Birthright citizenship and the 13th Amendment

This is not a typo. Of course it is the 14^th Amendment that contains the citizenship clause and so is front and center in every speech, press release, sound bite, newspaper editorial, law review article, and tweet about the birthright question. In a not very close second place in the citation of legal sources on the issue is the jus soli (“right of the soil” or “law of the soil”) birthright citizenship of the British common law, its incorporation into the American common law, and its infamous and unprincipled treatment in antebellum courts.

 

Much farther behind are citations to the 13^th Amendment. In fact, a little internet research, admittedly very little, turned up no references to the bearing of the language of the 13^th Amendment on citizenship. Yet that amendment, which preceded the 14^th by only a few months through the early stages of the amendment process, includes the clause “subject to their jurisdiction.” That is, subject to the jurisdiction of “the United States.” The phrase in the 14^th Amendment on which the birthright legal revisionists base their claims is “subject to the jurisdiction thereof [the United States].” It usually makes good sense to suspect that two very similar legislated phrases may well be related in meaning where the time period is the same, the social and political circumstances the same, the drafters the same, and the voters the same. This is surely not less so when the two pieces of legislation were closely related part of a single political program – here, reconstruction.