at 572 (statement of Sen. Trumbull). In Senator Trumbull‘s words: “What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means.” Id., at 2893. And, for decades after ratification, it was interpreted by all three branches of Government and by a wide range of legal authorities to be limited to people who were already Americans.
The Citizenship Order is therefore, insofar as it applies to persons not domiciled here, consistent with the Citizenship Clause. It is consistent with the Citizenship Clause in its exclusion of the children of lawful temporary visitors, such as birth tourists. The exclusion of the children of lawful temporary visitors—who are, by definition, not domiciled here—was originally a matter of widespread agreement. As to them, the Citizenship Order does exactly what the Executive Branch did for most of the rest of the 19th century, what this Court said that it could do, and what scholars for decades confirmed that it could do. And, the Order is at least facially consistent with the Citizenship Clause in its exclusion of the children of illegal aliens because at least some such persons are not domiciled here, and therefore also are not citizens.10
The constitutional text supports the conclusion that the Citizenship Clause requires domicile.
1
The Citizenship Clause guarantees citizenship to persons who were both born in the United States and “subject to the jurisdiction thereof.”
This interpretation accords with the contemporaneous evidence that would have informed the public meaning of the text. It is consistent with the Civil Rights Act‘s requirement that citizens be “not subject to any foreign power.” 14 Stat. 27. A person born in the United States to temporary visitors was subject to a foreign power—namely, the power of his home country in which he retained his domicile. See The Venus, 8 Cranch, at 277–279; The Pizarro, 2 Wheat., at 246. It is consistent with the early American law of state and national citizenship, which turned on domicile. Brown, 8 Pet., at 115; The Venus, 8 Cranch, at 277–278; Webster Report 2–3. It overrules Dred Scott because it restores the rule of decision under which Scott should have won—namely, that he was entitled to sue as a “citizen” of Missouri because he had a “permanent domicil in the State.” Dred Scott, 19 How., at 531 (McLean, J., dissenting); accord, Brief for Dred Scott 6. It excludes tribal Indians because they remained first and foremost subject to their separate nations, which alone had complete jurisdiction over them. See Elk, 112 U. S., at 101–102. And, it ensures that the freedmen, who were clearly American, would not be denied citizenship based on a racial caste system.11
The phrase thus also had the implication that the drafters and ratifiers said that it had: The children of temporary visitors were not citizens. The Citizenship Clause, they said, “w[ould] not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers.”
2
The Court‘s alternative theory is more difficult to square with the text.
a
The Court defines the phrase “subject to the jurisdiction” of the United States to refer to “the power of the United States to govern those within its territory.” Ante, at 11. It then says that at least three categories of persons born within United States territory are not subject to its jurisdiction.
First, a person is not subject to the jurisdiction of the United States when the Government “impliedly waive[s]”
Second, the Court says, a person is not subject to the jurisdiction of the United States when the Government lacks “actual power” over him. Ante, at 3. This category, presumably, is an attempt to accommodate the consensus that citizenship would not have been granted to the children of foreign invaders. See Brief for Respondents 1 (recognizing exception for a person in an “occupying arm[y]“); CASA, 606 U.S., at 884 (SOTOMAYOR, J., dissenting) (recognizing exception for a person “born of alien enemies in hostile occupation” (internal quotation marks omitted)). But, while the child of a foreign invader is of course not constitutionally entitled to citizenship, it is not because America lacks “actual power” over him. If it were, then citizenship could be denied to any American over whom the Government happened to lack “actual power” at birth. The more likely reason why foreign invaders are not citizens is that they too are foreign and not domiciled here.
Third, the Court says, a person is not subject to the jurisdiction of the United States when he is a “membe[r]” of an “alien and sovereign” nation. Ante, at 5 (internal quotation
b
The Court‘s definition also cannot be reconciled with the contextual evidence that would have informed the meaning of the Citizenship Clause.
The Court does not attempt to explain how its reading of the Citizenship Clause comports with the Civil Rights Act‘s citizenship provision. The Court does not present evidence that the children of temporary visitors were “not subject to any foreign power,” as the Civil Rights Act required. Temporary visitors were subject to the foreign power of the government of their domicile. See Part I-B-2, supra; see also Brief for Tennessee et al. as Amici Curiae 8-9. The Court also does not present any evidence that the Citizenship Clause had a different meaning from the Civil Rights Act. As no party here disputes, the two provisions were agreed to have been synonymous with respect to foreigners. See
The Court likewise cannot explain the evidence that citizenship in this country was instead based on domicile. See Part I-A-1, supra. It does not meaningfully engage with the congressional debates, during which this provision was extensively discussed. See Part I-D, supra. And, it has no account of why so many legislators made so many statements irreconcilable with its view. See ibid.
In fact, the Court does not even identify anyone who expressed the feudal principle in the relevant language—“not subject to any foreign power” or “subject to the jurisdiction” of the United States. The closest that it comes is Lynch v. Clarke‘s use of the phrase “within the jurisdiction,” see ante, at 6, 10, language that denotes “territorial jurisdiction,” Schooner Exchange v. McFaddon, 7 Cranch 116, 137 (1812). But, Congress conspicuously chose not to use that broader territorial phrase in the Citizenship Clause. Notably, the
I would not interpret “subject to the jurisdiction” to refer to the exclusion of three bespoke categories of persons whose relationship to the sovereign was not described in those terms. There is a simpler interpretation of the text that was expressly endorsed by those closer in time to ratification: Children born to diplomats, hostile alien occupiers, and Indians in tribes were not citizens because they were not subject to the complete jurisdiction of the United States. For the same reason, the children of foreign temporary visitors, who were also not subject to the complete jurisdiction of the United States, were also not citizens.
B
Practice and precedent immediately and long following ratification support the same conclusion. In constitutional law, this Court often pays close attention to how government officials interpreted and applied a constitutional provision shortly after its enactment. See Stuart v. Laird, 1 Cranch 299, 309 (1803); Trump v. Slaughter, 609 U.S. ___, ___–___ (2026) (slip op., at 9–13). Here, the Executive Branch, Congress, and the Judiciary all largely interpreted the Citizenship Clause to require domicile in the decades following ratification.
1
The Executive Branch regularly denied citizenship to the children of temporary visitors under the Citizenship Clause.
The Executive Branch‘s position, from the outset, was that the Citizenship Clause excluded the children of aliens who were not subject to the “complete jurisdiction” of the United States. See 14 Op. Atty. Gen., at 300. Therefore, a child born in the United States but “domiciled” abroad was “on his birth ‘subject to a foreign power’ and ‘not subject to the jurisdiction of the United States.‘” Letter from Sec. of
Against this settled course of practice, the Court can find only a single executive decision from the entire 19th century that it believes supports its interpretation. Ante, at 13. But, in that case, the Executive Branch ultimately ruled that the claimant—Francois Heinrich—was not a citizen. Heinrich was born on American soil and did not fall into any of the Court‘s three exceptions, but Secretary of State Hamilton Fish still concluded that he was “not an American citizen” because he resided in Austria. Letter to Baron Lederer (Dec. 24, 1872), in 2 Wharton Digest 395-396. The Court understands the Executive Branch to have concluded that Heinrich was “originally clothed with American nationality” but then lost that citizenship upon returning to his domicile abroad. Ante, at 13 (internal quotation marks omitted). Even the Court is thus forced to embrace an interpretation of the Citizenship Clause that allows the political branches to deny citizenship to persons born here to temporary visitors. On that interpretation, the political branches can deny citizenship to such persons once they return home.
Beyond that single case, the Court does not dispute that the many other 19th-century executive decisions were
2
Congressional practice supports the same conclusion. “[E]arly congressional enactments provide contemporaneous and weighty evidence of the Constitution‘s meaning.” Utah v. Evans, 536 U.S. 452, 503 (2002) (THOMAS, J., concurring in part and dissenting in part) (internal quotation marks and alterations omitted). Congress could have enacted a statute that referred to the Court‘s three categories of exceptions. Instead, in 1870, the Reconstruction Congress reenacted the Civil Rights Act, which expressly excluded all persons “subject to any foreign power.”
Congress left the language excluding persons “subject to any foreign power” in place until 1940. See, e.g.,
The Court has no explanation for the Reconstruction Congress‘s 1870 decision to exclude from citizenship all persons “subject to any foreign power.” It appears to concede that it cannot reconcile its interpretation of the Citizenship Clause with that statute. See ante, at 23-25. And, the Court recognizes that “every child born to” temporary visitors was subject to a foreign power. See ante, at 24; see also Part I-B-2-b, supra. According to the Court, then, Congress defied the Citizenship Clause immediately after enacting it.
3
Early judicial precedent supports the same conclusion. In 1873—five years after ratification—this Court described the Citizenship Clause in a manner that is, on the Court‘s view, indefensible. It stated that the Clause “exclude[d] from its operation children of . . . citizens or subjects of foreign states born within the United States.” Slaughter-House Cases, 16 Wall., at 73. The Court rejects that position today, but declines to address its previous interpretation.
C
Decades of postratification scholarship interpreting the Citizenship Clause confirmed this view.
Most interpreters of the Citizenship Clause concluded that it required domicile. The Citizenship Clause, scholars said, required that a child born here of alien parents show that those parents were “permanently domiciled within the United States.” Robinson, Notes on Elementary Law, at 70. It excluded those with “allegiance to some other government.” Cooley, General Principles of Constitutional Law, at 243. Children born in the United States, their “parents not being here domiciled, are not citizens.” Wharton Treatise 1880, at 41. “The words ‘subject to the jurisdiction thereof,’ . . . exclude[d] the children of foreigners transiently within the United States.” Morse, Treatise on Citizenship, at 248. Children “born in the United States to foreigners here on transient residence” were not “subject to the jurisdiction of the United States.” 2 Wharton Digest 393-394. A “child born here” to parents “temporarily residing” was “not a citizen of the United States, because it was not subject to its jurisdiction.” S. Miller, Lectures on the Constitution of the United States, at 279.
Many more agreed: The Citizenship Clause excluded the “children of foreign subjects, born while the latter transiently sojourn here.” Lesser, Citizenship and Franchise, 4 Colum. L. Times, at 146. The “children of foreigners, in
* * *
The Court does not attempt to match this postratification evidence. To the contrary, the Court acknowledges that—at least by the 1880s—the Citizenship Clause was understood to require domicile by the “Government,” the “Executive Branch,” the “State Department,” “scholars,” and “treatises.” Ante, at 14, 21. The Court, though, proposes that this widespread understanding was not evidence of the original public meaning of the Citizenship Clause, but a rebellion against it. Ibid. The scholars, courts, and government officials who held that domicile was required, the Court says, were engaged in a law-reform effort. Their motive, the Court seems to say, was to deny citizenship to Chinese immigrants, especially around “the election of President Cleveland, the first Democrat to hold the office since the Civil War.” Ibid. On this basis, the Court suggests ignoring the considerable postratification practice and scholarship that is incompatible with its view. Ibid.
If all three branches of the Federal Government were not enough, many others concurred during these first two decades. The Court cannot explain why, in the 1870s, William Robinson wrote that children “born within the territory of the United States, of alien parents” were not citizens unless “permanently domiciled within the United States,” Robinson, Notes on Elementary Law 70; why California excluded from citizenship “children of transient aliens,”
The Court‘s theory does not even explain the later evidence that it characterizes as a revisionist project. If, as the Court suggests, various government officials and scholars were trying to prevent the children of Chinese immigrants from being citizens, then they would not have proposed a domicile requirement alone. They would have needed to propose a citizenship requirement. As Wong Kim Ark exemplifies, many Chinese immigrants were already domiciled here; they simply were ineligible for formal naturalization. See 169 U.S., at 652; Part I-E-3, supra. Accordingly, when the Executive Branch did attempt to exclude the Chinese in the 1890s, it argued against the domicile rule. See Part I-E-3, supra. Meanwhile, as far as I can tell, the people excluded by the domicile requirement were not Chinese, contra, ante at 21, n. 7, but mostly European. Children such as Joseph Speck of Switzerland, Ludwig Hausding of Saxony, Richard Greisser of Germany, Freiderich de Bourry of Austria, and the child of Mary Deveraux of Ireland are unlikely targets of a campaign of anti-Chinese discrimination. See Part I-E-1-a, supra.
The more likely explanation for why so many Americans stated that the Citizenship Clause required domicile is that the Citizenship Clause required domicile.
D
Many other indicators of original public meaning support the domicile requirement. I briefly address three.
First, if the Court were right that the Citizenship Clause did not require domicile, then it would have increased dual nationality, which would have provoked concern among 19th-century Americans. “The United States has long recognized the general undesirability of dual allegiances.” Savorgnan v. United States, 338 U.S. 491, 500 (1950). “[A]t the time of ratification,
Opposition to dual nationality was especially strong after the Civil War. “The country had just emerged from a civil war that cost the lives of over 600,000 men due to a treasonous denial of allegiance to the Union—the United States. Going forward, there would be no national citizenship absent a reasonable expectation of national allegiance.” Lash, 101 Notre Dame L. Rev., at 141 (emphasis deleted). An 1868 congressional report explained that if a person was a national of both his home country and the country of his birthplace, it could “expos[e]” him to competing claims for “compulsory military service,” or could cause him to be “summoned to fight for Governments with which [he] ha[s] no connections, and against those with which [his] fortunes are indissolubly united.” Report of 1868, at 100; accord, Kawakita v. United States, 343 U.S. 717, 733, 736 (1952). “The intimate association of those who are claimed as subjects of foreign Governments is such as to put in peril the rights or peace of all.” Report of 1868, at 100. Accordingly, this Court has long resisted reading the Citizenship Clause to inhibit the political branches’ ability to address “problems attendant on dual nationality.” Rogers v. Bellei, 401 U.S. 815, 831 (1971).
A rule that recognized the citizenship of children born to temporary visitors would have increased dual nationality. At the adoption of the Citizenship Clause, as today, most nations treated the children of their citizens born while
Second, the domicile rule aligns national citizenship with the longstanding rule for state citizenship. Even after the Court‘s decision today, Americans are citizens of only the State of their domicile, even if it is not the State of their birth. Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 318 (2006). No one doubts that a child born to New Yorkers on vacation in Florida would be treated as domiciled in, and a citizen of, New York. Brief for Sen. Eric Schmitt et al. as Amici Curiae 7, n. 2. For the same reason, one would think that a child born to Canadians on vacation in Florida should not be a citizen of the United States. The Court, in other words, rejects and is bewildered by an approach to citizenship that is in fact the one we still know best.
Third, the domicile rule would make the Citizenship Clause accord with America‘s treatment of its own domiciliaries abroad. America itself has long taken the position that children of American citizens born on temporary visits abroad are American citizens. See, e.g.,
IV
The Court‘s alternative history is mistaken.
A
The Court‘s theory of the Citizenship Clause stands on three main pillars: Calvin‘s Case, Lynch v. Clarke, and Wong Kim Ark. None can justify the Court‘s decision today.
1
The first pillar of the Court‘s theory is Calvin‘s Case, a 418-year-old English common-law decision. Calvin‘s Case held that a child born in Scotland could hold land in England. See 7 Co. Rep. 1a, 77 Eng. Rep. 377 (K. B. 1608). According to the Court, Sir Edward Coke‘s separate opinion in Calvin‘s Case established the “common law” principle called “jus soli,” pursuant to which people owed perpetual feudal allegiance to the King of England if they were “‘born within the dominions‘” that he owned. Ante, at 3-4. This principle applied to all persons born on the land, not just those domiciled there. As the Court tells it, the 1608 feudal principle as described by Coke was adopted as the law of citizenship in America and then incorporated by reference in the Citizenship Clause. Ante, at 2-9.
The English principle was a rule of feudal servitude, not a rule of citizenship. “[I]n England there was no such thing as a citizen.” Hamburger, Allegiance, Birthright, and Citizenship. The English principle instead determined a person‘s permanent feudal bondage to the King, which he could not unilaterally abandon. It was based on the notion that “[a] man owed personal service to the lord of the soil, the same as his master owed it to the king; and it was born with the child and only ended in the grave“—a relation of “master and servant.”
The English feudal principle “was not accepted by the American governments.” Report of 1868, at 95. As JUSTICE ALITO explains, the principle that birth on the soil made a person perpetually bound to the King was premised on the theory that the King was anointed by God to rule the people like children. Post, at 4–5 (dissenting opinion). John Adams famously wrote that the feudal theory meant that “the common people were held together, in herds and clans, in a state of servile dependence on their lords” in “a state of total ignorance of every thing divine and human.” 1 Papers of John Adams 113 (1977) (Adams). Americans “emphatically rejected” this theory. Post, at 5 (ALITO, J., dissenting). “[T]hey began their settlements, and formed their plan both of ecclesiastical and civil government, in direct opposition to . . . the feudal syste[m].” 1 Adams 114. They then dissolved “all Allegiance to the British Crown.” Declaration of Independence ¶32. And, they set up a new system of government in which the people were not regarded as servile dependents. Instead, the people were sovereign, and the government derived its legitimacy from them. Declaration of Independence ¶2. In this new system of government, feudalism had no place. See 1 Adams 111-115; M. Rothbard, Conceived in Liberty 532-573 (2011). The soil did not belong to the government, but to the people. And, those who
The Reconstruction Congress expressly opposed the feudal principle that the Court claims that it adopted. Contra, ante, at 25–26 (majority opinion). As its Committee on Foreign Affairs saw the matter, “[t]here is nothing American in the oath of the land barons of England.” Report of 1868, at 99. It described the English rule‘s “claim of indefeasible allegiance and perpetual service” as “the symbol of feudalism and force.” Id., at 96. Instead of the feudal principle, the congressional Report explained that American law viewed people as taking on a new citizenship, as relevant here, when they changed their “domicile.” Id., at 100. The same year that the Citizenship Clause was ratified, Congress passed a statute rejecting the feudal principle and explaining that it supported the right of all persons to expatriate and change their citizenship.
In fact, by the 1840s, even English law had evolved. England had moved on from “the darkness of the middle ages” and—as the “subjects of one kingdom began to migrate into and reside in other countries“—had begun to attach a newfound “importance to the Law of Domicil.” Law of Domicil 14. Well before the Citizenship Clause, this Court explained that “the Courts of England ha[d] decided, that a person who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes, by these acts, such evidence of an intention permanently to reside there, as to stamp him with the national character of the state where he resides.” The Venus, 8 Cranch, at 279. A year after the Citizenship Clause, a renowned English case declared that a person‘s civil status, “by virtue of which he has ascribed to him the character of a citizen of some particular country,” is “governed universally by one single principle, namely, that of domicil.” Udny v. Udny, (1869) SC (HL) 441, 457 (Scot).
The second pillar of the Court‘s theory is Lynch v. Clarke—a “single state-court case about citizenship,” ante, at 19–20, from 1844. Thomas Lynch was a successful businessman in New York. When he died, he had no will and no children. Shortly after he died, his brother Bernard and his niece (through another brother) Julia moved to New York from Ireland. The New York Legislature then passed a special statute giving Lynch‘s property to Julia Lynch, subject only to the rights of the “heirs at law of Thomas Lynch.” 1 Sand. Ch., at 586. The legislature then passed another special statute giving Lynch‘s property to Bernard Lynch, save for “the claims of heirs of Thomas, and the existing rights of Julia Lynch.” Ibid. Lynch‘s business partner, John Clarke, also claimed a right to property in his estate.
Bernard then brought a bill in equity against both Julia and Clarke. Julia cited the special statute giving her inheritance rights, but also argued that because she was born in the United States, she inherited all of Thomas‘s property and had other equitable entitlements. That argument turned on a state-law bar on aliens inheriting real property, so Julia argued that she was not an alien. She argued, among other things, that she was not an alien because she was in fact domiciled in the United States at the time of her birth: Her father “came here with an intention to remain, and thereby changed his domicil.” Id., at 632.
The assistant vice chancellor who was assigned the case held six days of argument, during which Julia Lynch‘s citizenship “was not then made a very prominent point.” Id., at 588. After argument, the assistant vice chancellor “became so impressed with the importance of the question upon the citizenship of Julia Lynch” that he asked for supplemental briefing on the issue. Ibid. He then wrote a long opinion explaining his theory of American citizenship, which concluded that Julia Lynch was not an alien, but a
The Court‘s reverence for Lynch v. Clarke is not commensurate with its importance. Lynch was not a precedent of this Court, or any federal court, or any state appellate court, or even a court of law. Instead, it was decided by a New York “assistant vice-chancellor” in a court of equity‘s equivalent to a trial court. The assistant vice chancellor, much like a magistrate judge, had the power to hear “preliminary motion[s] for the suppression of testimony” and cases “refer[red]” to him by the chancellor. See
Lynch also did not interpret the Citizenship Clause, a statute using the same language as the Citizenship Clause, or even a statute that remained in effect at the time of the Citizenship Clause. Instead, it interpreted a New York state law. The state law was replaced immediately after Lynch. See 1 Sand. Ch., at 583, n. a., 620;
Lynch also lacked staying power. By the time of the Citizenship Clause, New York‘s higher courts had all but abrogated it. In Ludlam v. Ludlam, a New York appellate court held that the children of those “traveling or sojourning abroad,” “though born in a foreign country, are not born under the allegiance, and are an exception to the rule which makes the place of birth the test of citizenship.” 31 Barb., at 503. That decision was affirmed by the New York Court of Appeals, which stated: “By the law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular.” Ludlam v. Ludlam, 26 N.Y. 356, 368 (1863) (emphasis deleted); see also Mayton, 22 Geo. Immigration L. J., at 240 (“shortly thereafter, in Ludlam v. Ludlam, that state‘s highest court with all justices concurring spoke differently, saying that birthright citizenship depended on parentage rather than the ‘boundaries of the place‘“). When the New York Legislature authorized a committee to codify its laws in 1860, the codification defined birthright “citizens” as “[a]ll persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls.”
3
The third pillar of the Court‘s theory is Wong Kim Ark. The question before the Court today—whether the Citizenship Clause requires the President to recognize citizenship for the children of all lawful temporary visitors and illegal aliens—was not before the Court in Wong Kim Ark. Instead, the Wong Kim Ark Court held that someone born in America to parents domiciled in the United States was a citizen. It rejected the Government‘s argument that Wong‘s parents had to be citizens for him to be a citizen at birth.
The Citizenship Order is fully consistent with this decision. Under the Order, people like Wong remain citizens, and the Government today nowhere urges the position that it took in Wong Kim Ark. To the contrary, it invokes authorities that the Government in Wong Kim Ark opposed. Compare Brief for Petitioner 13–43 (arguing for domicile rule) with Brief for Appellant in Wong Kim Ark, O. T. 1895, No. 904, at 13–31 (arguing against domicile rule). The Court nonetheless leans heavily on dicta from the majority opinion in Wong Kim Ark, which it takes to have established that Wong‘s domicile was irrelevant, and that he—a
The Court does not ordinarily put so much weight on past decisions’ discussion of matters not before the Court. “It is a maxim not to be disregarded,” this Court has always admonished, “that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.” Cohens v. Virginia, 6 Wheat. 264, 399 (1821). Thus, if they “go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Id. “Instead, we emphasize, our opinions dispose of discrete cases and controversies and they must be read with a careful eye to context.” National Pork Producers Council v. Ross, 598 U. S. 356, 373–374 (2023). After all, “[t]he question actually before the Court is investigated with care, and considered in its full extent,” but “[o]ther principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” Cohens, 6 Wheat., at 399–400. Cf. Trump v. Cook, 609 U. S. ___, ___, n. 3 (2026) (slip op., at 17, n. 3) (“[W]e review judgments, not statements in opinions” (internal quotation marks and alterations omitted)).
Nor is Wong Kim Ark‘s dicta so clearly on the Court‘s side. After a long discussion with many internally inconsistent statements, Wong Kim Ark‘s final statement of the rule comported more closely with the Citizenship Order‘s application to temporary visitors than with the Court‘s view. The Wong Kim Ark Court concluded that the Citizenship Clause grants citizenship to “all children here born of resident aliens, with the exceptions or qualifications” of (1) “children of foreign sovereigns,” (2) children of foreign “ministers,” (3) children “born on foreign public ships,” (4) children “of enemies within and during a hostile occupation of part of our territory,” and (5) “children of members of the
Wong Kim Ark also repeatedly emphasized that its holding was limited to domiciliaries. See Part I–E–3, supra. It did so seven times in the first paragraph and repeatedly after that. Id., at 652. And, presciently, Wong Kim Ark itself invoked this Court‘s oft-repeated reminder that “general expressions” that “go beyond the case” should not “control the judgment in a subsequent suit when the very point is presented for decision.” Id., at 679 (internal quotation marks omitted). “This is not quite ‘no, no, a thousand times no,’ but should have sufficed to dissuade the [Court] from invoking the case with respect to the distinct legal and factual issues presented here.” Learning Resources, 607 U. S., at 254–255, n. 6 (citation omitted).
It is not surprising that Wong Kim Ark limited its holding to domiciliaries. The Government in Wong Kim Ark stipulated that Wong was domiciled in the United States and argued that domicile was irrelevant. See Part I–E–3, supra; Brief for Appellant, O. T. 1895, No. 904, at 13–29. The Court thus had little reason to consider what rule would apply to a temporary visitor. The Court was hardly likely to upset the consensus that the Citizenship Clause required domicile in a case where the issue was irrelevant given Wong‘s domicile in this country. See Part I–E, supra.
If Wong Kim Ark were so “simple” in establishing the Court‘s rule as to temporary visitors, ante, at 16, that meaning was seemingly lost on many. As a Department of Justice report confirmed in 1910, a dozen years after Wong Kim Ark, “it has never been held, and it is very doubtful whether it will ever be held, that the mere act of birth of a child on
In the years following Wong Kim Ark, the Citizenship Clause was generally understood as limited to children born of “alien parents, not temporarily resident here, but permanently domiciled.” Brannon 29. Nothing in Wong Kim Ark changed the consensus that “children born in the United States to foreigners here on transient residence are not citizens, because by the law of nations they were not at the time of their birth ‘subject to the jurisdiction‘” of the United States. Taylor, International Public Law, at 220; accord, e.g., Hall, International Law, at 227 (1904) (“[I]t would seem that the children of foreigners in transient residence are not citizens“); 1 Wharton, Conflict of Laws 42–45 (1905) (“citizens” must be “domiciled“); Guthrie, Lectures, at 57 (“permanently domiciled and residing here“); Westlake, International Law, at 220 (when a father is “in the Union for a transient purpose,” his children “born within it have his nationality“); Black, Handbook of American Constitutional Law, at 634 (3d ed. 1910) (no citizenship for child of “a stranger or traveler passing through the country, or temporarily residing here“); 1 Bellott, Leading Cases on International Law, at 183 (“[C]hildren . . . of foreigners in transient residence . . . are excluded from citizenship, even though born within the United States“).
As for the remainder of the Court‘s reasoning, much of it is self-defeating.
To begin, the Court invokes Frederick Douglass‘s statement that “[t]he Constitution knows all the human inhabitants of this country as ‘the people.‘” Ante, at 7 (quoting 2 Douglass 415). But, temporary visitors are not “inhabitants“; to be an inhabitant, a person must be domiciled. See T. Cooley, Constitutional Limitations 661 (2d ed. 1871) (“[O]ne is an inhabitant, resident, or citizen at the place where he has his domicile“); Crawford v. Wilson, 4 Barb. 504, 520 (NY 1848) (“Inhabitant is defined to be one who has his domicil in a place,” “‘as distinguished from an occasional lodger or visitor‘“); Sears v. Boston, 42 Mass. 250, 251 (1840) (“the domicil, or the fact of being an inhabitant“); Littlefield v. Inhabitants of Brooks, 50 Me. 475, 478 (1862) (“where he was an inhabitant—where he had a domicil“). And, Frederick Douglass himself argued that blacks were citizens because they were not comparable to temporary visitors—they were not “aliens“; they were not “exiles“; and they were not “strangers.” 2 Douglass 255–256. Instead, they were “Americans,” he said, who—unlike temporary visitors—“owe equal allegiance to the same government.” Id., at 255, 265.
Likewise, the Court invokes Attorney General Bates‘s statement that persons born here were “prima facie” citizens. See ante, at 8. But, the Court does not seem to be aware that this phrase corresponds to the rule of domicile that the Court rejects. See President and Fellows of Harvard College, 22 Mass., at 375 (“[T]he place of birth” is “prima facie evidence of domicil“); see also, e.g., Overseers of Readington v. Overseers of Tewksbury, 2 N. J. L., at 289; Story on Conflict of Laws 45. If a person‘s parents were domiciled abroad, then the prima facie case was overcome. See Part I–B, supra.
Finally, the Court relies on general statements without recognizing that those statements are also compatible with my view of the Citizenship Clause. The Citizenship Clause indeed followed the pre-existing law, see, e.g., ante, at 9, but the pre-existing law was based on domicile, see Part I–A, supra; children born here to foreign parents indeed were generally citizens, see e.g., ante, at 5, but that is because they were generally domiciled here, see Part I–A, supra; and citizenship did indeed almost always follow birthplace, see, e.g., ante, at 8–9, but that is because birthplace almost always followed domicile, see Part I–A, supra.
B
The Court‘s responses to my view also undermine its own. The Court criticizes my view for depending on “the parents’ status, not the child‘s.” Ante, at 14. But, the Court‘s view depends on the “parents’ status,” too. The Court, for example, excludes from citizenship the children of
The Court also suggests that my interpretation of the Citizenship Clause is not consistent with the Civil Rights Act‘s “not subject to any foreign power” requirement because a foreign nation can purport to exercise power over its original citizens even after they establish a domicile here. Ante, at 23–24. But, the Court‘s interpretation of the Citizenship Clause does not even attempt to be consistent with the Civil Rights Act‘s requirement, since the children of temporary visitors are clearly subject to the foreign power of their homeland. See Part I–B–2, supra. Regardless, the Court is wrong about domiciliaries’ remaining “subject to” the foreign power of their country of birth. Although their nation of origin might purport to exercise jurisdiction over them, the United States would not have had to recognize that authority as lawful once those persons were domiciled here. See Part I–B–2, supra.
V
Before concluding, I briefly address plaintiffs’ argument that even if the Citizenship Order has at least some lawful applications consistent with the Citizenship Clause, it is not consistent with the statutory citizenship provision in force today. The Court gives no independent import to the statutory citizenship provision, and I would not, either.
From 1866 until 1940, the statutory citizenship provision required that a person claiming citizenship based on birth in the United States be “not subject to any foreign power.” See
The
A codification of existing law does not change the law unless it does so clearly. When legislatures “consolidate their statutes at large into a code,” they “often revise the wording of the prior statute to provide for consistency of expression. But that revision does not result from legislative reconsideration of the substance of codified statutes.” A. Scalia & B. Garner, Reading Law 257 (2012). The same is true for “legislative restyling exercises short of codification.” Ibid. Such “new language does not amend prior enactments unless it does so clearly.” Ibid.; see also, e.g., Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 318 (1985); Wingo v. Wedding, 418 U. S. 461, 469, and n. 9 (1974); Rainbow Nav., Inc. v. Department of Navy, 783 F. 2d 1072, 1076 (CADC 1986) (Scalia, J., for the court).
VI
The Fourteenth Amendment was enacted in the wake of the Civil War, “with the one pervading purpose” of securing equal citizenship for the freed slaves. Slaughter-House Cases, 16 Wall., at 71. It was enacted, as Justice Harlan wrote, “to secure to a race recently emancipated” the “civil rights” that other citizens enjoyed. Plessy, 163 U. S., at 555–556.
This Court has time and again denied Americans that promise. Shortly after the Amendment was ratified, this Court deprived black citizens of the right to peaceably assemble and to keep and bear arms. See United States v. Cruikshank, 92 U. S. 542 (1876); see McDonald, 561 U. S., at 808–809 (THOMAS, J., concurring in part and concurring in judgment). A little later, in Plessy, the Court upheld the subjugation of black citizens in the form of state-coerced racial segregation. 163 U. S. 537. When it had an opportunity to correct that profound error, it did so narrowly. See Brown v. Bd. of Ed., 347 U. S. 483, 494, and n. 11 (1954). It then used that very decision to justify busing American children to different schools based on their race. See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 (1971).
Meanwhile, the Court has repurposed the Fourteenth Amendment to protect its own set of preferred rights that the Reconstruction Congress never contemplated and that cannot find support in its text. Today, the Court does so again by recognizing a constitutional right to citizenship for the children of all foreign birth tourists and illegal aliens.
VII
I am not sure that today‘s opinion will stand the test of time. The Citizenship Clause “added greatly to the dignity and glory of American citizenship.” Plessy, 163 U. S., at 555 (Harlan, J., dissenting). Today‘s opinion devalues that citizenship. I respectfully dissent.
JUSTICE ALITO, dissenting.
This is one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake. As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of “birth tourists,” women who come here solely for the purpose of giving birth to a child and then promptly return home. Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption shows that it does not degrade the concept of United States citizenship in this way. Instead, the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.
Respecting this interpretation would not require uprooting the millions of children who were born here to mothers who entered or remained in this country illegally. Those children are not responsible for their parents’ violation of our immigration laws, and their plight is the result of a long period during which a coterie of actors—Executive Branch officials, States and cities, and a variety of private groups—sent the message to would-be immigrants that our
Congress can and should address their situation. The Fourteenth Amendment dictates who must be a citizen, but it does not address who may be a citizen by Act of Congress. Congress has conferred citizenship on many people who are not made citizens by the Fourteenth Amendment, including children born abroad to American citizen parents. These people and the millions of immigrants who have been naturalized are no less American than those who are fortunate enough to be born here.
For these reasons, the original meaning of the Fourteenth Amendment does not require inhumane results, and we should not adopt an erroneous interpretation of the Fourteenth Amendment simply out of fear of the consequences of “rocking the boat” or as a reaction to current immigration policy.
Nor should we take the position that our hands are tied by dicta in a sprawling 19th-century opinion that is, to put the point gently, very far from a model of careful judicial craftsmanship. Too much is at stake.
United States citizenship is precious. Anyone who has attended a ceremony where citizens are naturalized can see that message on the faces of those who take the citizenship oath. Before saddling the Nation with a medieval rule, we had better be certain the Constitution requires it.
The Court‘s account of the birthright-citizenship rule in American law is roughly as follows. After American independence, the British rule of birthright subjecthood was modified in just one way (to take account of Indians who
Every step of this story is incorrect. The Declaration of Independence repudiated the foundation on which the British rule was based. See infra, at 5. From 1776 until the eve of the Civil War, the status of the rule in this country was unsettled. There is no evidence establishing that the Constitution‘s references to citizens incorporated the British rule, infra, at 5–8, and until the eve of the Civil War, there was little litigation about the meaning of American citizenship, infra, at 9–11. After the war, Congress finally adopted a constitutional provision, § 1 of the Fourteenth Amendment, making certain persons citizens at birth, but that provision differed substantially from the British rule. It specified that a person born here is not a citizen unless his allegiance to the United States is unimpaired by any obligations to a foreign power. Infra, at 11–22. And while Wong Kim Ark included dicta suggesting that the Fourteenth Amendment incorporates the British rule, its actual holding was much narrower, infra, at 22–28, and under that interpretation, respondents’ challenge to Executive Order No. 14160, Protecting the Meaning and Value of American Citizenship, fails, infra, at 36–39.
I
A
According to the Court, the Fourteenth Amendment‘s Citizenship Clause codified the British rule of birthright
That rule did not concern “citizenship.” There was no such thing as a “citizen” of England, Scotland, or Ireland. The inhabitants of the British Isles were the King‘s “subjects.” As Sir Edward Coke explained in Calvin‘s Case, 7 Co. Rep. 1a, 77 Eng. Rep. 377 (K. B. 1608), they acquired that status automatically at birth, and they retained it, like it or not, until they died. Id., at 4b, 77 Eng. Rep., at 382; see id., at 9b, 77 Eng. Rep., at 388 (even a subject who abjures the realm “oweth the King his ligeance“). This status arose from a feudal understanding of the origin of governmental authority and the relationship between those who govern and those who are governed. The King‘s authority was understood to come from God. Id., at 12b–13a, 77 Eng. Rep., at 390–391. As Coke put it, a King ruled by the law of nature. Ibid. And birth established the bond between King and subject, id., at 4b, 77 Eng. Rep., at 382, just as birth establishes the bond between parent and child.
In Calvin‘s Case, the question was whether a man born in Scotland was a subject of King James I of England, who acceded to the thrones of both Scotland and England before the man‘s birth. Id., at 2a, 77 Eng. Rep., at 379. In a famous speech to Parliament, James I forcefully explained his views about the source of his authority and his relationship with his subjects. The King, he proclaimed, sits “upon GOD[‘]s throne” and is the “father of his people.” March 21, 1609 A Speach to the Lords and Commons of the Parliament at White-Hall, in The Political Works of James I, p. 307 (C. McIlwain ed. 1918).
In this system of soil and servitude, the Court sees “emancipation.” Ante, at 26. But our Founders disagreed. The Declaration of Independence emphatically rejected the British theory of government. It proclaimed that governments “deriv[e] their just powers from the consent of the governed,” not divine right. ¶ 2. And it “[a]bsolved” the people of the United States “from all Allegiance to the British Crown.” ¶ 32.
With its foundation blown away, the British rule of birthright subjecthood was not suited for easy incorporation into American law. Accord, ante, at 75–77 (THOMAS, J., dissenting). In addition to the incompatibility of its theoretical foundation, two distinctively American practical problems stood in the way.
The first was the problem of slavery and, more broadly, of race. In England itself, the number of slaves had never approached American dimensions. Just four years before the American Colonies declared independence, Lord Mansfield‘s decision in Somerset v. Stewart, Lofft. 1, 98 Eng. Rep. 499 (K. B. 1772), denied that slavery had any common-law foundation. See id., at 19, 98 Eng. Rep., at 510 (proclaiming that slavery was “so odious, that nothing can be suffered to
In the United States, on the other hand, nearly 700,000 lived in slavery—roughly one-fifth of the country‘s population—according to the first census in 1790. And since the contemporary definition of a citizen was a “freeman of a city; . . . not a slave,” 1 S. Johnson, A Dictionary of the English Language (4th rev. ed. 1773), it was obvious that neither the Articles of Confederation nor the Constitution, both of which allowed slavery to continue, recognized the members of this sizeable population as citizens.
Even for the free black population of the United States, there was substantial opposition to application of the British rule. Many States, both in the South and Midwest, restricted the rights traditionally associated with citizenship—such as the ability to settle, vote, and serve as a witness in court—to white residents.2 And there was some federal support for this understanding of citizenship.3 In Britain, on the other hand, as the Court notes, the common law did not take account of race. Ante, at 5–6.
The second problem was the unique legal status of Indian tribes in the United States. Under the Clause of the Constitution allocating seats in the House of Representatives and Presidential electors, “Indians not taxed” were excluded from the body politic and thereby denied citizenship.
The existence of these two big carveouts refutes any argument that the British rule was transplanted without modification to American soil. Accord, ante, at 62–63 (THOMAS, J., dissenting). And any attempt to plant some version of that rule here also faced the problem of applying it to a Nation that, unlike Britain, had a written Constitution and a federal system.
In Britain, the rule of birthright subjecthood was part of the common law and thus could be changed by Parliament whenever it chose. If the rule was transplanted across the Atlantic, would it have a similar status here? Would it be part of the common law that state legislatures or courts could alter or abandon? See Van Ness v. Pacard, 2 Pet. 137, 144 (1829) (Americans adopted “only that portion [of the common law] which was applicable to their situation“).
Alternatively, did the rule have some status under federal law? Numerous provisions of the Constitution use the term “citizen.” See
In this case, because we are concerned with the meaning of citizenship under the Constitution, it is the second alternative that is important for present purposes. In Lynch v. Clarke, 1 Sand. Ch. 583 (N. Y. Ch. 1844), a decision on which the Court, respondents, and many amici heavily rely, the assistant vice-chancellor of New York suggested that the Constitution‘s references to “citizen” incorporated the
Nothing in the records of the Constitutional Convention supports that conclusion, and the British rule would be a poor fit as an interpretation of the term “citizen” in the provisions governing the qualifications of Members of Congress and the President. An early draft of the Constitution provided that a Representative must have been a “‘citizen of the United States‘” for at least three years, but there was opposition to this provision. 2 Records of the Federal Convention of 1787, p. 216, n. 3 (M. Farrand ed. 1911). One delegate argued that three years was not enough, in part because “a rich foreign Nation, for example Great Britain, might send over her tools who might bribe their way into the Legislature for insidious purposes.” Id., at 216. In response, the delegates voted to require seven years’ citizenship for Representatives and nine years’ citizenship for Senators.
The Presidential Eligibility Clause,
No case concerning the meaning of the term “citizen” in any constitutional provision reached the Supreme Court until Dred Scott v. Sandford, 19 How. 393 (1857). Before then, the British rule did figure in a handful of antebellum Supreme Court decisions, but none of these addressed any constitutional question, and most appear to have regarded the British rule as part of state law on eligibility to inherit property. See Inglis v. Trustees of Sailor‘s Snug Harbour in City of New York, 3 Pet. 99, 120-127 (1830); Shanks v. Dupont, 3 Pet. 242, 245-250 (1830); Lessee of Levy v. McCartee, 6 Pet. 102, 109 (1832).
Not only were there no Supreme Court decisions on the constitutional question, there was not much litigation of any kind on the question of United States citizenship. Both Lynch in 1844, 1 Sand. Ch., at 663, and an 1862 opinion by Attorney General Bates, 10 Op. Atty. Gen. 382, 383, expressed surprise at this dearth. And in our time, when the difference between citizenship and alienage is a hot issue, this dearth may seem very strange. But some obvious explanations come readily to mind.
The question of citizenship came up regularly in cases in which the jurisdiction of a federal court was invoked based on diversity of citizenship, but the issue in those cases was whether one or more of the parties were citizens of a particular State, not whether they were citizens at all. A party wishing to challenge federal jurisdiction had no incentive to argue that an adverse party was an alien because both
As for the other constitutional provisions that use the term “citizen,” it appears that the question simply did not
In the years before the Civil War—and indeed, until many years thereafter—the distinction between citizens and aliens meant less than it does today. During that period, immigration was unrestricted, so aliens could come and stay as long as they wanted. M. LeMay, An Overview of Immigration to the United States: Founding to 1865, in 1 Transforming America: Perspectives on U. S. Immigration 1 (2013). And in an era when transatlantic travel was slow, unpleasant, expensive, and sometimes perilous, it is likely that the vast majority of those who sailed across the Atlantic intended to remain.
If that was their choice, naturalization, as noted, was easy. And if for whatever reason a person who intended to make a permanent home here did not do what was needed to apply for naturalization, the lack of citizenship did not matter as much as it would in later years. In some places, aliens could even vote and hold elective office. Id., at 17.
Whatever the reasons, the issue of citizenship came up in only a few cases, and except for those involving the question of citizenship for free black people, the cases did not involve questions of much public importance. Legal treatises, to be sure, included comments on birthright citizenship, but those comments were not informed by judicial decisions.
The important point for present purposes is that during the antebellum period, there was no settled understanding about the meaning of citizenship under the Constitution. And there certainly was no settled understanding about the citizenship of a child born on United States soil to parents
II
A
After the Civil War, Congress faced enormous challenges, and one of these was ensuring that all black Americans, both the newly freed slaves and those who were free before the war, would be treated as citizens of the United States and of the States in which they lived. Congress addressed that issue in the landmark
In tackling that question, an avowedly textualist Court should start by carefully examining the text of the Citizenship Clause of the
That Clause states: “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.”
Thus, birthright citizenship has two separate elements. First, a person must be “born in the United States,” and second, he or she must be “subject to the jurisdiction thereof.” It is therefore critical to ascertain the meaning of “subject to the jurisdiction thereof.” And that is no easy task because, as we have often remarked, jurisdiction is a
If “subject to the jurisdiction” of the United States had been a term of art during Reconstruction, we would presumably hold that the phrase has that meaning in the
If the Citizenship Clause set out specifically named exceptions to the general rule of citizenship by birth, our job would be easy; we would follow those exceptions. But the Citizenship Clause is framed differently. It sets out a general rule: Citizenship is not conferred upon a person born in the United States unless that person is also “subject to the jurisdiction” of the United States. By its terms, that rule applies across the board. And when a legislative body chooses to adopt a generally worded rule, we apply it in all circumstances that fall within the rule, not just those that were on the minds of the legislators at the time of adoption. NLRB v. SW General, Inc., 580 U. S. 288, 306 (2017); Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998); Brogan v. United States, 522 U. S. 398, 403 (1998). We approach constitutional interpretation similarly. Ante, at 5-7 (KAVANAUGH, J. concurring in judgment and dissenting in part).
So what does the phrase “subject to the jurisdiction thereof” mean? Unfortunately, the text of the
First,
Second, the phrase “subject to the jurisdiction” of the United States applies not only to those who are born in this country but also to those who are “naturalized.” After all, Congress would not include both qualifiers unless they were both doing some work. See Bufkin v. Collins, 604 U. S. 369, 386 (2025). Accordingly, there must be some people who are naturalized but are not “subject to the jurisdiction” of the United States. In other words, whatever “subject to the jurisdiction” of the United States means, it must mean something that is not inherent in naturalization.
B
1
Although the text of the
The 39th Congress debated the CRA from January to March 1866, when it was passed and sent to President Johnson for his signature.5 Congress debated the
In addition, one of the chief reasons for the adoption of the
I therefore turn to the text of the CRA‘s citizenship provision. It provided that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” §1, 14 Stat. 27.
That language preserved two exceptions that were well-known and well-accepted at the time. The first was for the children of diplomats. The second was for Indians who had not left their traditional way of life and continued to live with other members of their tribes under the governance of tribal leaders.
The other exception—for the children of diplomats—was one that had been recognized under the British rule and was endorsed by leading authorities on the law of nations. E. de Vattel, The Law of Nations §217, p. 103 (1797). This was a minuscule category at best, and Congress could have preserved the exception with narrow language applicable only to the members of that group. For example, it could have said something like this: “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed and the children of foreign diplomats, are hereby declared to be citizens of the United States.” Congress did not take that approach. It chose
With this understanding of the CRA‘s citizenship test in mind, we may return to the text of the
The children of diplomats were not subject to this complete jurisdiction because they were citizens or subjects of the countries represented by their fathers and thus bore duties to those countries. Likewise, tribal Indians were not subject to the United States’ exclusive jurisdiction because they were bound to obey tribal law. But they were certainly subject to the jurisdiction of the United States in a different sense of the concept. That is, they were subject to regulation by the Federal Government. After all, their tribes were “domestic dependent nations,” Cherokee Nation, 5 Pet., at 17 (emphasis added), and even though the Government allowed tribes a large measure of self-government, it consistently asserted its jurisdiction to intervene.
In 1817, for example, federal criminal jurisdiction was extended to many crimes committed within the Indian country, Act of Mar. 3, 1817, ch. 92, 3 Stat. 383, and the Indian
This understanding of the phrase “subject to the jurisdiction thereof” also explains why naturalized citizens must foreswear all other allegiances when they become United States citizens. From the earliest days of our Republic until now, Congress has required naturalized citizens to “renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the applicant was before a subject or citizen.”
In sum, the
The Court interprets “subject to the jurisdiction thereof” differently. In its view, the phrase simply means subject to the laws that apply to everyone who is present within the country‘s borders. See ante, at 10-11. That interpretation, however, presents fatal problems.
First, it gives the
Second, the Court cannot explain why the
For these reasons, the Court‘s interpretation of the
3
The Court does not confront these problems because it pays little attention to the constitutional text. Instead of performing its own textual analysis, the Court leans on precedent that glosses the text. Ante, at 10-12. But none of the cases it cites analyzed the text of the
The Court first cites Lynch, but as JUSTICE THOMAS comprehensively explains, any reliance on Lynch is misplaced. Ante, at 78-81 (dissenting opinion).
Next, the Court turns to Schooner Exchange v. McFaddon, 7 Cranch 116, 147 (1812), which held that a “ship of war” of a “friendly power” could enter a United States port without the risk of seizure. Neither that holding nor the reasoning in Chief Justice Marshall‘s opinion for the Court has any bearing on the meaning of the terms of the
The question in Schooner Exchange concerned the circumstances under which a sovereign is deemed under the law of nations to have implicitly waived part of its otherwise complete sovereignty over its territory. The
4
The interpretation of the
The clearest evidence was provided when the
Other senators quickly agreed. Senator Doolittle called the
Those who disagree with this interpretation have not found any statement in which another Senator expressly disputed Senator Howard‘s and Senator Trumbull‘s interpretation of the amendment. They muster a collection of statements that provide some support for their position, but it is a mistake to attribute too much weight to extemporaneous oral statements, which are often phrased in ways that are not precise. And a single member‘s interpretation of a provision may not be shared by a majority.
I do not suggest that we should base our decision in this case on statements made during the legislative debates on
We should base our decision on the firm ground provided by the constitutional text, but if we look beyond the text, the congressional debates and public commentary confirm that the Citizenship Clause requires complete allegiance.
III
After the ratification of the
That was the state of the Court‘s case law until Wong Kim Ark turned it in a different direction. That case provides the strongest support for today‘s decision, but its holding is not controlling, and I would not allow the meaning of American citizenship to be forever dictated by the opinion‘s dubious dicta. Wong Kim Ark cautioned against assigning too much weight to dicta, 169 U. S., at 679, and it is appropriate to apply that same advice to the opinion in Wong Kim Ark itself.
The Court leans heavily on Wong Kim Ark, which certainly displayed the fruit of considerable research on a range of subjects. But it showed little respect for precedent. Justice Gray, the author of Elk, 112 U. S. 94, also wrote Wong Kim Ark, but he brushed Elk aside on the flimsy ground that it “concerned only members of the Indian tribes” and thus had no bearing on other children. Wong Kim Ark, 169 U. S., at 682.
Wong Kim Ark‘s treatment of the text of the
When the opinion finally turns to the text of the
As for the phrase “not subject to any foreign power” in the
Wong Kim Ark‘s fallback argument is no better than the first. The opinion speculates that Congress might have
That is the extent of Wong Kim Ark‘s analysis of the terms of the
And dicta it is. Sometimes it is not easy to determine the exact contours of a decision‘s holding, but the opinion in Wong Kim Ark obviates that problem. At the end of the opinion, the Court clearly spells out exactly what it held:
“[A] child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.” Id., at 705 (emphasis added).
Thus, the holding of the case was limited to a child born in the United States to parents who were not citizens but had established “a permanent domicil and residence” here. Many other key passages in the opinion confirm this fact:
- “[W]hen the parents are domiciled here[,] birth establishes the right to citizenship,” id., at 692;
- The Citizenship Clause “includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States,” id., at 693;
“Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States,” ibid.; - “[S]ubjects of the Emperor of China, but domiciled in the United States, . . . must be held to be subject to the jurisdiction of the United States,” id., at 696.
The Court dismisses these pointed and repeated references to domicile, arguing that domicile was merely an incidental fact and not an element of the holding. Ante, at 24-25. But Justice Gray had a good reason for pointing out that Wong Kim Ark‘s parents had established their domicile here. A person‘s domicile is the place where he or she intends to live indefinitely. E.g., Ennis v. Smith, 14 How. 400, 422-423 (1853); Mitchell v. United States, 21 Wall. 350, 352 (1875). Therefore, the fact that they had established domicile here meant that they wanted to make the United States their home.
It is telling that Justice Gray‘s statement of the holding also mentioned that Wong Kim Ark and his parents were Chinese. The British birthright-subjecthood rule did not take account of the race or nationality of the alien to whom a child was born within the King‘s domain. See Calvin‘s Case, 7 Co. Rep., at 5b-6a, 77 Eng. Rep., at 383-384. So if the opinion aimed to adopt the British rule (with the one new exception for tribal Indians), there was no need whatsoever for the holding to say anything about the race of Wong Kim Ark or his parents. Yet it did so. And not only that, the opinion spent many paragraphs describing statutes, court decisions, and debates in Congress about the plight of Chinese immigrants. Wong Kim Ark, 169 U. S., at 694-704. The opinion also properly stressed that the fundamental objective of the
Wong Kim Ark is therefore best understood as holding that people who are lawfully present here, establish the United States as their intended permanent home, and do everything within their power to become United States citizens can be seen as no longer subject to any foreign power.9 Thus, their children are born citizens under the
IV
Wong Kim Ark benefited Chinese Americans, but its impact on other immigrants was limited. For decades after that decision, immigration remained largely unregulated. During World War I, however, the Federal Government began to limit the flow of immigrants. In 1917, Congress passed a law that excluded all Asians, implemented a literacy test, and included a long list of criteria for admission. Ch. 29, 39 Stat. 874-878. Later laws, most notably the discriminatory
The story of illegal immigration unfolds in four parts. First, illegal immigration emerged as a notable problem in the 1970s. Second, the Federal Government tried to deal with this problem in 1986 by implementing employer sanctions and amnesty for millions of immigrants, but that attempt failed. Third, the Federal Government—with help
A
Illegal immigration emerged as a national problem in the 1970s, after Congress passed the Immigration and Nationality Act in 1965. That Act eliminated immigration quotas based on national origin and replaced them with a preference-based immigration system that included an overall cap of 290,000 immigrant visas per year. 79 Stat. 911, 921. But demand for visas vastly outstripped supply, thus encouraging migrants to subvert the legal process. B. Montoya, Diplomatic History of US Immigration During the 20th Century 52–53 (2024).
Many immigrants entered or remained illegally for economic reasons. In the United States, opportunities abounded “to pick crops and do other 3D (dirty, dangerous, and demeaning) jobs.” S. Martin, A Nation of Immigrants 212 (2d ed. 2021) (Martin). American employers were all too willing to hire employees who would work for less than the minimum wage and without the benefit of laws protecting employee rights. Id., at 210–212. Yet even these poor working conditions surpassed those in the home countries of many immigrants. C. Bon Tempo & H. Diner, Immigration: An American History 281–283 (2022) (Bon Tempo). This situation created a strong incentive for immigration—both legal and illegal.
As a result, immigration, both legal and illegal, soared. Demographers generally assumed that the size of the illegal-immigrant population in 1960 was “negligible.” J. Robinson, Estimating the Approximate Size of the Illegal Alien
B
Early efforts to solve the illegal-immigration problem failed. In 1977, President Carter proposed an immigration overhaul that floundered due to opposition from his own party‘s core constituencies, including labor unions, Hispanic groups, and environmentalists. Martin 215.
In 1986, more than 20 years after passage of its last major immigration bill, Congress agreed to do something about illegal immigration. It passed the Immigration Reform and Control Act of 1986 (IRCA). See 100 Stat. 3359. This Court, in an opinion by Justice Stevens, described IRCA as a “major statutory response to the vast tide of illegal immigration that had produced a ‘shadow population’ of literally millions of undocumented aliens in the United States.” McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 481 (1991). IRCA made it unlawful “to hire, or to recruit or refer for a fee . . . an alien knowing the alien is an unauthorized alien.”
IRCA balanced harsher enforcement with a plan to legalize the status of millions who were living in the United States illegally. See
Despite IRCA‘s ambitious aims, it failed to curb illegal immigration. The work-verification and employer-sanction system did not eliminate the strong economic incentive for illegal immigration. E. Cohen, Illegal 157 (2020). Immigrants easily forged, stole, or shared documents, like photoless driver‘s licenses and Social Security cards, to provide “verification” of identity and employment authorization to their employers. Martin 266–267. And the law supplied little reason for employers to smoke out these fraudulent documents. On the contrary, “if an employer requested additional documentation, he or she faced penalties imposed to ensure that employers did not discriminate against foreign-looking or -sounding workers.” Id., at 267. Underenforcement of IRCA rendered its employer sanctions “nearly toothless.” Bon Tempo 306. IRCA‘s increased border enforcement did not help either. Although IRCA may have caused a short-term decrease in migration, the law “failed to discourage undocumented immigration in the long run.” Orrenius 448.
Congress has not passed comprehensive immigration legislation since 1986, in large part because voices across the
C
When Congress failed to solve the illegal-immigration problem, States stepped in. California led the way in 1994 with Proposition 187. That law stated “[e]very law enforcement agency in California shall fully cooperate with the United States . . . regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.” §4. Proposition 187 also excluded illegal immigrants from public social services, publicly funded healthcare services, and—most controversially—public education from elementary school through university. §§6–8. Although California voters overwhelmingly approved Proposition 187, the measure never went into effect. A Federal District Court enjoined the law, and then a new Governor settled the lawsuit. See League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (CD Cal. 1995); P. Gulasekaram & S. Karthick Ramakrishnan, The New Immigration Federalism 51–53 (2015).
As illegal immigration continued to climb, States tried to lessen its effects. For example, Arizona passed a law in 2007 that allowed courts to suspend or revoke business licenses for those who employed illegal immigrants. Chamber of Commerce of United States of America v. Whiting, 563 U. S. 582, 591 (2011). The Chamber of Commerce sued, arguing the law was preempted, but this Court disagreed. Id., at 587, 593.
The litigation between Arizona and the United States inaugurated an era in which the Federal Government and States resisted each other‘s efforts to address illegal immigration. Texas, in particular, repeatedly challenged federal immigration policies that the State alleged increased illegal immigration. But the State met with little success in this Court. The trouble began when Texas unsuccessfully challenged the 2021 termination of an earlier administration‘s border-enforcement policies. Biden v. Texas, 597 U. S. 785, 801–807 (2022). The State also lost in this Court when it tried to stop the Government‘s de-prioritization of immigration enforcement against some criminal aliens. United States v. Texas, 599 U. S. 670, 673–674 (2023). This Court thus greenlighted a policy that prohibited immigration officials from making enforcement decisions based solely on criminal convictions “no matter how serious.” Texas v. United States, 40 F. 4th 205, 214 (CA5 2022) (per curiam).
For its part, the Federal Government sued to stop Texas from implementing its own solutions to illegal immigration. When illegal entrants overran Texas border towns, the
Meanwhile, other States, counties, and cities encouraged illegal immigration by becoming sanctuary jurisdictions. These jurisdictions prohibit their law-enforcement officers from cooperating with federal immigration officials. M. Delgado, Sanctuary Cities, Communities, and Organizations 106 (2018) (Delgado). They often refuse to share information with federal immigration officers or to honor the Federal Government‘s requests to briefly extend the detention of those suspected of being in the country illegally. L. Collingwood & P. Gonzalez O‘Brien, Sanctuary Cities 6–7
D
Congress‘s failure to act, the Executive Branch‘s enforcement policies and frequent opposition to state solutions, and some jurisdictions’ policies have resulted in a massive increase in the number of illegal immigrants living in this country. According to leading demographers at Pew Research Center, the illegal-immigrant population grew by more than 2 million between 2022 and 2023, bringing the total number of illegal immigrants in this country to 14 million. J. Passel & J. Krogstad, Pew Research Center, U. S. Unauthorized Immigrant Population Reached a Record 14 Million in 2023, p. 4 (Aug. 21, 2025) (Passel). Demographers estimate that 9% of all births in the United States in
These numbers are striking, and after 2023 the trend appears to have intensified. Between July 2023 and March 2024, the overall foreign-born population of the United States increased from 48.5 million to 51.6 million—“an unprecedented increase of 3 million immigrants in nine months. Much of this growth was driven by the admission of unauthorized immigrants with temporary deportation protections.” Passel 20.
* * *
As a result of the events of the past 50 years, the United States now has a huge contingent of people who entered or remained in this country illegally, as well as a large group of people who were born here to such parents. The Court‘s interpretation of the Fourteenth Amendment makes all the members of this latter group citizens. Many of those who have grown up here now have a strong moral claim to be allowed to remain, but that is a matter that the Fourteenth Amendment, when properly interpreted, leaves to Congress.
V
As shown in Part II, supra, a person who is born in the United States is made a citizen by the Fourteenth Amendment only if that person was also “subject to the jurisdiction” of the United States. And that phrase means subject to the jurisdiction of the United States alone and not “subject to any foreign power.”
This is illustrated by the laws of countries on the list of those from which the greatest number of illegal immigrants come.14 Mexico is at the top of that list, and under Mexico‘s constitution, the child of a Mexican parent can become a Mexican national at birth and acquires certain duties to the government. See Political Constitution of the United Mexican States, Arts. 30, 31 (1917). Among these are the obligation to receive military training and to join the National Guard. Art. 31.
Guatemala is second on the list, and its constitution also confers Guatemalan nationality on a person born abroad to a Guatemalan parent. Political Constitution of the Republic of Guatemala, Art. 144 (1993). All Guatemalan nationals owe certain duties to the government. Art. 135. At the age of 18, a Guatemalan national automatically becomes a Guatemalan citizen, Art. 147, and thereby acquires additional obligations, Art. 136.
El Salvador is also among the top five, and its constitution provides that “[c]hildren of a Salvadoran father or mother, born in a foreign country,” are Salvadorans by birth. Constitution of El Salvador, Art. 90 (2014). Upon reaching the age of 18, these children incur an obligation to
Respondents’ claim in this case is that Executive Order No. 14160 is unconstitutional on its face. To prevail on this facial claim, they must show that “no set of circumstances exists under which the [Executive Order] would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987). And because the order is valid as applied to nationals from the countries discussed above, the claim should fail. In all likelihood, the Executive Order is also constitutional as applied to nationals from a great many other countries, but no such showing is needed here.
Indeed, showing merely that the Executive Order is valid as applied to a child born to a birth tourist would be enough to defeat respondents’ facial claim. That is why the Court goes out of its way to hold that even a child born to a mother who is here for only a brief time is a citizen under the Fourteenth Amendment. Ante, at 3–4, 19–20.
The Court‘s interpretation is not only contrary to the original meaning of the Fourteenth Amendment, it produces grotesque results. While foreigners who wish to immigrate lawfully must sometimes wait for many years, a child born here to a birth tourist is automatically a citizen.
The Court‘s interpretation also has national-security implications. Accord, ante, at 56 (THOMAS, J., dissenting). Suppose that a person‘s only connection to this country is that he was born here to a mother who was present just long enough to give birth and then quickly returned to her native country. Suppose that country is a strategic adversary or enemy of the United States. Suppose the child never visited the United States while growing up and was
The Court‘s interpretation saddles this country with an ancient British rule that even the United Kingdom has abandoned,15 as have other countries whose legal systems share the same pedigree.16
The Court‘s interpretation preserves a powerful incentive to enter or remain in this country illegally. Immigrants naturally prefer affluent countries where economic opportunities are available. Other than Canada, the United States will be the only affluent nation where birth alone is enough to establish citizenship.17
If the Fourteenth Amendment required these results, the country would have to live with them or amend the Constitution. But the Fourteenth Amendment does not include the rule the Court now imposes on the country. In my judgment, the Court has made a mistake that will seriously affect the country‘s future.
For that reason, I respectfully dissent.
At the heart of today‘s dispute lie two competing views of the Fourteenth Amendment‘s Citizenship Clause. On one account, the Clause incorporated the English common law rule of jus soli (literally, the “right of the soil“). That rule, developed in feudal times, had more to do with being a subject than a citizen. It was based on the notion that a “man owed personal service to the lord of the soil, the same as his master owed it to the king; and it was born with the child and only ended in the grave.” 2 Cong. Rec. 3282 (1874); see also 1 W. Blackstone, Commentaries on the Laws of England 369 (1768); ante, at 2–4 (majority opinion). On the other account, the Clause adopted a distinctly American settler‘s view of citizenship. One that promises the full “dignity and glory of American citizenship” to any child born in this country to parents who have made this Nation their permanent home, regardless of their race, religion, or national origin. Plessy v. Ferguson, 163 U. S. 537, 555 (1896) (Harlan, J., dissenting); see also ante, at 1–3 (THOMAS, J., dissenting). To my eye, the latter understanding better accords with the Clause‘s original public meaning and that leads me to join JUSTICE THOMAS‘s dissent.
I write only to emphasize a few points. First, the understanding JUSTICE THOMAS and I share of the Citizenship Clause is consistent with this Court‘s holding in United States v. Wong Kim Ark, 169 U. S. 649 (1898). That case involved parents born in China who had made their home in this country lawfully, even though they never became naturalized citizens and statutes then in effect made that impossible. See id., at 652, 701. The question the Court faced was whether the parents’ child, born in this country, was himself a citizen. The government argued that the child was not a citizen because his parents were not. Id., at 666. This Court—rightly—rejected the government‘s position. Throughout history, many other nations have restricted citizenship by birth to the children of citizens. See ante, at 13, n. 1 (THOMAS, J., dissenting). But the American settler‘s view of citizenship reflected in the Citizenship Clause is not so parsimonious. What matters isn‘t whether a child‘s parents are citizens. What matters is whether they (and, by law, their child at birth) have made this place their home and are thus “domiciled within the United States.” Wong Kim Ark, 169 U. S., at 693.
Second, respondents chose to pursue a facial challenge to the executive order at issue in this case and secured below a preliminary injunction barring every one of the order‘s potential applications. Under this Court‘s precedents, we can sustain that injunction only if “no set of circumstances exists” in which the order may be applied lawfully. United States v. Salerno, 481 U. S. 739, 745 (1987). That is a demanding standard, and it is not met here. Among other things, the executive order holds that children born to temporary visitors in this country, whether here lawfully or unlawfully, are not citizens. And at least to that extent, the order is consistent with the Citizenship Clause as JUSTICE THOMAS and I read it. By definition, temporary visitors to this country do not choose to make a permanent home here, and their children thus cannot claim the privilege of citizenship. Because the executive order is lawful at least to this extent, respondents’ facial challenge must fail. See ibid.; ante, at 56–57 (THOMAS, J., dissenting).
About that, however, I harbor doubts. Perhaps Wong Kim Ark does not squarely foreclose the government‘s position. After all, that case addressed a child born to parents who lawfully resided in this country. Still, I wonder: Is a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents’ presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this Court‘s longstanding recognition that every person is domiciled somewhere? See Desmare v. United States, 93 U. S. 605, 610 (1877). Because the executive order is not facially invalid, these questions may not be properly before us. But their answers are undeniably important to a Nation committed to a view of citizenship open to all children born here to parents who can call this country their home.
Notes
Judge Bork: “In a case like this, it is the task of the judge in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know. The world changes in which unchanging values find their application. The fourth amendment was framed by men who did not foresee electronic surveillance. But that does not make it wrong for judges to apply the central value of that amendment to electronic invasions of personal privacy. The commerce power was established by men who did not foresee the scope and intricate interdependence of today’s economic activities. But that does not make it wrong for judges to forbid states the power to impose burdensome regulations on the interstate movement of trailer trucks. . . . We must never hesitate to apply old values to new circumstances.” Id., at 995–996 (concurring opinion).
Judge Scalia: “I am not in need of [a] reminder that the fourth amendment must be applied to modern electronic surveillance, the commerce clause to trucks and the first amendment to broadcasting. The application of existing principles to new phenomena—either new because they have not existed before or new because they have never been presented to a court before—is what I would call not ‘evolution’ but merely routine elaboration of the law.” Id., at 1038, n. 2 (opinion dissenting in part) (citations omitted).
Note of Major Gen. Hurlbut (Feb. 5, 1865), microformed on Microcopy No. 53, Roll 16, Vol. 27–29, Mar. 19, 1865–Feb. 4, 1867, NAID: 188124588, p. 70 National Publications, https://catalog.archives.gov/id/188124588?objectPage=70 (archived at https://perma.cc/N47D-V2NP); see Letter from A. Atocha, Judge of the Provost Court, to Brig. Gen. Bowen (Nov. 12, 1863), microformed on NARA Record Group 94: Records of the Adj. Gen.‘s Office, Series: Letters Received, 1863–Atocha, A A–File No. G480, NAID: 85651033, pp. 3–5 (National Archives & Records Admin), https://catalog.archives.gov/id/85651033?objectPage=3 (archived at https://perma.cc/6VN3-9L4W); see I. Wurman, Jurisdiction and Citizenship, 49 Harv. J. L. Pub. Pol‘y 315, 370–372 (2026). On July 25, 1787, John Jay sent George Washington a letter suggesting that it would be “wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.” Letter from J. Jay to G. Washington (July 25, 1787), in 3 Records of the Federal Convention of 1787, at 61. Shortly thereafter, the phrase was added. In his Commentaries on the Constitution, Joseph Story explained that the purpose of the natural-born citizenship provision was to “cu[t] off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpos[e] a barrier against those corrupt interferences of foreign governments in executive elections.” 3 Commentaries on the Constitution of the United States § 1473, p. 333 (1833).There are myriad ways in which the Court’s adherence to color-blindness is mistaken, some of which I have addressed in other opinions. See SFFA, 600 U. S., at 385 (JACKSON, J., dissenting); see also, e.g., id., at 206, 208 (majority opinion) (conflating “[e]liminating racial discrimination” with eliminating all “[d]istinctions between citizens solely because of their ancestry” (internal quotation marks omitted)); Callais, 608 U. S., at ___ (slip op., at 17–18) (similar); Parents Involved, 551 U. S., at 747–748 (declaring that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” including by ceasing any race-conscious action designed to remediate the consequences of deeply entrenched housing segregation). My concern now is that a fleeting nature is among its many flaws. One wonders how the outcomes in the above cases might have differed had the Court, like the Government and the principal dissent today, relied upon the fact that the