Political Philosophy

Citizenship and the American Regime: How the Revolution Replaced Subjectship with Republican Citizenship

October 28, 2026

John Eastman

Senior Fellow

Provocations #11

Click here to view a PDF version. The Provocations series is available in hard copy, audiobook, and e-book formats on Amazon.

Summary: The controversy over birthright citizenship has generally been framed as a dispute over the meaning of a single sentence in the Fourteenth Amendment. Does the Citizenship Clause constitutionalize the English common-law rule that virtually every person born within the sovereign’s dominions is a citizen? Or does it merely codify the narrower understanding reflected in the Civil Rights Act of 1866, under which citizenship required not only birth within the United States but complete political jurisdiction—that is, allegiance to the United States rather than to another sovereign? In this Provocation, John Eastman traces how one people, dissolving their political bonds, transformed the very nature of political membership and how that understanding has been fundamentally undermined over the last century.

Foreword

Parliament’s theory of the rights of the colonists was clear—no matter the cost, no matter the condition, all who were born under the King’s domain were perpetual subjects of the British crown, owing allegiance to their king. But once Independence was declared—that it was “necessary for one people to dissolve the political bands”—one by one, the colonists formed their new governments, making clear their rights: All allegiance and fealty to the king and his successors was dissolved and had come to an end, and all power and authority derived from him had ceased.* 250 years later, the rights of republican citizenship have once again been undermined by the tyrannical impulse of subjectship.

The Center for the American Way of Life has published our Provocations to engage the highest levels of the Legislative, Executive, and now Judicial branches of government on ways we can reclaim and save the American way of life. As Americans continue celebrating our country’s great achievements, we continue this special series of Provocations by turning our concerns to the Supreme Court of the United States, and providing the institution with a reminder of our country’s theoretical foundations, how those commitments have been undermined, and to set the targets that will shape the next 250 years of our country and beyond.

We are excited to continue our series with the scholarship of Dr. John Eastman. Dr. Eastman has spent decades researching, arguing, and defending the rights of republican citizenship, warning that such rights, if dissolved, would destroy the foundation of our constitutional republic. He, along with Claremont Scholars—Tom West, Ed Erler, and Michael Anton—have articulated the founder’s understanding of republican citizenship, and promulgated its defense against the modern arguments for birthright citizenship.

We hope this provocation will continue the legacy of guiding those in the highest ranks of our government, and we hope this edition will inspire a new generation of Americans to remember that we are not subjects of a tyrannical government, but citizens of a constitutional republic.

Annalyssa Rogers

Acting Executive Director

Center for the American Way of Life

*See the Pennsylvania Constitution of 1776, preamble.

“… to dissolve the political bands which have connected them with another…”

—Declaration of Independence

Introduction

The controversy over birthright citizenship has generally been framed as a dispute over the meaning of a single sentence in the Fourteenth Amendment. Does the Citizenship Clause constitutionalize the English common-law rule that virtually every person born within the sovereign’s dominions is a citizen? Or does it merely codify the narrower understanding reflected in the Civil Rights Act of 1866,[1] under which citizenship required not only birth within the United States but complete political jurisdiction—that is, allegiance to the United States rather than to another sovereign?

Important as that question is, it is not the most fundamental one. Before asking what the Fourteenth Amendment means, we must first ask what kind of political community the Constitution presupposes. Every constitution rests upon an antecedent understanding of who constitutes “the people” for whom it speaks. The Constitution of the United States was no exception. Its provisions governing representation, naturalization, eligibility for federal office, and republican government all assume the existence of a political community capable of determining its own membership. The Citizenship Clause did not create that community—it presupposed it.

That point is easily overlooked because modern constitutional discourse increasingly treats citizenship as an individual entitlement rather than as membership in a self-governing political community. Contemporary debate therefore begins with the rights of the individual claimant. The Founding began with a different question: Who are the people possessing the authority to establish government in the first place? The answer to that question necessarily precedes any inquiry into who may later become members of the political community they have established.

The Declaration of Independence announced two propositions that have shaped American constitutionalism ever since. The first is among the most celebrated sentences in political history: that all men are created equal and endowed by their Creator with certain unalienable rights. The second is quoted far less often but is no less important: that one people may “dissolve the political bands” connecting them with another and assume “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”[2]

These propositions are complementary rather than contradictory. Human equality explains why governments derive “their just powers from the consent of the governed.”[3] The right of one people to dissolve political bonds explains who possesses authority to give that consent in the first place. Equality establishes the moral basis of legitimate government; political community identifies the body capable of constituting that government.

Modern constitutional theory has tended to celebrate the first proposition while neglecting the second. Equality increasingly is understood to require ever broader inclusion within the existing political community, while the authority of that community to define its own membership is treated with growing suspicion. Citizenship becomes less an expression of national sovereignty than a consequence of individual presence. The controversy over birthright citizenship reflects that transformation. It is not merely a disagreement over the meaning of a constitutional clause. It is a disagreement over whether the American regime continues to rest upon the principles announced in 1776 or has gradually adopted a fundamentally different understanding of political membership.

That larger question explains why the debate has proven so persistent. If citizenship is simply a legal status automatically conferred by the accident of birth, then the Fourteenth Amendment may indeed have constitutionalized a broad rule of territorial birthright citizenship largely beyond the control of the political branches. But if citizenship instead expresses membership in a sovereign people—a people possessing the authority to constitute itself and perpetuate itself through law—then the Citizenship Clause must be read against that preexisting constitutional tradition rather than in isolation from it.

The distinction is not merely theoretical. It reflects two fundamentally different conceptions of constitutional government. The first understands the nation as a political community whose members collectively determine the conditions under which new members are admitted. The second understands citizenship principally as an individual entitlement, one that arises independently of the continuing consent of the political community itself. Those competing understandings produce different readings of the Fourteenth Amendment because they begin from different understandings of the American regime.

The question, then, is not merely what Congress intended in 1866 or what the Supreme Court later concluded in Wong Kim Ark.[4] It is whether the American Revolution permanently replaced the English law of subjectship with a republican conception of citizenship rooted in consent, allegiance, and national self-government. If the Revolution transformed the very nature of political membership, then every subsequent constitutional development—including the Fourteenth Amendment—must be understood against that larger constitutional inheritance.

The place to begin, therefore, is not Reconstruction but the Revolution itself. The Constitution did not spring into existence in 1787 with a fully formed theory of citizenship. It inherited one from the Declaration of Independence. To understand the Citizenship Clause, we must first recover what Americans believed they had accomplished when they declared themselves no longer subjects of the British Crown but members of a free and independent political community.

I. The Revolution Against Subjectship

The American Revolution was not simply a war for independence. It was a revolution in political theory. Before 1776, the American colonists were subjects of the British Crown, bound by the English common-law doctrine of perpetual allegiance. That doctrine held that political membership arose principally from birth within the King’s dominions and could not be dissolved by the unilateral act of the subject. Allegiance was reciprocal: the sovereign owed protection, and the subject owed obedience. But because the obligation arose from birth rather than consent, it endured for life. As Blackstone explained, “natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth.” It was “a debt of gratitude which cannot be forfeited, canceled, or altered by any change of time, place, or circumstance.”[5]

That understanding reflected the feudal origins of the English constitution. The subject belonged to the Crown because he was born within the dominions of the King, his liege lord. Birth fixed political status just as surely as inheritance fixed property rights or social rank. Although English constitutionalism evolved considerably over the centuries, the common law never abandoned the proposition that birth within the sovereign’s territory established a permanent political relationship.

Modern defenders of universal birthright citizenship, including the Chief Justice of the United States in the recent case of Trump v. Barbara,[6] often begin their historical analysis here. They observe, correctly, that the common-law rule of jus soli was well established in eighteenth-century England and that American lawyers inherited much of the English common-law tradition. From this they infer that the Fourteenth Amendment simply constitutionalized an existing rule under which birth within the territory ordinarily determined political membership.

The inference, however, overlooks the most revolutionary event in American constitutional history.

The Declaration of Independence did not merely announce that the colonies had become independent states. It justified that independence by rejecting the political theory on which perpetual allegiance rested. Americans did not claim simply that George III had governed badly. They asserted that legitimate government derives “their just powers from the consent of the governed” and that whenever government becomes destructive of the ends for which it is instituted, “it is the Right of the People to alter or to abolish it, and to institute new Government.”

That proposition cannot be reconciled with the English doctrine of perpetual allegiance. And lest anyone miss the point, the closing lines of the Declaration made the rejection of perpetual allegiance unmistakable, declaring, “That these United Colonies are, and of Right ought to be Free and Independent States; [and] that they are Absolved from all Allegiance to the British Crown.”

If governments derive their just powers from consent, political obligation cannot rest exclusively upon the accident of birth. If a people possesses the authority to dissolve the political bonds connecting it with another people, then allegiance is no longer an immutable status imposed by geography. It is instead an incident of political membership in a community constituted through consent.

The Declaration therefore announced two propositions that modern constitutional discourse too often separates. The first is the universal equality of all human beings. The second is the equal right of one people to constitute itself as an independent political community. The first establishes the moral equality of persons. The second establishes the political equality of nations.

Neither proposition can be understood without the other.

The Declaration’s famous assertion that “all men are created equal” explains why no ruler possesses a natural right to govern another. But the Declaration immediately asks the next question: if no one is born with a natural right to rule, who possesses legitimate political authority? Its answer is equally revolutionary. Authority belongs to “one people” acting through their own consent.

The emphasis upon “one people” was no rhetorical flourish. It identified the collective body capable of establishing government in the first place. The Declaration does not proclaim the independence of isolated individuals. It proclaims the independence of a political community acting together. Equality and consent of the governed are therefore complementary principles. Human beings are equal by nature; governments arise when a people freely constitutes itself as a political community.

This distinction profoundly influenced the constitutional order that followed.

The Constitution opens not with individual rights but with collective authorship: “We the People of the United States.” That phrase presupposes the existence of a political community before any governmental powers are delegated. The Constitution creates institutions through which that community governs itself, but it does not purport to create the community itself. The sovereign people are logically antecedent to the government they establish.

That understanding also explains why the Constitution originally contained no comprehensive definition of citizenship. The Framers assumed that citizenship referred to membership in an already existing political community whose identity was understood rather than invented. They found no need to constitutionalize a detailed definition because the Constitution presupposed the existence of the very people from whom its authority derived.

Seen in this light, the Revolution accomplished something far more significant than national independence. It transformed the source of political obligation. English law asked whether one had been born under the King’s protection. American constitutionalism asked whether one belonged to the sovereign people whose consent established government. Birth remained relevant, of course, but only because it ordinarily reflected membership in an existing political community rather than because geography itself created an irrevocable political status.

That distinction would become increasingly important during the first century of the Republic. The new nation repeatedly confronted questions that English law had largely avoided. Could citizens renounce their allegiance and expatriate themselves? Did immigration automatically produce political membership? Could Congress establish uniform rules governing naturalization if birth alone invariably determined allegiance? These questions forced Americans to develop a distinctly republican understanding of citizenship—one rooted less in feudal subjectship than in political membership.

By the time Congress assembled in 1866 to draft the Civil Rights Act and the Fourteenth Amendment, those debates had already been unfolding for nearly ninety years. Reconstruction did not invent an American theory of citizenship. It inherited one. The task before the Thirty-Ninth Congress was not to replace the Founders’ understanding of political membership, but to secure it against the constitutional error of Dred Scott[7] and the legal oppression embodied in the Black Codes.

II. A Republic Chooses Its Citizens

If the Declaration transformed the basis of political obligation, the Constitution assumed rather than repudiated that transformation. It did not attempt to define the American people. It spoke for them.

That seemingly simple observation has profound implications for the modern debate over citizenship. The Constitution repeatedly refers to “the People of the United States,” yet nowhere before the Fourteenth Amendment does it undertake a comprehensive definition of who those people are. The omission has often been treated as a gap in the constitutional design. In reality, it reflects one of the Constitution’s deepest assumptions.

The Framers did not believe they were creating a people. They believed they were acting on behalf of one.

The Constitution opens not with a grant of rights but with an act of political authorship: “We the People of the United States…do ordain and establish this Constitution.” The sovereign people are therefore logically prior to the government they create. Governments derive their authority from the people; the people do not derive their existence from the government.

That relationship distinguishes republican constitutionalism from monarchy just as surely as the Declaration had distinguished consent from subjectship. Under the English constitution, allegiance ultimately ran to the Crown, and political identity flowed downward from the sovereign. Under the American Constitution, sovereignty resided in the people themselves. Government was their creation, not their creator.

This point is easily obscured because modern constitutional law often speaks of citizenship as though it were principally a legal status conferred by governmental institutions. The Founders understood the relationship in the opposite direction. Citizenship reflected membership in the sovereign political community from which governmental authority itself proceeded.

The Constitution’s treatment of naturalization illustrates the point. Article I empowers Congress “To establish an uniform Rule of Naturalization.”[8] That grant presupposes two propositions. First, the American people possess authority to admit new members into their political community. Second, Congress exercises that authority only because the Constitution delegates it on behalf of the sovereign people.

The Naturalization Clause therefore does not merely confer legislative power. It embodies a principle of republican self-government. Every independent nation possesses authority to determine the conditions under which aliens may become members of the political community. The Constitution assigns that authority to Congress to prevent the states from pursuing conflicting policies, but the underlying power derives from national sovereignty itself.

The Qualifications Clauses reinforce the same understanding. Representatives, Senators, and Presidents must be citizens for specified periods before assuming office. These provisions would make little sense if citizenship were merely an accidental consequence of geography. They presuppose that citizenship denotes membership in the political community whose sovereign authority federal officers are chosen to exercise.

The Constitution likewise guarantees to every state a “Republican Form of Government.” That guarantee concerns institutional structure, but it also rests upon an assumption about political membership. Republics govern through citizens acting together as a political community. They do not exist independently of the people who constitute them.

None of these provisions attempt to define citizenship comprehensively. They have no need to do so. The Constitution assumes what the Declaration had already proclaimed: that a free people possesses the authority to establish government for itself and, by implication, to determine the conditions under which others may join that political community.

Early American constitutional practice confirms this understanding.

From the beginning of the Republic, states regulated voting, office holding, militia service, jury service, and numerous other incidents of political membership according to citizenship. Congress enacted increasingly detailed naturalization laws specifying residence, character, oaths of allegiance, and the renunciation of prior sovereign obligations. None of these enactments treated citizenship as an automatic consequence of physical presence. Instead, they reflected the understanding that admission to the political community involved allegiance to the United States and acceptance into its constitutional order.

Equally revealing were the nation’s recurring disputes over expatriation. English common law maintained that natural allegiance could never be renounced. Americans increasingly rejected that proposition. If governments rested upon consent rather than hereditary obligation, it followed that allegiance itself could not be literally perpetual. The right of expatriation therefore became one of the earliest and most persistent manifestations of the Revolution’s rejection of English subjectship.

The significance of these debates has often been underestimated. They demonstrate that Americans spent the Republic’s first century adapting inherited legal doctrines to revolutionary political principles. English law remained an important source of legal reasoning, but it no longer supplied the nation’s constitutional philosophy. Wherever inherited doctrines proved inconsistent with the premises of the Declaration, Americans gradually reshaped them to conform to the new understanding of republican government.

Citizenship was no exception.

By the eve of the Civil War, the Nation had developed a distinctly American understanding of political membership. It was not fully articulated in any single constitutional provision, nor had every question been resolved. But several principles had become firmly established. The United States was a sovereign nation. Sovereignty resided ultimately in the people rather than in any monarch. Congress possessed authority to establish uniform rules governing admission into the political community. Allegiance reflected political membership rather than merely territorial birth. And citizenship carried with it both rights and reciprocal obligations arising from membership in a self-governing republic.

The constitutional crisis precipitated by Dred Scott v. Sandford[9] did not expose the absence of an American theory of citizenship. It exposed the consequences of departing from one.

Chief Justice Roger Taney’s opinion denied that an entire class of persons born within the United States could ever become members of the American political community because, in his view, the Founding generation had permanently excluded them from “the people” who ordained and established the Constitution. That account of the Founding was historically mistaken. As the dissenters argued, free blacks participated as citizens in several states at the Founding and were among the “people” who established the new constitutional order. Thomas West’s careful scholarship has demonstrated just how deeply Taney misunderstood the Founders’ conception of citizenship and political equality.[10] The Civil Rights Act of 1866 and the Fourteenth Amendment were drafted to repudiate Taney’s erroneous conclusion. But they did so within an existing constitutional tradition. Their purpose was to restore the Constitution’s republican understanding of citizenship—not to replace it with a fundamentally different conception of political membership.

Accordingly, the debates of 1866 did not begin with a blank slate. They began with nearly a century of constitutional development grounded in the Revolution’s rejection of perpetual subjectship and its embrace of government by the consent of a self-governing people.

The Thirty-Ninth Congress did not understand itself to be founding a new regime. It understood itself to be rescuing the old one. The Civil Rights Act and the Fourteenth Amendment were revolutionary in their consequences, but conservative in their constitutional purpose. They sought to secure for the newly freed slaves the citizenship that Taney had wrongly denied them, not to redefine the principles upon which American citizenship itself had always rested.

III. Reconstruction Restored the Founding

The Civil War transformed the Constitution, but it did not transform the principles upon which the Constitution rested. Reconstruction completed the work of the Founding by extending to the newly freed slaves the equal protection of the laws and the full rights of American citizenship. It did not repudiate the Founders’ understanding of republican self-government; it sought to vindicate it against both slavery and Dred Scott.[11]

That distinction is essential to understanding the Citizenship Clause.

Modern discussions often begin with the text of the Fourteenth Amendment itself, asking whether the phrase “subject to the jurisdiction thereof” incorporated the English common-law rule of jus soli or adopted some narrower conception of allegiance. The debates of 1866 are then treated as though Congress were writing on a blank slate.

It was not.

The Thirty-Ninth Congress confronted a specific constitutional crisis. Dred Scott v. Sandford[12] had declared that persons of African descent, even if born in the United States and recognized as citizens by their own states, could never become citizens of the United States because they were not among the “people” who established the Constitution. The Black Codes enacted throughout the former Confederacy then sought to deny the newly emancipated slaves the ordinary civil rights that should accompany freedom.

Congress responded first through the Civil Rights Act of 1866. The opening sentence of that Act deserves careful attention:

All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.[13]

Like every legislature, the Thirty-Ninth Congress legislated against the background of the controversy before it. The constitutional question presented by Dred Scott was whether an entire class of persons born in and owing allegiance to the United States—former slaves and their descendants—could nevertheless be denied membership in the American political community. The Civil Rights Act answered that question decisively. It was not designed to resolve every hypothetical circumstance in which citizenship might later be claimed. Rather, it constitutionalized a principle necessary to overturn Dred Scott while preserving the longstanding understanding that citizenship presupposed complete political allegiance to the United States.

The language of the Act therefore did two things simultaneously. It repudiated Dred Scott by making clear that birth in the United States could indeed produce national citizenship. At the same time, it rejected the notion that mere territorial birth was sufficient in every case. Congress expressly limited citizenship to those “not subject to any foreign power.” That limitation reflected a familiar principle of public law. Citizenship presupposed complete political allegiance to the United States rather than continued political allegiance to another sovereign.

Nothing in the congressional debates suggests that legislators regarded this limitation as novel. And nothing in the debates over the 14th Amendment, which immediately followed, did either.

To the contrary, Senator Lyman Trumbull repeatedly explained that the “subject to the jurisdiction” language of the 14th Amendment meant “not owing allegiance to anybody else,”[14] just as the “not subject to any foreign power” language of the 1866 Civil Rights Act did. The point was not to invent a new qualification for citizenship but to restate an old one in language reflecting the American understanding of political allegiance rather than the English doctrine of perpetual subjectship.

The same understanding appears throughout the debates.

Opponents of the bill repeatedly objected that its language would extend citizenship to groups whom Congress plainly did not intend to include, particularly members of sovereign Indian tribes and the children of foreign diplomats. Supporters answered that these persons were not fully subject to the political jurisdiction of the United States because they owed allegiance elsewhere.

Notice what is missing from the debate. No one argued that birth alone invariably determined citizenship. No one claimed that Congress was constitutionalizing the English common-law doctrine described by Blackstone. No one suggested that the Revolution’s rejection of perpetual allegiance had somehow been abandoned. The controversy instead concerned the scope of political jurisdiction—that is, who belonged to the American political community.

When Congress turned a few months later to the Fourteenth Amendment, the same constitutional problem remained before it.

Many Republicans feared that an ordinary statute might later be repealed or invalidated. They therefore sought to constitutionalize the central principle of the Civil Rights Act by placing the rule of citizenship beyond the reach of future Congresses or hostile courts.

That objective explains one of the most significant textual changes between the Civil Rights Act and the Fourteenth Amendment. The Act had spoken of persons “not subject to any foreign power.” The Amendment instead referred to persons “subject to the jurisdiction” of the United States. Read in isolation, those phrases are not identical. In context, however, they perform the same constitutional function; both distinguish complete political jurisdiction from mere territorial presence.

Indeed, Senator Jacob Howard, who introduced the Citizenship Clause in the Senate, expressly described the language as excluding those who owed primary allegiance to foreign governments, including the children of diplomats and members of sovereign Indian tribes, but also “aliens” merely sojourning in this country.[15] His explanation presupposed the same distinction between territorial authority and political allegiance that had animated the Civil Rights Act itself.

That continuity should not surprise us. The Thirty-Ninth Congress did not believe it was writing the first chapter of American citizenship. It believed it was correcting one of the gravest constitutional errors in the Nation’s history.

The point bears emphasis because modern discussions often assume that Reconstruction fundamentally altered the meaning of citizenship. Yet nothing in the debates suggests that Congress believed it was abandoning the Founders’ conception of a self-governing people in favor of a universal rule of territorial birth inherited from English common law.

To the contrary, Reconstruction reaffirmed the revolutionary principle that American citizenship expresses membership in a sovereign political community rather than perpetual subjection to territorial authority. The newly freed slaves were entitled to citizenship not because Congress had embraced English subjectship, but because Dred Scott had wrongly denied that they were capable of belonging to the American people whose Constitution already recognized them as equal human beings entitled to the protection of republican government.

In that respect, the Citizenship Clause was both revolutionary and conservative. Revolutionary because it forever overturned Dred Scott and secured national citizenship for millions of newly emancipated Americans. Conservative because it sought to preserve—not replace—the constitutional tradition inherited from the Declaration and the Founding.

IV. Wong Kim Ark and the Eclipse of Republican Citizenship

For more than thirty years after the ratification of the Fourteenth Amendment, no one suggested that it had fundamentally transformed the American understanding of political membership. The Amendment unquestionably overturned Dred Scott. It unquestionably guaranteed national citizenship to the newly freed slaves. But it did not immediately generate the modern claim that every person born on American soil, regardless of the allegiance owed by his parents, thereby became a constitutional citizen.

That claim emerged only at the end of the nineteenth century, in United States v. Wong Kim Ark.[16]

The facts of the case are well known. Wong Kim Ark was born in San Francisco to Chinese parents who were legally domiciled in the United States but remained subjects of the Emperor of China and were ineligible under federal law to become American citizens. After a trip abroad, he was denied reentry on the ground that he was not a citizen. The Supreme Court held, by a vote of six to two, that the Citizenship Clause made him a citizen by birth.

The decision has long been treated as the definitive exposition of the Fourteenth Amendment’s meaning. Yet a careful reading reveals something more complicated.

Justice Horace Gray devoted the overwhelming majority of his opinion not to the debates of the Thirty-Ninth Congress or to the constitutional problem posed by Dred Scott, but to an exhaustive survey of English common law stretching from Calvin’s Case through Coke, Blackstone, and numerous English precedents. The opinion reads almost as a treatise on English subjectship.[17]

That choice of authorities was revealing.

The question before the Court was the meaning of an American constitutional provision adopted nearly a century after the Declaration of Independence. Yet the Court’s analysis repeatedly treated the English common-law doctrine of jus soli as the baseline from which the Fourteenth Amendment should be understood to depart only if Congress had unmistakably indicated otherwise.

The opinion thus approached the Constitution in opposition to the direction taken by the Founders themselves.

The Revolution had asked whether inherited English doctrines remained consistent with a republic founded upon the consent of a self-governing people. Justice Gray instead asked whether the Fourteenth Amendment had clearly displaced inherited English rules governing subjectship. The difference was subtle but profound. One begins with the American regime and asks what portions of the common law survived the Revolution. The other begins with the common law and assumes its continued operation unless expressly repealed.

Those are not the same method of constitutional interpretation.

Nor did Justice Gray seriously confront the distinction between subjectship and citizenship that had animated the Revolution itself. Throughout the opinion, English authorities concerning the reciprocal obligations of sovereign and subject are treated as though they naturally resolved questions concerning membership in an American republic whose legitimacy rested upon consent rather than hereditary allegiance.

The result was to blur a distinction the Founders regarded as fundamental.

None of this is to deny that Wong Kim Ark resolved the specific controversy before the Court.

Wong Kim Ark himself occupied a distinctive position. He was born to parents who had been lawfully and permanently domiciled in the United States for many years. They conducted their lives here, lived under American law, and were subject in nearly every practical sense to the authority of the United States, even though federal law denied them the possibility of naturalization.

Reasonable jurists could therefore conclude that such persons had developed the kind of permanent political attachment that the Citizenship Clause presupposed.

The Court could have reached that conclusion without embracing the broader proposition that the Fourteenth Amendment constitutionalized an absolute rule of territorial birth applicable regardless of parental allegiance, lawful presence, or temporary status.

Yet the opinion repeatedly spoke in broader terms than the facts required. In doing so, it laid the groundwork for later generations to treat isolated passages describing English jus soli as though they constituted a comprehensive constitutional theory of American citizenship.

That development illustrates an enduring characteristic of constitutional law. Broad language often acquires greater significance than the concrete dispute from which it arose. What began as a decision concerning the American-born son of permanently domiciled Chinese parents gradually came to be cited for propositions extending far beyond the circumstances presented to the Court.

Indeed, modern defenders of universal birthright citizenship frequently rely less upon the actual holding of Wong Kim Ark than upon its broad historical discussion of English common law. The opinion’s lengthy treatment of Blackstone and Calvin’s Case has become, in effect, a substitute for independent examination of the American constitutional tradition.

That reliance is especially striking because the Court paid comparatively little attention to the central question that had occupied the Thirty-Ninth Congress only thirty years earlier: what did “subject to the jurisdiction” mean in the constitutional context of overturning Dred Scott and securing citizenship for the freedmen?

The opinion never seriously asks whether the Revolution altered the constitutional significance of English subjectship. It largely assumes that it did not.

That assumption—not merely the Court’s ultimate holding—marked the beginning of a different way of thinking about citizenship.

The importance of Wong Kim Ark therefore lies not only in what it held but in the constitutional method it employed. The opinion subtly shifted the inquiry away from the Declaration’s conception of a self-governing people and back toward the English common-law doctrines the Revolution had displaced. Over time, that methodological shift proved at least as influential as the judgment itself.

That shift coincided with another transformation already reshaping American constitutional thought. During the Progressive Era, citizenship increasingly came to be understood less as membership in a self-governing political community than as the legal status of individuals administered by a modern national state. The language of allegiance gradually yielded to the language of rights, while the Constitution came to be viewed less as the charter of a sovereign people than as the instrument of an ever-expanding administrative government. In that intellectual environment, Wong Kim Ark came to be read not as a decision resolving a particular controversy, but as announcing a new universal principle detached from the constitutional regime that had produced it.

V. Trump v. Barbara and the Return  of First Principles

The Supreme Court’s decision in Trump v. Barbara[18] has already assumed a place alongside Wong Kim Ark as one of the defining cases on the Citizenship Clause. Yet the opinions reveal something more fundamental than disagreement over the historical meaning of a single constitutional provision. They reflect competing understandings of the American constitutional order itself.

The majority viewed the question principally through the lens of precedent. The Citizenship Clause, as interpreted through dicta in Wong Kim Ark and subsequent decisions, was understood to have established a constitutional rule under which birth within the territorial United States ordinarily confers citizenship. The Court therefore treated the controversy as largely one of doctrinal continuity, asking whether the executive branch possessed authority to depart from a constitutional settlement long accepted by the judiciary (even if that settlement was rooted in dicta and not in any prior holding).

Viewed in isolation, that approach has an obvious appeal. Stability and continuity are indispensable virtues in constitutional adjudication. But those virtues cannot substitute for constitutional meaning. Every generation inherits not only judicial precedents but the Constitution itself. When serious questions arise concerning the historical premises upon which precedent rests, fidelity to the Constitution requires that those premises be examined rather than assumed.

The central difficulty with the majority’s analysis is therefore not merely its reading of the Citizenship Clause. It is the constitutional narrative with which it begins. Like Justice Gray’s opinion in Wong Kim Ark, the majority largely assumes that the Fourteenth Amendment incorporated the English common-law rule of territorial birth unless Congress unmistakably provided otherwise. The inquiry therefore begins with inherited doctrines of subjectship and asks whether the constitutional text displaced them.

This essay has suggested the opposite approach. The Revolution fundamentally altered the source of political obligation by replacing hereditary subjectship with republican citizenship grounded in the consent of a self-governing people. The Constitution presupposed that transformation. Reconstruction preserved it while repudiating Dred Scott. Read against that constitutional history, the Citizenship Clause does not constitutionalize English subjectship. It secures membership in the American political community according to the principles of the American regime.

The disagreement, then, is not simply over historical evidence. It is over the proper starting point for constitutional interpretation.

Justice Clarence Thomas’s dissent represents a welcome return to that starting point. Rather than treating modern assumptions as settled constitutional premises, he asks the antecedent historical question: What did the Constitution, and later the Fourteenth Amendment, actually mean when adopted? His opinion examines the legal understanding of allegiance, jurisdiction, sovereignty, and citizenship inherited by the Thirty-Ninth Congress rather than assuming that subsequent doctrine accurately captured that understanding.[19]

Whether every aspect of Justice Thomas’s historical analysis ultimately proves persuasive to other members of the Court is, in one sense, beside the point. His larger contribution is methodological. Constitutional interpretation proceeds from original meaning, not from accumulated assumptions about original meaning. That insistence upon returning to first principles is itself a reaffirmation of originalism properly understood.

Justice Samuel Alito’s dissent[20] complements Justice Thomas’s historical inquiry by exposing several analytical weaknesses in the majority’s reasoning. Again and again, he identifies propositions that require historical demonstration but are instead treated as historical givens. The majority effectively equates being subject to American law with being “subject to the jurisdiction” of the United States without first establishing that the Thirty-Ninth Congress understood those concepts to be identical. It similarly relies upon expansive language in Wong Kim Ark without asking whether those statements were necessary to the Court’s holding or instead reflected broader historical observations. And it frequently invokes constitutional history at a level of generality that obscures the concrete constitutional problem Reconstruction was addressing: the repudiation of Dred Scott and the recognition of citizenship for the newly freed slaves.

These methodological concerns reinforce the central argument developed throughout this essay. Constitutional interpretation requires more than assembling historical quotations. It requires understanding the constitutional problem to which a provision was addressed and the political principles that gave rise to its adoption. Detached from that larger constitutional narrative, isolated statements from legislative debates or judicial opinions are easily misunderstood.

Justice Brett Kavanaugh’s separate opinion[21] points in a different but equally significant direction. Rather than treating every disputed question concerning birthright citizenship as conclusively resolved by the Constitution itself, he emphasized the continuing role of Congress in legislating within the constitutional framework. His analysis focused less on the ultimate historical meaning of the Citizenship Clause than on the institutional allocation of authority under our constitutional system.

That observation deserves more attention than it has received.

For many Americans, constitutional controversy now ends once the Supreme Court announces its decision. Judicial interpretation becomes constitutional meaning, leaving little room for the political branches to exercise independent constitutional judgment. “We are under a Constitution, but the Constitution is what the judges say it is,” as then Governor and future Supreme Court Chief Justice Charles Evans Hughes famously said at the dawn of the Progressive movement in 1907.[22] Hughes was describing a practical reality of twentieth-century constitutional government. Over time, however, that practical observation came to be mistaken for a constitutional principle. That understanding, however, was not aligned with the constitutional self-government that emerged from the American Revolution.

No one explained this more clearly than Abraham Lincoln.

Lincoln fully accepted the binding force of judicial judgments upon the parties before the Court. He did not advocate executive defiance of judicial decrees, nor did he deny the Supreme Court’s indispensable role within our constitutional structure. But he firmly rejected the proposition that a single judicial opinion irrevocably fixed constitutional meaning for the entire Nation.

“If the policy of the Government upon vital questions affecting the whole people,” Lincoln warned in his First Inaugural Address, “is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers.”[23]

Lincoln’s observation was not a criticism of judicial review. It was a defense of constitutional self-government.

The Constitution assigns interpretive responsibilities to all three branches. Members of Congress swear the same oath to support the Constitution as do judges. Presidents take that oath as well—or, more precisely, an even stronger version of it. Each branch must therefore exercise independent constitutional judgment within the sphere of authority entrusted to it, always respecting the judgments of the others while never surrendering its own constitutional responsibilities.

That principle has particular force where the historical record remains genuinely contested. Over the past several decades, a substantial body of scholarship—including my own work[24]—has reexamined assumptions that were long treated as settled. Thomas West’s work has demonstrated the depth of Taney’s historical errors concerning the Founding generation and the citizenship of free blacks.[25] Edward Erler has recovered the intimate connection between citizenship and consent of the governed in the American constitutional tradition.[26] Kurt Lash’s archival work has enriched our understanding of the drafting and ratification of the Fourteenth Amendment,[27] while Richard Epstein has questioned modern assumptions about the Citizenship Clause from the perspective of constitutional structure and sovereignty.[28] Michael Anton,[29]  Ilan Wurman,[30] Amy Swearer,[31] and others[32] have likewise shown that the original meaning of the Citizenship Clause remains a serious subject of constitutional inquiry rather than a question foreclosed by historical consensus.[33] Whether every one of their conclusions ultimately prevails is less important than the undeniable fact that the constitutional questions remain serious, substantial, and worthy of continued debate.

That is precisely how constitutional self-government is supposed to function.

The Declaration of Independence did not proclaim merely the equality of individual persons. It proclaimed the equal right of one people to constitute itself as an independent political community. The Constitution was ordained and established by that people. The Fourteenth Amendment secured citizenship for those whom Dred Scott had wrongly excluded from that political community. None of those constitutional landmarks suggests that the American people permanently surrendered the authority to deliberate about the principles governing their own political membership whenever historical controversy should arise.

If this essay is correct, then the birthright citizenship debate is not fundamentally about immigration policy, nor even about the proper interpretation of a single constitutional clause. It concerns something more fundamental: whether the American people still possess authority to deliberate about the character of their own political community.

That was the question posed by the Declaration of Independence. It was the question assumed by the Constitution. It was the question Reconstruction answered in repudiating Dred Scott while preserving the Founders’ conception of republican citizenship. It is the question that ultimately divides the opinions in Trump v. Barbara, and despite the Court’s ruling, it remains the question that continues to confront the Nation today.

If citizenship is merely the automatic consequence of territorial birth inherited from English subjectship, then the American people possess remarkably little authority over the composition of their own political community. Membership becomes largely an accident of geography rather than an act of constitutional self-government.

But if the Revolution truly replaced subjectship with republican citizenship—if political membership ultimately rests upon the consent of a sovereign people acting through their constitutional institutions—then the debate is not over. It has only resumed.

A republic devoted to constitutional self-government does not cease to inquire into the principles of its own political existence merely because courts have spoken. It continues the conversation—with seriousness, with historical fidelity, and with confidence that the Constitution belongs not to judges alone, but to the sovereign people in whose name it was ordained.

Conclusion

The American Revolution did more than establish a new nation. It established a new understanding of political membership. The United States rejected the hereditary subjectship of the English constitution and embraced instead the republican principle that governments derive “their just powers from the consent of the governed.”[34] That transformation necessarily altered the meaning of citizenship itself.

The Fourteenth Amendment completed, rather than repudiated, that constitutional tradition. It secured to the newly freed slaves the citizenship that Dred Scott had wrongly denied them, but it did so within the framework of a Constitution that already presupposed a sovereign people capable of determining the membership of its own political community.

Whether the Supreme Court has faithfully understood that inheritance is a question that historians, lawyers, legislators, judges, and citizens will continue to debate. They should. A republic that abandons debate over the principles of its own constitutional order has already begun to abandon self-government itself.

The Declaration did not merely announce American independence. It proclaimed the right of one people to assume “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”[35] The Constitution was ordained by that people. The Fourteenth Amendment preserved that people’s Constitution. The enduring question is whether we still understand ourselves to be that people.

[1] Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (1866), https://docsteach.org/document/civil-rights-act-1866/.

[2] Declaration of Independence, para. 1 (1776), https://www.archives.gov/founding-docs/declaration-transcript.

[3] Declaration of Independence, para. 2 (1776), https://www.archives.gov/founding-docs/declaration-transcript.

[4] Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (1866), https://docsteach.org/document/civil-rights-act-1866/; United States v. Wong Kim Ark, 169 U.S. 649 (1898), https://www.loc.gov/item/usrep169649/.

[5] William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765), 1:357–58.

[6] Trump v. Barbara, 146 S. Ct. 2438 (2026), https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf.

[7] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), https://www.loc.gov/item/usrep060393a/; Black Codes of 1865-1866, reprinted in Documentary History of Reconstruction, ed. Walter L. Fleming (Cleveland: Arthur H. Clark Co., 1906), 1:273–311.

[8] U.S. Const. art. I, § 8, cl. 4, https://constitution.congress.gov/browse/article-1/section-8/clause-4/.

[9] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), https://www.loc.gov/item/usrep060393a/.

[10] Thomas G. West, Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Lanham, MD: Rowman & Littlefield, 1997), 26–27.

[11] U.S. Const. amends. XIII, XIV, XV, https://www.archives.gov/founding-docs/constitution-transcript; Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), https://www.loc.gov/item/usrep060393a/.

[12] Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404–6 (1857), https://www.loc.gov/item/usrep060393a/.

[13] Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27 (1866), https://docsteach.org/document/civil-rights-act-1866/.

[14] Congressional Globe, 39th Cong., 1st sess., 2893 (1866) (statement of Sen. Lyman Trumbull), https://digital.library.unt.edu/ark:/67531/metadc30867/.

[15] Congressional Globe, 39th Cong., 1st sess., 2890, 2893 (1866) (statement of Sen. Jacob Howard), https://digital.library.unt.edu/ark:/67531/metadc30867/.

[16] United States v. Wong Kim Ark, 169 U.S. 649 (1898), https://www.loc.gov/item/usrep169649/.

[17] United States v. Wong Kim Ark, 169 U.S. 649, 655–61, 675–93 (1898), https://www.loc.gov/item/usrep169649/; Calvin’s Case, 77 Eng. Rep. 377 (K.B. 1608), https://constitution.org/2-Authors/coke/Calvins_Case-7_Coke_Report_1a_77_ER_377.html.

[18] Trump v. Barbara, 609 U.S. ___, 146 S. Ct. 2438 (2026), https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf.

[19] Trump v. Barbara, 146 S. Ct. 2438, 2474 (2026) (Thomas, J., dissenting), https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf.

[20] Trump v. Barbara, 146 S. Ct. 2438, 2524 (2026) (Alito, J., dissenting), https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf.

[21] Trump v. Barbara, 146 S. Ct. 2438, 2469 (2026) (Kavanaugh, J., concurring), https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf.

[22] Charles Evans Hughes, “Speech before the Elmira Chamber of Commerce,” May 3, 1907, in Addresses of Charles Evans Hughes, 1906-1916, 2nd ed. (New York: G. P. Putnam’s Sons, 1916), 139, https://archive.org/download/addressesofcharl00hughuoft/addressesofcharl00hughuoft.pdf.

[23] Abraham Lincoln, “First Inaugural Address,” March 4, 1861, in The Collected Works of Abraham Lincoln, ed. Roy P. Basler, vol. 4 (New Brunswick, NJ: Rutgers University Press, 1953), 268, https://www.presidency.ucsb.edu/documents/inaugural-address-34.

[24] See, e.g., John C. Eastman, “From Feudalism to Consent: Rethinking Birthright Citizenship,” Heritage Foundation Legal Memorandum no. 18 (March 30, 2006), https://www.heritage.org/the-constitution/report/feudalism-consent-rethinking-birthright-citizenship; John C. Eastman, “Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11,” University of Richmond Law Review 42 (2008): 955, https://scholarship.richmond.edu/lawreview/vol42/iss4/5/; John C. Eastman, “The Significance of ‘Domicile’ in Wong Kim Ark,” Chapman Law Review 22 (2019): 301, https://digitalcommons.chapman.edu/chapman-law-review/vol22/iss2/10/.

[25] Thomas G. West, Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Lanham, MD: Rowman & Littlefield, 1997), 26–27.

[26] Edward J. Erler, The United States in Crisis: Citizenship, Immigration, and the Nation State (New York: Encounter Books, 2022), 27–31.

[27] Kurt T. Lash, The Fourteenth Amendment and the Privileges or Immunities of American Citizens: In Search of the Original Meaning (Indianapolis: Liberty Fund, 2021); Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law (Cambridge, MA: Harvard University Press, 2011); Kurt T. Lash, “Prima Facie Citizenship: Birth, Allegiance, and the Fourteenth Amendment’s Citizenship Clause,” Notre Dame Law Review 101 (2026): 101, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5140319.

[28] Richard A. Epstein, The Myth of Birthright Citizenship: What the Fourteenth Amendment Really Says (New York: Encounter Books, 2026).

[29] Michael Anton, “Citizenship Shouldn’t Be a Birthright,” Washington Post, July 18, 2018, https://www.washingtonpost.com/opinions/citizenship-shouldnt-be-a-birthright/2018/07/18/7d0e2998-8912-11e8-85ae-511bc1146b0b_story.html; Michael Anton, “Birthright Citizenship: A Response to My Critics,” Claremont Review of Books, July 22, 2018, https://claremontreviewofbooks.com/digital/birthright-citizenship-a-response-to-my-critics/.

[30] Ilan Wurman, “Jurisdiction and Citizenship,” Harvard Journal of Law & Public Policy 49 (2026): 315–449, https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=2203&context=faculty_articles.

[31] Amy Swearer, “The Citizenship Clause’s Original Meaning and What It Means Today,” Heritage Foundation Legal Memorandum no. 243 (May 14, 2019), https://www.heritage.org/immigration/report/the-citizenship-clauses-original-meaning-and-what-it-means-today.

[32] Lino A. Graglia, “Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy,” Texas Review of Law & Politics 14 (2009): 1, https://democrats-judiciary.house.gov/sites/evo-subsites/democrats-judiciary.house.gov/files/documents/Graglia150429.pdf; Robert G. Natelson, “An Objective Guide to Birthright Citizenship,” American Thinker, August 31, 2015, https://www.americanthinker.com/articles/2015/08/an_objective_guide_to_birthright_citizenship.html. See also, foundationally, Peter H. Schuck and Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (New Haven, CT: Yale University Press, 1985).

[33] Michael Anton, “Citizenship Shouldn’t Be a Birthright,” Washington Post, July 18, 2018, https://www.washingtonpost.com/opinions/citizenship-shouldnt-be-a-birthright/2018/07/18/7d0e2998-8912-11e8-85ae-511bc1146b0b_story.html; Ilan Wurman, “Jurisdiction and Citizenship,” Harvard Journal of Law & Public Policy 49 (2026): 315–449, https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=2203&context=faculty_articles; Amy Swearer, “The Citizenship Clause’s Original Meaning and What It Means Today,” Heritage Foundation Legal Memorandum no. 243 (May 14, 2019), https://www.heritage.org/immigration/report/the-citizenship-clauses-original-meaning-and-what-it-means-today.

[34] Declaration of Independence, para. 2 (1776), https://www.archives.gov/founding-docs/declaration-transcript.

[35] Declaration of Independence, para. 1 (1776), https://www.archives.gov/founding-docs/declaration-transcript.