Why the Argument for Birthright Citizenship Is Not the Slam Dunk Many Say It Is

Attorneys general from 22 states have already sued in two federal district courts and won preliminary rulings to block what they call the president’s “unquestionably unconstitutional” action. A lawsuit filed by four states in the Western District of Washington claims his action “is contrary to the plain terms of the Fourteenth Amendment’s Citizenship Clause.”  

Legal experts on both sides of the debate agree that the issue likely will be resolved by the Supreme Court. It’s a case raising momentous questions about the meaning of citizenship in a nation founded by immigrants, hinging largely on the legal interpretation of a few words in a Civil War-era amendment to the Constitution.

Trump’s order would align U.S. policy with much of the developed world, including the European Union, Japan, and the world’s two most populous countries, China and India. But it would make the U.S. an outlier on this side of the Atlantic: Almost all of the estimated 33 nations that embrace what’s called birthright citizenship are North and South American nations that accepted waves of mostly European settlers and enslaved people.

The United States appeared to codify the policy with the passage of the 14^th  Amendment following the Civil War, which was intended to grant citizenship to freed slaves. A subsequent Supreme Court case from 1895, involving the son born in San Francisco to Chinese immigrants who were here legally, has long been interpreted as making all babies born on U.S. soil citizens. That son would still be considered a citizen under Trump’s executive order. 

Called the “Citizenship Clause,” the key sentence in the 14^th Amendment states, “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.” 

Opponents of Trump’s order say the amendment’s meaning is clear. “The Citizenship Clause of the Fourteenth Amendment unambiguously and expressly confers citizenship on ‘[a]ll persons born’ in and ‘subject to the jurisdiction’ of the United States,” reads a complaint filed in Federal District Court in Massachusetts. Signed by 18 attorneys general and the city attorney for San Francisco, the lawsuit states that birthright citizenship under the 14^th Amendment is “automatic” and “any attempt to deny citizenship to children based on their parents’ citizenship or immigration status would be ‘unquestionably unconstitutional.’”

Supporters of Trump’s order argue that the inclusion of the phrase “and subject to the jurisdiction thereof” transforms what would be a straightforward assertion, that anyone born on U.S. soil is a citizen, into a fraught legal question. Although they appear to be the minority, various scholars have long doubted the validity of birthright citizenship because of that ambiguous phrase – and by applying what they see as basic common sense.

Political moderates such as legal scholar and retired federal judge Richard Posner have long ridiculed the idea of birthright citizenship, pointing out that Congress passed the 14^th Amendment to ensure citizen rights and protections for former slaves, not the children of foreigners who gave birth in America.

“What about these foreigners coming here – pregnancy tourists – who want to have their child born in the United States, so he will have refuge if things go bad in his country?” said Posner during a 2015 talk discussing his book, “Our Republican Constitution: Securing the Sovereignty of the People.” “I don’t think it is required by law. I think the Supreme Court would say, what they meant was that the children of the former slaves would be citizens.”

“Under the best reading of the Citizenship Clause of the 14th Amendment, the citizenship status of the American-born children of illegal immigrants is not mandated by the Constitution,” argue two liberals, Yale Law School’s Peter H. Schuck and Rogers M. Smith, emeritus professor of political science at the University of Pennsylvania. The professors, who both favor expanded legal immigration, point to that opaque qualifying phrase of the 14^th Amendment as a deal-killer for birthright citizenship.

While rarely cited by the national media, Schuck and Rogers have been making their case against birthright citizenship for almost 30 years, ever since they published their book, “Citizenship Without Consent: Illegal Aliens in the American Polity.”

“The most important and under-studied question in regard to the Citizenship Clause is the meaning of this phrase – then and now – given the framers' and ratifiers' intentions,” Schuck and Rogers write. When Congress debated the 14^th Amendment, they argue, members did not discuss nor ever mean to grant citizenship to the children of those present in the U.S. in violation of American law. 

“It’s not so much a conservative issue,” said Linda Denno, an associate dean at the University of Arizona. “It’s just that conservatives are getting it operationalized.” Denno studies constitutional law and is affiliated with the Claremont Institute, which is seen as the leading think tank producing research chipping away at the lawfulness of birthright citizenship.  

Conservative critics of birthright citizenship cite the Claremont Institute’s Edward Erler as the scholar whose research surfaced the most compelling historical evidence that Congress never intended for children of illegal immigrants to be automatic citizens. Erler’s narrative sprawls across American history, touches on the Declaration of Independence, and even delves into British common law. 

But even Erler admitted in a Claremont talk last week that some at his own institute say his argument is “too complicated to be persuasive.” 

In condensed form, Erler’s argument starts with the Civil Rights Act of 1866, which defined American citizenship. Congress passed the act after the Civil War to protect the rights of newly freed slaves but had to override the veto of President Andrew Johnson, a Southerner who did not support citizenship for former slaves but succeeded Lincoln after his assassination. Concerned that future lawmakers might repeal or alter the Civil Rights Act, Congress ratified the 14^th Amendment a few years later.

Supporters of birthright citizenship claim the 14^th Amendment’s text is unambiguous and clear that everyone born in America is a citizen. But that was not always the case.

'Subject to the Jurisdiction' of Whom?

Wong Kim Ark was born in San Francisco to legal Chinese immigrants in 1873, five years after the passage of the 14^th Amendment. Following the passage of the Chinese Exclusion Act of 1882, his parents returned to their homeland, as did Wong. In 1895, Wong was denied re-entry to the U.S. when he disembarked from a ship from China.

Borrowing language directly from the 14^th Amendment, the 6-2 Supreme Court majority found that Wong was a citizen, born “subject to the jurisdiction" of the United States, confirming congressional intent that children born in the country have automatic birthright.

“I think it’s clear with the Wong decision that if someone is born in the United States, then they are a citizen,” said John Yoo, professor of law at UC Berkeley and a former justice department official under George W. Bush. Yoo said the  “subject to the jurisdiction” phrase does not qualify nor limit the scope of the citizenship clause, as Erler argues. In fact, the Supreme Court reiterated the phrase in the Wong decision, Yoo said, to emphasize the original meaning. 

“That language has this very settled and long understood meaning,” Yoo said. Excluded from birthright citizenship: those born to foreign diplomats, soldiers of invading armies, and American Indians, who were members of their own tribal nations. American Indians and their children did not become citizens until 1924 when Congress passed the Indian Citizenship Act.

The same  “subject to the jurisdiction" language appears again five decades later in the Immigration and Nationality Act of 1952. Again, Yoo noted, this means that Congress wanted to further underline birthright citizenship, not qualify it.

“When Congress used this same language in the law, they expressed no desire to adopt some weird, unorthodox meaning to it,” he said. “Usually when Congress uses legal terms, we assume they use those words to say what the courts say they mean.”

But where Yoo sees a legal consistency that underlines and emphasizes birthright citizenship, others see the opposite. The “subject to the jurisdiction thereof” phrase invalidates the foundation for automatic citizenship because it was never originally defined hundreds of years ago in British common law, which served as the basis for the 14^th Amendment.

“The immediate problem is that the language used in the amendment ‘subject to the jurisdiction of’ is alien to the common law itself,” Erler said last week. “It does not appear in the common law.” While debating the Civil Rights Act of 1866 and the 14^th Amendment to grant citizenship to former slaves, Congress chose the“subject to the jurisdiction” phrase to exclude all others, not to include them, as Yoo and others contend.

“They want to argue this means ‘anyone else who was in the country for any other reason,’” Denno said. “And, of course, that’s ridiculous.”

Denno noted another problem with the critical Wong Kim Ark Supreme Court decision when granting citizenship to illegal aliens. While Wong’s parents were not citizens, they were not “illegal immigrants” as they lived in San Francisco’s Chinatown legally as permanent residents. The very idea of an “illegal immigrant” did not even exist until years after the debate and passage of the 14^th Amendment – in 1875 when the federal government first began regulating immigration.

“Congress needs to pass a law to define the meaning of ‘subject to the jurisdiction of,’ and that would end all of this,” Denno said. “Trump is pressing the issue because Congress is more or less incapable of doing much of anything.”

Problematic News Coverage

Very little, if any, of the legal history of birthright citizenship has made it into the press. Instead, most reporters cite a simplistic reading of the 14^th Amendment to declare Trump’s agenda an assault on the Constitution and the entire debate moot. 

“The 14^th Amendment, though, says that, quote, ‘All persons born in the United States are citizens,’ " NBC’s Meet the Press moderator Kristen Welker said to Trump in an interview two months back. Welker’s reading of the amendment truncated most of the Citizenship Clause. “Can you get around the 14^th Amendment with an executive action?”  she asked.

Like Welker, other journalists reporting on her NBC interview failed to note the critical phrase “subject to the jurisdiction thereof” that legal scholars on one side cite as restricting automatic citizenship. “Birthright citizenship is enshrined in the Constitution,” Hillary Clinton confidently asserted on X, also omitting the full text of the Citizenship Clause. “Trump may want to read it.”

However, Yoo called the current dispute over birthright citizenship “symbolic,” and while it generates headlines and heated arguments, he said, it doesn’t address the very real problem of illegal immigration. “The number of tourist babies is 150,000 a year,” he told RealClearInvestigations. “This is nothing compared to 3 million coming across the Southern border. If you want to fix illegal immigration, birthright citizenship is not the concern.”

But on the matter of the children of illegal immigrants, Georgetown Law professor Randy E. Barnett and University of Minnesota law professor Ilan Wurman say “the case for Mr. Trump’s order is stronger than his critics realize." In an opinion essay in the New York Times over the weekend, they wrote that illegal immigrant 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 – one cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws.” 

So, they suggest, illegal immigrants and their children might be out of luck.

As the legal debate heats up, Trump’s focus on birthright citizenship may be shifting opinions in his favor. About 60% of Americans favored birthright citizenship, according to a poll from The Economist and YouGov, released in the summer of 2023. But that support is wavering. More recent polls by the same two groups showed a trend with more Americans in the Trump camp. An Emerson College poll taken last month found that 45% supported Trump’s efforts to roll back birthright citizenship, while only 37% opposed.

Public debate may also be changing the opinions of public officials. 

In 2006, prominent conservative Judge James C. Ho published a legal article that defended birthright citizenship for children of illegal immigrants, citing the text and history of both the 14^th Amendment and the Wong Kim Ark decision. Ho has sterling conservative credentials as a member of the Federalist Society and former Republican Party staffer on the Senate Judiciary, and Trump has included him on a short list for the Supreme Court.

But in a decision he wrote last summer, Judge Ho agreed with the Governor of Texas that he was facing an “invasion” of illegal immigrants. When questioned about that decision after the recent election, Judge Ho appeared to further align himself with the Trump view on automatic citizenship.

“Birthright citizenship obviously doesn't apply in case of war or invasion,” Judge Ho told Reason magazine. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can't imagine what the legal argument for that would be.”

However, Denno noted that Trump’s path to a Supreme Court decision that reverses decades of executive interpretation of the 14^th Amendment is likely long and uncertain, especially since Chief Justice Roberts seems loath to address controversial issues. “The Supreme Court is not taking it up, if they don’t have to,” Denno said.

Yoo said that Trump’s obvious strategy is to deny the child of illegal immigrants a social security card or passport, get sued all the way to the Supreme Court, and hope for a decision that overrules the 1898 Wong Kim Ark verdict. 

But Yoo doesn’t predict that the ending will make his fellow conservatives happy, despite all the evidence they have dug up.

“The President is allowed to have a different opinion on the Constitution and then try to persuade the Court to change their mind,” Yoo said. “And then he can lose.”