In the fourteenth amendment, what does the phrase “and subject to the jurisdiction thereof” contribute? What people born in the United States would not have been subject to the jurisdiction of the United States?


Same question restated: would the formulation below have a different legal meaning?

All persons born or naturalized in the United States are citizens of the United States and the State wherein they reside.

(Purely theoretical legal question; no relation to current events.)


In the case of United States vs Wong Kim Ark 169 U.S. 649 (1898) (a 6-2 decision), the Supreme Court wrote:

[T]he real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.


[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, 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.



In short the phrase “and subject to the jurisdiction thereof” excludes three and only three groups of people:

  • Children born to foreign diplomats here on diplomatic business, who have diplomatic immunity to US Law;

  • Children of members of an invading army that has occupied and controlled some part of US territory, born on that occupied area, who are obviously not subject to US Law (which has rarely happened in the US, although Guam was occupied during WWII, and parts of Alaska, and small parts of Maine during the War of 1812); and

  • Members of Native American tribes, subject to the jurisdiction of their tribal governments, who do not pay US taxes. (This was true when the 14th amendment was passed, but it no longer is. See section below on the act that changed it in 1924.)

Any other person born in the proper US or in incorporated US territory is a citizen, no matter who his or her parents are or were. (The case is less clear for unincorporated US territory.)

See also the Wikipedia article on the case

This view was confirmed in 1995 in an opinion from the Justice Department’s Office of Legal Counsel written by then-Assistant Attorney General Walter Dellinger, taking the position that this rule could not be changed by legislation, only by Constitutional Amendment, writing:

My office grapples with many difficult and close issues of constitutional law. The lawfulness of this bill is not among them. This legislation is unquestionably unconstitutional. The Fourteenth Amendment declares that “[a]ll persons bom 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.” U.S. Const, amend. XIV, § 1. The unmistakable purpose of this provision was to constitutionalize the existing Anglo-American common law rule of jus soli or citizenship by place of birth and especially to extend it to persons of African descent and their descendants.

In Plyler v. Doe, 457 U.S. 202 (1982) the Supreme Court of the United States struck down both a state statute denying funding for education to children in the United States illegally and a municipal school district's attempt to charge an annual $1,000 tuition fee for each student. The case upheld the same principle that the constitutional phrase "within the jurisdiction" applies to the children of people who had entered the US illegally.

According to the Wikipedia article on the case:

Texas officials had argued that illegal aliens were not "within the jurisdiction" of the state and thus could not claim protections under the Fourteenth Amendment. The court majority rejected this claim, finding instead that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful." The dissenting opinion also rejected this claim, agreeing with the Court that "the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state."

Thus the question of whether such aliens were "within the jurisdiction" of the US was very much at issue in Plyler v. Doe

EDIT: Since the Indian Citizenship Act of 1924 was passed, all Native Americans born within the US have been citizens by birth, and the third class of exceptions noted in the earlier cases non longer exists. Prior to this act Native Americans were in many ways treated as foreigners by the US. They were not citizens by birth, and their tribes had some but not all of the attributes of independent nations.

The text of the law is:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.

(End edit on Indian Citizenship Act of 1924)

Edit: On reading through the decision of the case of Wong Kim Ark I find one more small exclusion: persons born on board a foreign naval ship, even though present in US waters in time of peace, are not citizens of the US because of their birth location. This is apparently not a usual case, but is premised on the ground that a military vessel remains the territory of the nation it belongs to. Such persons might of course be citizens by inheritance if one or both parents are US citizens, and the statutory conditions are complied with.
(End edit on naval ships)

I just learned that some parts of the State of Main were occupied by the British during the war of 1812. I do not know if anyone was born during that occupation whose citizenship might have been affected.

  • 3
    Plyler v. Doe only mentioned citizenship in a footnote. The citizenship of US-born children was not (as far as I can tell without yet having read the entire opinion) at issue in the case, only the education of children present in the US without lawful status. Saying that the case "upheld the principle of birthright citizenship" is therefore overstating the matter. – phoog Oct 31 '18 at 15:36
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    @DavidK diplomats are not subject to the jurisdiction because of diplomatic immunity; the immunity from US laws is the reason why diplomats are not subject to US jurisdiction, not the other way around. The causal chain here is (1) diplomatic immunity exists because of longstanding international custom and the Vienna Convention on Diplomatic Relations; (2) diplomats are not "subject to the jurisdiction" of the US; (3) the constitution therefore excludes their US-born children from acquisition of citizenship because of their birth on US soil. – phoog Oct 31 '18 at 20:54
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    @DavidK I think it's more "reductio ad absurdum": nobody seriously thinks that illegal immigrants should or ever could be immune from US jurisdiction, but their being outside the scope of the 14th implies that they would be. Therefore, they are within its scope, because holding otherwise leads to an absurd result. – phoog Nov 1 '18 at 3:06
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    @ChrisW members of Native American tribes were indeed not US citizens when the 14th amendment was passed. They were made citizens in 1924, though, so they are no longer an exception to the "subject to the jurisdiction" rule. AIUI, before 1924, a Native American committing a crime on a reservation was subject only to the criminal jurisdiction of the tribe. It's more complicated than that, of course, but that's the quick-and-dirty explanation. – phoog Nov 1 '18 at 13:01
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    the answer really needs to be updated to note that the status of native americans has changed since those rulings. we do pay taxes and we are citizens. there are only two classes excluded from the 14th amendment now. – worc Nov 1 '18 at 17:32

Can you break a law? Can you be held to account for that law you broke? If yes, then you're subject to the jurisdiction of those laws.

Foreign invaders are not subject to our laws.

Diplomats with Diplomatic Immunity are not subject to our laws.

Indians on Indian land are not subject to our laws.

As such you are 'subject to the jurisdiction thereof' if you can be tried and convicted for breaking a law in that place.

  • 5
    That's not 100% true. Indian sovereign authority is recognized by Federal law but is nonetheless subject to an overriding federal authority. law.cornell.edu/wex/american_indian_law – A.fm. Nov 1 '18 at 3:14
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    @A.fm. and Indians born in US territory are nowadays all US citizens. When the amendment was passed, however, the situation was rather different. – phoog Nov 1 '18 at 5:28
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    I'd suggest "Native Americans" rather than "Indians". Not so much for political correctness as for preciseness; it's not hard to imagine a non-American reader seeing "Indians" and thinking "someone from India". – Nat Nov 1 '18 at 13:09
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    A non-US reader could also easily see "Native American" and mentally include, say, the Incas. "American Indians" is less ambiguous. – cHao Nov 1 '18 at 16:38
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    Indigenous, or to reference the plurality of the Indigenous people you could say Indigenous group,. may be a better term, its the accepted term in Canada at least. (for the First Nations, Inuit and Metis). But broadly speaking in the United States I do not think there is a widely accepted term. – Stephen DiMarco Nov 1 '18 at 19:17

According to current US law: 31 CFR 515.329 and CFR 515.330

Relative to diplomats I'll offer my own opinion: Specifically, if a foreign diplomat can be expelled by the US government, that is an utilization of jurisdiction by the US government.

  • 2
    The OP said this was a "purely hypothetical legal question", so I'd like to leave a purely hypothetical legal note here: the president has the authority to change anything in the CFR. This does not mean, however, that the courts will allow the new definition to control the meaning of the constitution. – Brian Nov 4 '18 at 3:47
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    @Brian it's also worth noting that the cited section of the CFR is part of the "Cuban Assets Control Regulations" and the definition there does not apply elsewhere. Furthermore, a diplomat's immunity means that this section of the CFR does not apply to diplomats, no matter what these definitions say. – phoog Nov 8 '18 at 17:18
  • Whether you can be ejected from a country is separate from whether you are under their jurisdiction, as being under jurisdiction means that you can be held to account for breaking US laws under our judicial system, which diplomats cannot. – Greg Schmit Feb 22 at 22:33

protected by feetwet Nov 1 '18 at 9:26


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