The 14th Amendment is one of the most litigated parts of the Constitution. In the current climate though, no part of the Amendment is as much discussed as Section I, which contains the clause, “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Does anyone ask themself, why did they add the phrase “and subject to the jurisdiction thereof,” instead of simply saying, “All persons born or naturalized in the United States.” The second part of the clause was deliberately inserted into the 14th Amendment (approved 1866, ratified 1868) precisely because Congress did not want to grant automatic birthright citizenship to every person physically born on U.S. soil. Without that qualifying language, the clause would have been over-inclusive. The historical record from the 1866 congressional debates makes the intended exclusions clear.
The United States v. Wong Kim Ark (1898) decision marked a pivotal interpretation of the Fourteenth Amendment’s Citizenship Clause. Ratified primarily to secure citizenship for freed slaves and overturn the Dred Scott decision, the clause’s application to children of non-citizen immigrants remained untested at the Supreme Court level, until the case of Wong Kim Ark, a U.S.-born son of Chinese immigrants ineligible for naturalization under exclusionary laws.
In a 6-2 ruling, the Court held that Wong was a citizen by birth, affirming the common-law principle of jus soli(citizenship by place of birth) and interpreting “subject to the jurisdiction thereof” to mean full legal obedience to U.S. laws, with narrow exceptions for children of foreign diplomats or invading armies. This clarified that birth on U.S. soil generally conferred citizenship regardless of parental nationality or allegiance, extending the clause beyond its original post-Civil War context to a broader, territorial basis.
While the decision did not fundamentally “change” the amendment’s text or original intent—rooted in ensuring citizenship for formerly enslaved people and their descendants—it solidified and arguably expanded its practical scope by establishing precedent for birthright citizenship for children of immigrants, including those from racially excluded groups. Critics, including the dissenting justices, argued this went too far, potentially granting citizenship to children of permanent aliens whose parents owed primary allegiance elsewhere, and some modern scholars contend it misapplied common law or overreached beyond the framers’ focus on slavery’s legacy.
Nonetheless, Wong Kim Ark has endured as binding authority, shaping U.S. citizenship policy for over a century and influencing debates on immigration and constitutional interpretation. I expect that the US Supreme Court will overturn the Wong Kim Ark decision to the intent of Howard and Trumbull.
Whether Wong Kim Ark “incorrectly” expanded the clause depends on interpretive lens: originalists emphasizing Howard and Trumbull’s allegiance-focused remarks often argue yes, it overreached by applying pure territorial birthright to children of non-citizens. In contrast, those prioritizing the clause’s plain text, common-law roots, and the rejection of racial/ethnic exclusions in debate see the decision as faithful to the framers’ egalitarian intent post-Civil War. The Court in Wong Kim Ark sided with the latter, holding “subject to the jurisdiction” meant full legal subjection (with narrow exceptions), not mutual allegiance excluding immigrants’ children. This remains the binding precedent, though debates persist.