SCOTUSblog by Samarth Desai 3/6/2026
The battle over birthright citizenship is a battle over its exceptions.
The 14th Amendment’s first sentence proudly proclaims that “[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” No one doubts that babies born on American soil are born “in the United States.” So the key question is what “subject to the jurisdiction thereof” means.
One oversimplified definition would be “being subject to U.S. law.” But this reading, the Trump administration parries, “cannot explain” well-established exceptions to birthright citizenship relating to (1) ambassadors, (2) foreign public ships, (3) occupying armies, and (4) Native Americans. Under certain circumstances, even these groups can be held accountable for breaking the law, the solicitor general points out in his brief to the Supreme Court. So birthright citizenship must turn on something more than being subject to U.S. law – or so the solicitor general assumes. (In his view, a child is a birthright citizen only if at least one parent’s domicile, or legal home base, is in America.)
Respectfully, the solicitor general is confused – confused about the exceptions, confused about “jurisdiction,” and confused about the Constitution itself.
With the right constitutional rule in view, the exceptions turn out to have a deep logic and coherence. As the ancient legal maxim goes, the exceptions provide – that is, confirm – the rule. (The modern, garbled version of the maxim – “the exceptions prove the rule” – is incoherent. Outliers don’t validate rules, but falsify them.)
Two originalist touchstones – the soil and the flag – cleanly explain both the scope and the limits of the Constitution’s grand birthright-citizenship guarantee. As the 14th Amendment’s framers and ratifiers repeated ad infinitum, all born (1) on American soil and (2) “under the flag” are birthright citizens.
Indeed, every exception tracks the “under the flag” principle. Certain enclaves, even though located on American soil, fell under different flags – most notably, foreign embassies, land occupied and administered by foreign armies, and quasi-sovereign Indian lands. In the original understanding, “under the flag” was synonymous with “subject to the jurisdiction thereof.” These enclaves thus lay outside constitutional birthright citizenship’s full guarantee.
The exceptions “illustrate and confirm the general doctrine,” as Justice Joseph Story put it in an 1830 Supreme Court opinion. In other words, the so-called “exceptions” are not exceptions at all, but applications.
The exceptions provide the rule
Consider how each exception tracks the “under-the-flag” principle (and, in modern procedural lingo, mirrors a sovereignty-based jurisdictional defense that could require a court to dismiss a case for lack of subject-matter jurisdiction).
First, diplomats and their families enjoy diplomatic immunity, as if they carry their home country’s flag overhead wherever they go. Indeed, America’s first major federal criminal statute conferred diplomatic immunity, codifying the customary international law fiction of extraterritoriality that treated diplomats as constructively under their homeland’s flag even on foreign soil. This immunity is robust. In 1982, for example, the son of the Brazilian ambassador shot a D.C. nightclub bouncer after shouting “I’m with the Mafia” and yet “escaped prosecution.” Today, the 1978 Diplomatic Relations Act implements the 1961 Vienna Convention on Diplomatic Relations and mandates dismissal of actions against diplomats and their household family members.
Second, public ships flying foreign flags enjoy foreign sovereign immunity. In a classic 1812 decision authored by Chief Justice John Marshall, the Supreme Court unanimously held a French warship “exempt” from “the ordinary jurisdiction of the judicial tribunals.” (Two Marylanders sought a legal declaration of ownership, claiming that Napoleon had stolen the vessel from them.) The Foreign Sovereign Immunities Act has since codified the customary international law on which Marshall relied.
More:
https://www.scotusblog.com/2026/03/birthright-citizenship-the-exceptions-provide-the-rule/
