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The Fourteenth Amendment to the United States Constitution, arguably the most important piece of law enacted anywhere in the world over the last two centuries, opens majestically with these words: \u201cAll 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.\u201d A crowning achievement of Reconstruction and a self-conscious repudiation of the Supreme Court\u2019s egregiously wrong ruling in Dred Scott<\/em> (holding that Black persons, whether free or enslaved, could not be citizens of America), this clause constitutionally guarantees citizenship for \u201call persons\u201d who are \u201cborn . . . in the United States\u201d and who are \u201csubject to [its] jurisdiction.\u201d We set out\u2014and repeat\u2014the core text of this quintessentially American provision, the so-called Citizenship Clause, because faithful attention to text is essential to interpreting, applying, and adhering to the Constitution. Recent events warrant a reminder of this basic interpretive principle.<\/p>\n On January 20, President Trump issued an executive order<\/a> that reads the Citizenship Clause in ways that confound, indeed defy, the rather uncomplicated and conventionally accepted\u2014and we think clearly correct\u2014understanding of the words of the Clause. Under the time-honored and straightforward interpretation, all persons who are born on U.S. soil (that is, within the United States and federal territories in the process of becoming states) and who are \u201csubject to\u201d \u201cjurisdiction\u201d of the United States (that is, are persons over whom the United States does assert the lawful power to govern but not persons, such as foreign dignitaries and some Indians, over whom the U.S. disclaims any such power) are automatically citizens. This does not mean that the United States may not confer citizenship on other<\/em> persons\u2014persons who were born outside the U.S. or persons over whom the United States does not assert regulatory power at the time and place of birth\u2014too<\/em>; it simply means that U.S. and state governments must<\/em> recognize citizenship of persons who meet the two-part (born in the U.S. and governed by the laws thereof) test laid out in the Citizenship Clause. Put differently, the government can, in recognizing citizenship, go beyond, but cannot operate beneath, the floor set by the Citizenship Clause itself.<\/p>\n The President\u2019s executive order, by contrast, would refuse citizenship for a child born in the U.S. and bound to obey U.S. law unless at least one of the child\u2019s parents was, at the time of the child\u2019s birth, a U.S. citizen or a U.S. permanent resident<\/em>. Thus, under the order, if a child is born on U.S. soil to parents neither of whom was a citizen or permanent resident, but instead who at the time of birth were in the United States unlawfully or only temporarily (under, for example, a tourist, student or work visa), that child is not guaranteed citizenship. This, according to the order, because the \u201csubject to the jurisdiction thereof\u201d provision of the Clause is best understood as requiring lawful and non-temporary presence by at least one of a child\u2019s parents at the time of birth. (In deeming children born to foreign mothers who at the time of birth are legally<\/em>\u2014albeit temporarily\u2014in the country not to be citizens at birth, the order goes even further than arguments heard in recent years, including from several Republican presidential candidates, that children born in the U.S. to unlawfully<\/em> present non-citizen mothers should not benefit from birthright citizenship.)<\/p>\n Not surprisingly, the executive order has already triggered a series of lawsuits by states and other plaintiffs to block enforcement. At least four district court judges have determined, in adjudicating applications for preliminary relief, that the plaintiffs are likely to prevail on the merits given the order\u2019s unconvincing treatment of the Citizenship Clause. For that reason, these courts have so far blocked implementation of the part of the order that directs federal agencies to, for example, withhold passports from U.S.-born children lacking a citizen or permanent-resident parent, with respect to children born in the U.S. thirty days after the issuance of the order. As one judge, in Seattle (a Ronald Reagan appointee), said<\/a>: \u201cI\u2019ve been on the bench for over four decades. I can\u2019t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.\u201d (That judge later issued<\/a> a nationwide preliminary injunction against the order; the U.S. Court of Appeals for the Ninth Circuit rejected<\/a> the administration\u2019s request for a stay.)<\/p>\n It is always possible that different lower courts will be more sympathetic to the administration\u2019s position, particularly at the early stages of litigation where likelihood of success on the merits is just one consideration in the preliminary injunction analysis. Sometimes, too, as a case proceeds in the judicial system, an argument that initially seems untenable can, for reasons that may or may not be grounded in principled law, gain strength. Nonetheless, the record so far does not favor the administration. And we are confident that when all is said and done, the administration\u2019s interpretation of the Citizenship Clause will be soundly rejected, including at the Supreme Court if the issue makes it that far.<\/p>\n Yet in the last few weeks, some prominent scholars and commentators writing in high-profile media outlets have taken the position that the executive order actually rests upon a sound\u2014or at least plausible\u2014interpretation of the Fourteenth Amendment. Writing in The New York Times<\/a>, legal scholars Randy Barnett and Ilan Wurman argue that the executive order is \u201cnot necessarily\u201d inconsistent with the Citizenship Clause. Focusing in particular on children born in the U.S. to unlawfully present parents, these authors (like those who crafted the President\u2019s order) contend there is support for the position that the Clause does not<\/em> guarantee citizenship under such circumstances because such children are not \u201csubject to the jurisdiction [of the United States].\u201d Barnett and Wurman assert that the phrase \u201csubject to the jurisdiction thereof\u201d does not focus on whether a person is bound by U.S. lawful authority at and after birth (that is, whether the federal government asserts legal authority over the child), but instead reflects a \u201csocial compact\u201d principle under which individuals pledge their allegiance to the nation (including by agreeing to obey by the nation\u2019s laws) in exchange for the nation\u2019s protection of their individual rights (the so-called \u201callegiance-for-protection\u201d notion). Barnett and Wurman contend that both \u201cthe 14th Amendment\u2019s original purpose and the common-law principle of \u2018jus soli,\u2019 or birthright citizenship, which informed the public meaning of the text . . . relate to the idea of social compact\u201d so as to limit the reach of the Citizenship Clause. In particular, as to \u201cchildren of people who are present in the United States illegally,\u201d Barnett and Wurman argue:<\/p>\n Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws? . . .[T]he parents are not enemies in the sense of an invading army, but they did not come in amity. They gave no obedience or allegiance to the country when they entered\u2014one cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws. Such persons can even be summarily removed from the country without judicial procedures of the sort that would protect citizens. If the allegiance-for-protection view informed the original meaning of the text, then they and their children are therefore not under the protection or \u201csubject to the jurisdiction\u201d of the nation in the relevant sense.<\/p>\n<\/blockquote>\n There are many huge and fatal flaws with this reading. Perhaps the most fundamental is that this reading does absolute violence to the words of the Clause, in at least two separate respects. First, the Citizenship Clause says nothing\u2014not a word\u2014at all about the parents<\/em> of a child born in the United States. Instead, the words of the Citizenship Clause speak directly to and about the persons<\/em> who are born<\/em>\u2014rather than to or about the parents<\/em> of the persons who are born (and in that way was radical in rejecting more traditional blood-based notions of citizenship)\u2014on U.S. soil. It is not the parents who must be subject to the jurisdiction of the United States at all. It is the child<\/em> who must be born in the U.S. and subject to its authority in order to claim a right of citizenship. The Citizenship Clause is explicitly about the place of birth rather than<\/em> (as was traditional in other societies) the parentage of birth. Indeed, the Clause\u2019s very words will sometimes operate to distinguish sharply parent from child: A mother unlawfully present may be removed from the country or otherwise punished even though her newborn enjoys the benefits of citizenship.<\/p>\n Second, the very words \u201csubject to\u201d in the Clause focus on the permissible exercise of power by an outside entity over someone, not actions taken by that person himself. The ordinary and enduring meaning of \u201csubject to\u201d is \u201caffected by,\u201d which trains attention not on the person who is affected but rather the outside entity or circumstance that may be causing an effect. This is not to say that in determining that someone is \u201csubject to\u201d something we never consider actions taken by that person. For example, a person is subject to personal jurisdiction of a state court only if she has purposefully availed herself of the benefits of the state in which the court sits. But to say that sometimes lawful exercise of power over someone turns on her actions is not to say that it always does. More importantly, the ultimate question posed by the use of the words \u201csubject to\u201d (standing alone) is not why<\/em> someone may be subject to something, but whether<\/em> she is. And when we ask whether<\/em> illegally present persons or their children are subject to the laws of the United States, the answer is obviously yes. Indeed, the unlawfully present parents themselves (even if we were wrongly to focus on them rather than the children mentioned in the Clause) are here unlawfully<\/em> only because the United States asserts regulatory power over them via our immigration laws. And while unlawfully present persons are here, they of course can be punished for violating any domestic laws they break. For example, Barnett and Wurman do not, and could not, say anything to suggest why a child born in a New York City hospital would not, absent some special claim to immunity, be subject to the power of New York and federal law. Indeed, do these authors think that children born in the U.S. to unlawfully present parents are exempt from punishment for violating domestic American law during their time here? Of course not. So in what sense are these children\u2014the very people the Clause speaks to\u2014not<\/em> \u201csubject to\u201d U.S. jurisdiction?<\/p>\n Barnett and Wurman\u2019s account might be at least worth considering if the Fourteenth Amendment read: \u201cAll persons born . . . in the United States to parents who by acts of allegiance have become<\/em> subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.\u201d But such a provision is vastly different from the one found in the Constitution, and no reliable method of interpretation can close the gap; the variant we offer here would not have been complicated to write, and yet we know of no draft of the Citizenship Clause that comes close to this kind of language that would shift focus from the child to the parent, or shift focus from the fact of a regulatory relationship by the government to the basis of such a relationship.<\/p>\n Indeed, given the specific words and syntax of the actual Citizenship Clause that was enacted (especially the specific and exclusive focus on the persons who are born), Barnett and Wurman\u2019s proffered approach verges on the surreal. Consider Barnett and Wurman\u2019s core idea of identifying which individuals have traded allegiance for protection\u2014and thus are subject to jurisdiction. We might sensibly ask that question of an adult. But what could it possibly mean to investigate whether a newborn has entered the social compact at the heart of Barnett and Wurman\u2019s account? We can\u2019t ask the child (and even if we could the question wouldn\u2019t make any sense). A focus on obedience to the law is similarly unrevealing. A baby born in the U.S. obviously has not entered the country unlawfully (indeed, except as the result of birth, hasn\u2019t entered the country at all) or broken any laws.<\/p>\n In support of their account of the Citizenship Clause, Barnett and Wurman invoke references that span three centuries (including Lord Coke\u2019s 1608 opinion in Calvin\u2019s Case<\/a>; Blackstone\u2019s commentaries (from the 1760s); an 1862 opinion<\/a> by Attorney General Edward Bates; and some dicta from the Supreme Court\u2019s 1898 decision in United States v. Wong Kim Ark<\/a>). But as venerable as these sources might be, Barnett and Wurman offer nothing to suggest that the Congress that proposed the Fourteenth Amendment, or the state conventions that ratified it, or the people of the United States who read it would view constitutional text that talks about whether a person is bound to obey U.S. law as really asking instead whether the parents of that person\u2014themselves nowhere mentioned in the Amendment\u2014have pledged allegiance to the U.S. In other words, Barnett and Wurman offer, at least so far, no evidence to suggest their proffered understanding of the Citizenship Clause was the or a natural one for the people who\u2014using words that would be very odd to employ had the parental-allegiance-for-child-protection idea been the animating one\u2014made the provision part of the Constitution.<\/p>\n (As to the provision of the executive order that says children born in the U.S. to lawfully<\/em> present non-citizens are also not U.S. citizens under the Fourteenth Amendment, Barnett and Wurman say that provision raises \u201ca more complicated question not addressed here.\u201d We\u2019ll wait for the answer, but one initial reaction we have, in addition to what we\u2019ve said above, is that it\u2019s hard to see why tourists and temporary workers\u2014but not people who have overstayed a visa\u2014can be deemed to have pledged allegiance to the nation in any sense relevant to the meaning of the Fourteenth Amendment.)<\/p>\n In other respects, Barnett and Wurman seek to lean on historical puzzles that simply don\u2019t exist. They write, for example, that the conventional view that \u201csubject to . . . jurisdiction\u201d means simply subject to the power of the government (including its courts) \u201ccannot explain the status of children born to foreigners on foreign public [warship] vessels in U.S., waters, who were not considered citizens.\u201d But as a succinct Harvard Law Review Note<\/a> explained a century ago (citing an opinion<\/a> of Chief Justice John Marshall) \u201c[o]ver foreign public [warship] vessels in its ports every nation is understood to waive the exercise of its territorial jurisdiction.\u201d So the conventional view fully explains what Barnett and Wurman wrongly see as an \u201canomaly.\u201d<\/p>\n The other \u201canomaly\u201d Barnett and Wurman offer involves the fact that \u201cchildren born to citizens residing within enemy-occupied territory [were apparently] considered citizens if their parents remained loyal.\u201d But this too, even if true, is not necessarily an anomaly: while we are no experts on the law of occupation, there is at least some possibility that non-invading persons in enemy-occupied territory remain bound to (and can be punished for violating) the domestic law of the invaded country. In that sense, the invaded country arguably does continue to \u201csubject\u201d persons in such occupied territories to its \u201cjurisdiction.\u201d Moreover, and more fundamentally, as noted near the outset, the conventional view does not foreclose the recognition of citizenship in circumstances where the two-part test is not<\/em> satisfied, and Barnett and Wurman adduce no evidence to support the notion that the \u201capparent\u201d treatment of children born in occupied territories as citizens was dictated by a common understanding that the Citizenship Clause so required. In other words, these folks could have been considered citizens regardless of what the Citizenship Clause mandates. For Barnett and Wurman to meaningfully challenge the conventional understandings, they would need to point to persons who do<\/em> satisfy the two-part test who were not<\/em> considered citizens. Their only attempt at that, with respect for persons born on foreign public vessels, fails for the reason discussed above.<\/p>\n\n