No, but history and 160 years of case law do.
I think I read somewhere that few other countries have birthright citizenship, although those born in such countries can end up stateless.
Around 30-35 other nations, mostly in the two American Continents. Somewhat more offer conditional Birthright Citizenship, like with the parents being residents- I think mostly in Europe, but i could be wrong.
Thirty-two other countries around the world, most of them in the Western Hemisphere, have birthright citizenship laws that are substantially similar to the U.S., according to a Pew Research Center analysis. Another 50 or so countries have more limited variations of birthright citizenship.
Birthright Citizenship With Conditions
What countries have birthright citizenship but with attached conditions? The following 40 countries offer conditional birthright citizenship.
I see being subject to something’s jurisdiction and being within something’s jurisdiction as two ways to describe the exact same relationship. However, I do not think being within something’s jurisdiction is the same as being within its territory.
~Max
I can’t wait to hear the spin from “you no longer have to take your shoes off at the checkpoint” to “piss in this cup while this masked white nationalist watches”.
But they’re not. Think about sex tourism laws or township police crossing township borders in hot pursuit for examples. In both cases you are not within the jurisdiction but you are subject to the jurisdiction.
There are multiple ways to acquire jurisdiction over someone. I would say in both cases you are within the offended locality’s jurisdiction.
A country enforcing sex tourism laws exercises jurisdiction over the offender’s person, regardless of his or her presence in its territory. Jurisdiction is just legal power and the offender is within the country’s legal power. It doesn’t matter if the country is exercising its power over its territory or over your person, both qualify as “within its jurisdiction”.
A township whose law enforcement officers are in “hot pursuit” technically extends its territory, temporarily, to encompass the pursuit of that one person. This is a legal fiction, similar to foreign embassies being foreign soil. There is no real territory changing hands here, but we pretend as if there were. (Or there might be a mutual aid agreement, in which case the officer technically exercises the other locality’s jurisdiction to get the fugitive.)
~Max
Interesting. I slightly disagree. Maybe we are both right, though. Let me know what you agree/disagree with.
I think the confusion is switching whether we are talking about the “sphere” of where jurisdiction is or is not - the physical location. Or whether we are talking about a person/class of persons. Are those people subject to a particular government’s jurisdiction - I definitely see a difference, but by what you’re saying, you do not. Right? “Within”, to me, means a space/sphere/location. “Subject to”, to me, means is the jurisdiction applicable to a person/persons/status of the person.
With that, let’s do some hypos:
Location is NY. Inside the physical territory of the US. Within it’s jurisdiction. Me, an American citizen also in NY is within it’s jurisdiction, because I’m standing within the sphere, and I’m also subject to it, because it applies to me. A foreign diplomat, standing in NY, is within the jurisdiction. The diplomat is not subject to that sphere of jurisdiction because the diplomat is protected by his shield of immunity. US jurisdiction bounces off and can’t penetrate that person’s immunity.
Location is Ramstein Air Base in Germany. Inside physical territory of Germany. From the US perspective, on the base though, we are within US jurisdiction. A German and US marine walk into a bar…the German is within US jurisdiction but not subject to it. US Military law doesn’t apply to German citizens. The US Marine is within US jurisdiction and subject to it. His status as a marine makes US jurisdiction apply. Once they both leave the base, they are within German jurisdiction, both are subject to it; the marine would also still be subject to US jurisdiction.
Apache Tribe in the 1870s. Inside physical territory of the Apache. Within the jurisdiction of the Apache. The apache, inside his tribal lands, is also not subject to US jurisdiction. Once he steps foot outside his tribal lands, the apache is now within the sphere of US jurisdiction, but, at least recognized under the 14th Amendment, he is not subject to US jurisdiction / his child born in NY would not be an American citizen. His status as Apache prevented it even though he is within US jurisdiction. So, within/subject to can’t mean the same thing although the Apache is definitely subject to US jurisdiction in all other ways. It took an act of Congress to change this.
Foreign Immigrant today El Paso, Texas. Inside physical territory of US. Standing within sphere of US jurisdiction. The foreign and/or undocumented immigrant is also subject to US jurisdiction. The recent SC decision says his status as foreign/undocumented doesn’t mean he is not subject to US jurisdiction under the 14th.
Pick it apart please. I don’t know that this is correct. I definitely had to shed details to keep it reasonably short.
I think the term you were looking for is concurrence.
I think this hits the nail on the head. I don’t know why this seems confusing or ambiguous. If the U.S. has the authority to arrest and prosecute you (to somewhat simplify), you’re subject to its jurisdiction.
If they don’t, you’re not.
What else does subject to its jurisdiction even mean, if not subject to arrest and prosecution?
Yeah, I don’t know that we need to put much of a finer point on it.
“What does subject to the state’s jurisdiction mean?”
“It means you’ll follow our rules or we’ll make you sorry you didn’t.”
You’re thinking solely of being subject to a countries criminal laws. Being subject to a jurisdiction is broader than just criminal law. You’re being subject to the entire sovereign’s/Gov’t apparatus. It might not make a difference in your outcome, but just FYI.
I think it’s more subtle than that though under the 14th. The 14th wants to know why or how you’re subject to it. Or at least it did before a few days ago. You couldn’t just determine who was subject to the 14th based on whether the person could be arrested/prosecuted or not (that would leave purely immune persons as a 14th exception but the exceptions are broader than just that…they are kinda ad hoc).
It does? Where does it say that?
That’s pretty much the debate. It doesn’t say it in the text of the 14th Amendment. We need to leave the text and find out who/how it applies to. Here are cases/sources the majority opinion used in the recent SC case where those cases/sources talks about subject to a jurisdiction having to do with your allegiance, etc (and not just whether the Gov’t can arrest/prosecute you).
A System of the Laws of the State of Connecticut (1795): “children of aliens” are citizens, for they owe a “duty” at birth to the “government, under whose protection [they] came into existence”.
Commentaries on American Law (1827): “all persons born within the jurisdiction and allegiance of the United states” are citizens.
Schooner Exchange (1868): 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"…Every sovereign would hazard his own dignity,” after all, if his officials abroad were made to “owe temporary and local allegiance to a foreign prince.”
Elk (1884): Ultimately held that Natives were an exception to the “subject to” phrase of the 14th b/c they were not allegiant enough to the US, even if their children were born in America.
Here’s some discussion from the case:
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance…Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.
Wong Kim Ark (1898): Held that even though we recognize the special status of Indian tribes as not being subject to US jurisdiction, children born to foreign parents are subject to enough so they satisfy the requirement.
Here’s some discussion about what subject to means in Wong Kim Ark:
The fundamental principle of the common law with regard to English nationality was birth within the allegiance—also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’—of the king. The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual…and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.
Trump v. Barbara (2026):
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…Those children are thus subject to the jurisdiction of the United States.
The above are illustrative examples of how allegiance was a part of the discussion of whether a person was subject to American jurisdiction as required under the 14th. It reads like being “subject to” is a matter of degree, not just yes/no. That’s how it was discussed for a long time.
Prior to recent case, it was probably unsettled law. I don’t know the recent opinion well enough yet, but I don’t think it matters to the subject to requirement anymore.
Prior to the recent case, the tribal exception presented the problem. Clearly, in any reasonable sense, they were subject to American jurisdiction outside their tribal lands. But the 14th arguments that held over time, due to their status/allegiance, that they were not subject to American jurisdiction (enough) under the 14th.
I don’t understand how babies are supposed to demonstrate allegience.
Right. It’s a good point.
However, I think it’s complicated. Words like allegiance in the 1700s probably doesn’t mean exactly as how I’d use allegiance today in 2026. In olden times, it was a binary relationship with King/subject. The King was the sovereign of a place and persons, in return for that protection of the King, the person had a duty to be allegiant to the King. In that way, being born in the King’s realm, you were immediately allegiant to the King. It was more a duty/requirement imposed on you at birth, than a decision you contemplated and came to yourself (e.g., Am I allegiant to the King of France or England? hmmmm). Birthright citizenship decided that for you.
It could also fluctuate/matter in degrees. Like permanent allegiance, or temporary, or enough allegiance here than there (the Wong Kim Ark case), etc. Then you play the telephone game for hundreds of years, possibly missing nuance over time, and all the meanings morph and change. Trying to implement that kind of test today, as the dissent would like, is a bit ridiculous.
It’s really interesting. But dense and confusing. I’m pretty far off my comfort level here and welcome any pushback and correction.
Not to be an inflexible textualist, but I don’t see how “subject to US jurisdiction” has anything to do with allegiance. I can declare my devotion to Freedonia, but I’ll still be arrested if I commit a felony.
Seriously, whatever navel-gazing debate has occurred since the 14th was ratified, it says what it says. Very annoying how Textualism is key, except when it isn’t.
And of course, the same people who claim to be textualists often also claim to be originalists, without any attention paid to the inconsistencies between the two.
Yes. Alito is the worst. Text, originalism, and “history and tradition” are always paramount—except when they’re not.