Oh Deer: The Elk Court’s Misunderstanding of the Citizenship Clause

This Article examines the enduring legacy of Elk v. Wilkins, 112 U.S. 94 (1884), a Supreme Court decision that interpreted the Fourteenth Amendment’s Citizenship Clause to exclude Native Americans from birthright citizenship. By relegating Native citizenship status to a statutory privilege rather than a constitutional right, Elk created a framework that has since been weaponized to challenge birthright citizenship for the children of undocumented immigrants. This Article demonstrates how Elk’s flawed reasoning—particularly its narrow reading of “subject to the jurisdiction thereof”—continues to shape legal and political efforts to erode the Fourteenth Amendment’s guarantees.

Drawing on Justice Harlan’s dissent in Elk, the legislative history of the Fourteenth Amendment, and the text of the Citizenship Clause, this Article argues that Elk was wrongly decided and that the jurisdictional requirement was never intended as a tool for exclusion. The Reconstruction Framers designed the Citizenship Clause to ensure equal citizenship for all persons born on U.S. soil, regardless of ancestry or parental status. Justice Harlan’s dissent provides a blueprint for this inclusive reading, rejecting the notion that allegiance at birth determines jurisdiction.

This Article calls for the explicit repudiation of Elk and its continued misuse in modern birthright citizenship debates. The Fourteenth Amendment’s promise is clear: for anyone born in the United States who subjects themselves to its jurisdiction, birthright citizenship is a constitutional right, not a congressional privilege.