SCOTUSblog by Pete Patterson 3/24/2026
The 14th Amendment does not codify English principles of subjectship: A brief reply to the Amar brothersProfessors Akhil and Vikram Amar have responded to my recent post arguing that the 14th Amendment does not grant automatic citizenship to the children of temporary visitors to the United States. As a practicing attorney, I am accustomed to having the opportunity to file a reply brief, and I thank the editors of SCOTUSblog for allowing me to briefly respond to the Amars’ arguments.
First, the Amars engage in an extended, multi-paragraph critique of my discussion of the 14th Amendment citizenship clause’s provision for state citizenship. But nowhere in that extended critique do they appear to contest my basic argument. The citizenship clause provides that birthright citizens of the United States also are citizens “of the State wherein they reside.” That means that when a child is born in and subject to the jurisdiction of the United States, that child automatically is a citizen both of the United States and of the state (if any) where the child resides (i.e., is domiciled). And because the residence of a minor child is that of the child’s parents or guardians, the child’s state of residence (and, therefore, state of citizenship) at birth will be that of the parents, even if the parents are visiting a different state at the time. Thus, if a couple resident in New York has a child while visiting Florida, under the citizenship clause that child at birth will be a citizen of New York. It would be incongruous for the national citizenship provision of the citizenship clause to make a child born to a married couple resident in (old) York, England, during a temporary visit to Florida an automatic birthright citizen of the United States.
In response to this basic point, the Amars make irrelevant arguments about matters such as the ability of state citizenship to shift over a person’s lifetime (for example, when a child’s parents die and the child’s new guardian is a resident of different state) and whether a person can be a birthright citizen of the United States without also being a citizen of a state (for example, when a person resides in the District of Columbia).
Second, the Amars quote officials Edward Bates, William Seward, and Salmon Chase stating generally that free children born in the United States were citizens regardless of the nationality of their parents. But these statements were made years before either the Civil Rights Act of 1866 or the 14th Amendment were adopted. And all agree that there are some exceptions to this general rule (e.g., the children of ambassadors); the question is whether “subject to the jurisdiction thereof” in the citizenship clause includes the children of temporary visitors. These statements do not answer that question. Indeed, if they were taken categorically, they would make “subject to the jurisdiction” in the citizenship clause superfluous, as the clause independently requires individuals to be born “in” the United States to be automatic birthright citizens.
More:
https://www.scotusblog.com/2026/03/the-14th-amendment-does-not-codify-english-principles-of-subjectship-a-brief-reply-to-the-amar-brothers/
