How The Federalist Papers Decode the Constitution and What the 14th Amendment’s Authors Really Meant About Birthright Citizenship

How The Federalist Papers Decode the Constitution and What the 14th Amendment’s Authors Really Meant About Birthright Citizenship

If the Constitution is the script for the American experiment in self-government, The Federalist Papers are the director’s commentary. Written under the pressure of a ratification battle, the eighty-five essays penned by Alexander Hamilton, James Madison, and John Jay were designed to persuade a skeptical New York public to accept the new charter. In doing so, however, they did something far more enduring: they unpacked the language of the Constitution, defined its terms, and explained exactly why the text reads the way it does. For anyone seeking the original meaning of the Constitution’s compressed, legalistic phrases, The Federalist Papers remain the single most authoritative record of the Framers’ intent. And when we apply that same originalist methodology looking to what those who drafted and ratified a provision said it meant to the 14th Amendment’s Citizenship Clause, the historical record delivers a clear, if now controversial, answer: birthright citizenship was never intended to apply to the children of those who owe allegiance to a foreign power.

The Federalist Papers as the Rosetta Stone of the Constitution

The Constitution is a remarkably short document. It sketches the architecture of government in broad strokes, leaving the detailed mechanics and philosophical underpinnings largely unwritten. That is not an accident; it was drafted in the closed sessions of the Philadelphia Convention, and the final text was designed to be ratified by the people, not merely dissected by lawyers. But the lack of a legislative history for the Constitution itself has always made its terse phrases vulnerable to misunderstanding and manipulation. The Federalist Papers fill that gap. They are not just political propaganda for ratification. They are contemporaneous expositions, written by two men who sat in the Constitutional Convention (Madison and Hamilton), explaining clause by clause what the drafters meant.

Consider how The Federalist Papers define the Constitution’s most elastic and abused phrases.

“Necessary and Proper”

The Necessary and Proper Clause (Article I, Section 8, Clause 18) grants Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” In the hands of modern progressivism, this has become a catch-all for virtually unlimited federal authority. But Madison, in Federalist No. 44, calmly dissects the language. He mocks the anti-Federalist fear that “necessary and proper” could swallow the enumerated powers, calling it a “misconstruction.” He explains that “necessary” does not mean “absolutely indispensable” in every case, but rather that it must be “conducive” to the end and that “proper” means the law must be consistent with the Constitution’s principles and the reserved rights of the states. The clause, he insists, is declaratory of what would have been implied anyway. Without it, the Constitution would be a “dead letter.” It is a rule of construction, not a grant of unconfined discretion. Hamilton, in Federalist No. 33, goes further: the power to make laws necessary and proper is “perfectly harmless” because if Congress tries to use it for a purpose not delegated, the act would be a “usurpation.” The Framers never dreamed that the clause would be read as a license to regulate inactivity (as in the individual mandate cases) or to create a national police power.

“General Welfare”

The Taxing and Spending Clause gives Congress the power to “provide for the… general Welfare of the United States.” Hamilton and Madison famously split later, but in The Federalist Papers they speak with one voice: this is not an independent, plenary grant of power. Madison in Federalist No. 41 directly addresses the “triumphant misconstruction” that the general welfare phrase gives Congress a “power to legislate in all cases whatsoever.” He states unequivocally that the general welfare clause is limited by the “specified powers” that follow; otherwise, the enumeration of powers would be “absurd and useless.” The phrase “general welfare” is a description of the purpose for which taxes can be raised, not a separate bucket of authority. The federal government is one of limited, enumerated powers, and the general welfare language was never intended to transform it into a Leviathan that could spend on any object a bare majority deemed “general.”

“Supreme Law of the Land”

The Supremacy Clause (Article VI) declares that the Constitution, laws made in pursuance thereof, and treaties are the supreme law. In Federalist No. 27, Hamilton explains that this doesn’t mean the federal government can run roughshod over the states. The key qualifier is “in pursuance thereof”: only those federal actions that are constitutional are supreme. A federal statute that exceeds the enumerated powers is void. This is the foundation for judicial review. The clause ensures uniformity in the application of legitimate federal authority, but it does not nullify the states’ reserved powers. It is a hierarchy of law, not a permission slip for federal omnipotence.

Separation of Powers and the Judicial Role

Federalist No. 51 is perhaps the most famous essay in the series, and its maxim “ambition must be made to counteract ambition” is often quoted. But what is less often appreciated is Madison’s precise description of the separation of powers. He explains that the branches must be “separate and distinct” so that each can act as a check on the others, not that they must be hermetically sealed. The goal is to prevent the “accumulation of all powers, legislative, executive, and judiciary, in the same hands.” In modern terms, this forecloses the administrative state agencies that simultaneously write rules, enforce them, and adjudicate disputes. Madison might not have envisioned the EPA or the CFPB, but his logic condemns them.

Then there is Federalist No. 78, where Hamilton sets out the nature of the judiciary. The courts have “neither FORCE nor WILL, but merely judgment.” They are to declare the sense of the law, and when a statute conflicts with the Constitution, they must prefer the superior obligation. Hamilton’s essay is the ur-text for originalism itself. The judiciary’s duty is to interpret the law according to its original meaning, not to substitute its own policy preferences. The Constitution is a fixed, written instrument; judges are not at liberty to “substitute their own pleasure to the constitutional intentions of the legislature.” This vision of a restrained judiciary, faithful to text and history, is the conservative vision.

The Structure of Liberty

One of the most telling aspects of The Federalist Papers is their explanation of why the original Constitution lacked a Bill of Rights. In Federalist No. 84, Hamilton argues that a bill of rights is unnecessary in a constitution of limited and enumerated powers because the government has no power to abridge freedom of speech or religion in the first place. “Why declare that things shall not be done which there is no power to do?” he asks. A bill of rights might even be dangerous, because it could imply that the government possesses power not expressly granted. Madison later shepherded the Bill of Rights through the First Congress, but Hamilton’s argument reveals the Framers’ core understanding: the Constitution grants power, and whatever is not granted is reserved. The people’s liberties are protected by the structure of the government itself a structure of enumerated powers, federalism, and separated branches.

This structural insight is the key to reading the Constitution as a conservative originalist. You do not look for isolated phrases to justify expanding government. You read the document as a whole, with the default being liberty and local self-government. The Federalist Papers are the handbook for that reading.

Applying the Originalist Method: The 14th Amendment and Birthright Citizenship

If The Federalist Papers teach us anything, it is that the meaning of the Constitution is fixed at the time of its enactment and can be recovered from the public debates of those who wrote and ratified it. The same rule applies to the amendments. And no clause is more fiercely contested today than the first sentence of the 14th Amendment:

“All 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.”

From a conservative originalist perspective, the crucial phrase is “subject to the jurisdiction thereof”. That language was not empty. It was carefully chosen to exclude certain classes of persons born on American soil. The modern, loose interpretation that anyone born within the geographic boundaries of the United States, regardless of their parents’ legal status or national allegiance, is automatically a citizen is a departure from the amendment’s intended meaning.

The Historical Context: Overturning Dred Scott, Not Creating Universal Birthright Citizenship

The Citizenship Clause was drafted in the aftermath of the Civil War to overturn the Supreme Court’s infamous decision in *Dred Scott v. Sandford* (1857), which had held that black Americans, whether free or enslaved, could never be citizens. The Clause constitutionalized the language of the Civil Rights Act of 1866, which declared that “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.” Notice the wording of the 1866 Act: it grants citizenship to those born in the U.S. and not subject to any foreign power. That phrase, “not subject to any foreign power,” is the forerunner of “subject to the jurisdiction thereof.” It tells us that the framers of the 14th Amendment were consciously drawing a line between those who owe complete allegiance to the United States and those who owe allegiance to another sovereign.

The Senate debate on the 14th Amendment makes this explicit. Senator Jacob Howard of Michigan, the amendment’s floor manager and the man who introduced its language in the Senate, explained what “subject to the jurisdiction thereof” meant. He said:

“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

Critics of the conservative view often stop reading there, claiming Howard only meant to exclude diplomatic families. But Howard immediately continued, providing a broader definition of “jurisdiction”:

“It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. … The word ‘jurisdiction,’ as here employed, ought to be construed so, as to imply a full and complete jurisdiction on the part of the United States, coextensive with all the powers of Congress, and operating directly upon the citizen, and not merely a qualified jurisdiction, such as that which is recognized in the case of Indians, or of foreigners temporarily residing within the limits of the United States.”

Howard is distinguishing between two types of jurisdiction: “full and complete” jurisdiction, which is what the United States exercises over its own citizens and those who have permanently transferred their allegiance, and “qualified” jurisdiction, which applies to Indians living under tribal sovereignty and, critically, to “foreigners temporarily residing” in the country. In the legal understanding of the 1860s, the allegiance of a child followed that of the father. A child born to a temporary foreign resident, someone who had not renounced his native allegiance and become part of the American Political Community was himself subject to a foreign power.

“Subject to the Jurisdiction Thereof” Means Allegiance, Not Mere Territorial Subjection

The phrase “subject to the jurisdiction thereof” was drawn from the law of nations and Anglo-American common law principles of jus soli (birthright citizenship). In its traditional form, jus soli was not an unconditional rule. William Blackstone’s Commentaries, which were the legal bible of the founding era, recognized that children born within the realm to “alien enemies” or to ambassadors were not subjects of the Crown. More importantly, the leading American treatise writer, Attorney General Edward Bates, in an 1862 opinion on citizenship, stressed that “jurisdiction” in this context means the “allegiance” owed by the individual and the protection owed by the sovereign a mutual, exclusive relationship.

When Senator Lyman Trumbull of Illinois, a key architect of the Civil Rights Act, was asked whether the Act would make citizens of Chinese laborers living in California or Indians, he answered that it would not, because they owe allegiance to “their own tribal regulations” or to a foreign emperor. Trumbull stated that the law applies to those “subject to our laws” but who are also “not owing allegiance to anybody else.” That is the crucial test: not merely being physically present and bound to obey traffic laws, but owing exclusive political allegiance to the United States.

The conservative originalist position holds that the 14th Amendment’s Citizenship Clause was designed to extend citizenship to the freed slaves and their descendants people who had no other allegiance, who were permanently domiciled, and who were fully and completely subject to the political jurisdiction of the United States. It was not designed to extend automatic citizenship to the children of foreign nationals who happen to be present within U.S. borders, whether legally as tourists or illegally. The modern interpretation conflates territorial jurisdiction (the obligation to obey local laws) with political jurisdiction (the reciprocal bond of allegiance and membership in the body politic). Everyone within U.S. borders is territorially subject to our laws; that is why a tourist can be prosecuted for theft. But that does not make them part of “We the People.”

What About United States v. Wong Kim Ark (1898)?

The Supreme Court’s 1898 decision in Wong Kim Ark is frequently brandished as a trump card. The Court held that a child born in San Francisco to Chinese parents who were lawful permanent residents was a citizen under the 14th Amendment. But conservative scholars like John Eastman and others have argued that the case was correctly decided on its narrow facts the parents were domiciled permanent residents, not temporary visitors or undocumented migrants. The Court specifically noted that Wong’s parents had a “permanent domicil and residence” in the United States and were “not engaged in any diplomatic or official capacity under the Emperor of China.” In other words, the parents had taken up permanent allegiance, and the child was therefore subject to full and complete jurisdiction. The case says nothing about the children of illegal aliens, temporary workers, or tourists, and the interpretive dicta that sweeps more broadly is just that dicta, inconsistent with the original meaning.

The writer of the 14th Amendment, Senator Howard, and his colleagues, repeatedly emphasized that the amendment codifies the principle of the 1866 Civil Rights Act: birth within the United States, plus not subject to any foreign power. A person who enters the country illegally, or who remains only for a temporary purpose, has not severed his allegiance to his home country. Their children, as a matter of law at the time, inherited that foreign allegiance. They were not, and were never meant to be, birthright citizens.

The Constitution’s Text Deserves Its Original Meaning

The Federalist Papers demonstrate that the Constitution’s words were chosen with precision to convey a fixed meaning. The “general welfare” did not mean anything that pleases Congress; “necessary and proper” did not mean convenient; the separation of powers was not a suggestion. In the same way, the 14th Amendment’s “subject to the jurisdiction thereof” was not an empty flourish. It was a legal term of art that incorporated the common law understanding of allegiance and excluded those who remained subject to a foreign sovereign.

A conservative perspective on the Constitution insists that we take the Framers and the Amendment-writers at their word. We do not rewrite the plain meaning through judicial fiat or political expediency. The federal government’s obligation to protect the constitutional order includes the duty to ensure that citizenship is not cheapened into an accident of geography. The 14th Amendment was a noble and necessary corrective to the evil of slavery, establishing that a person’s race could never bar him from full membership in the American political community. It was never intended to be a loophole for circumventing immigration law. Reading the language in light of its original public meaning, illuminated by the notes left behind by the men who wrote it, reveals a Citizenship Clause that is both clear and demanding a cornerstone of sovereignty, not a reward for crossing a border.

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