By Carol Nackenoff and Julie Novkov
One of President Donald Trump’s first executive orders relating to immigration and immigrants is a direct attack on the long-standing constitutional principle of birthright citizenship. That’s the declaration in the 14th Amendment to the Constitution that anyone born on U.S. soil is a U.S. citizen, regardless of their parents’ nationalities or immigration status.
Specifically, Trump’s order says the federal government will stop issuing federal identification documents such as Social Security cards and passports to infants born in the U.S. unless at least one of their parents is either a U.S. citizen or a “lawful permanent resident.” So it would deny paperwork to infants born to people who are in the U.S. by other, legal means, such as work, tourist or student visas, as well as to undocumented people. Several states have already filed suit to block the move.
This first step down a path to deny citizenship to some individuals born in the United States reflects a conflict that’s been going on for nearly 200 years: who gets to be an American citizen.
Debates in American history over who gets citizenship and what kind of citizenship they get have always involved questions of race and ethnicity, as we have learned through our individual research on the historical status of Native Americans and African Americans and joint research on restricting Chinese immigration.
Nonetheless, even in the highly racialized political environment of the late 19th century, the U.S. Supreme Court endorsed an expansive view of birthright citizenship. In an 1898 ruling, the court decreed that the U.S.-born children of immigrants were citizens, regardless of their parents’ ancestry.
That decision set the terms for the current controversy, as various Republican leaders, U.S. Sens. Tom Cotton of Arkansas and Marsha Blackburn of Tennessee, as well as Vice President JD Vance, have claimed that they will possess the power to overturn more than a century of federal constitutional law and policy and deny birthright citizenship.
Citizenship by birth
Wikimedia Commons
Most citizens of the U.S. are born, not made. Before the Civil War, the U.S. had generally followed the English practice of granting citizenship to children born in the country.
In 1857, though, the Supreme Court decided the Dred Scott v. Sandford case, with Chief Justice Roger Taney declaring that people of African descent living in the U.S. – whether free or enslaved, and regardless of where they were born – were not actually U.S. citizens.
After the Civil War, Congress explicitly rejected the Dred Scott decision, first by passing legislation reversing the ruling and then by writing the 14th Amendment to the Constitution, which specified that “[a]ll 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.”
This broad language intentionally included more than just the people who had been freed from slavery at the end of the Civil War: During legislative debate, members of Congress decided that the amendment should cover the children of other nonwhite groups, such as Chinese immigrants and those identified at the time as “Gypsies.”
Edward McPherson, Clerk of the House of Representatives of the United States/Wikimedia Commons
Still barring some people from citizenship
This inclusive view of citizenship, however, still had an area judges hadn’t made clear yet – the phrase “subject to the jurisdiction thereof.” In 1884, the Supreme Court had to interpret those words when deciding the case of a Native American who wanted to be a citizen, had renounced his tribal membership and attempted to register to vote.
The justices ruled that even though John Elk had been born in the U.S., he was born on a reservation as a member of a Native American tribe and was therefore subject to the tribe’s jurisdiction at his birth – not that of the United States. He was, they ruled, not a citizen.
In 1887, Congress did pass a law creating a path to citizenship for at least some Native Americans; it took until 1924 for all Native Americans born on U.S. soil to be recognized as citizens.
U.S. National Archives
The text of the 14th Amendment also became an issue in the late 19th century, when Congress and the Supreme Court were deciding how to handle immigrants from China. An 1882 law had barred Chinese immigrants living in the U.S. from becoming naturalized citizens. A California circuit court, however, ruled in 1884 that those immigrants’ U.S.-born children were citizens.
In 1898, the Supreme Court took up the question in United States v. Wong Kim Ark, ultimately ruling that children born in the U.S. were, in the 14th Amendment’s terms, “subject to the jurisdiction” of the United States, so long as their parents were not serving in some official capacity as representatives of a foreign government and not part of an invading army. Those children were U.S. citizens at birth.
This ruling occurred near the peak of anti-Chinese sentiment that had led Congress to endorse the idea that immigration itself could be illegal. In earlier rulings, the court had affirmed broad powers for Congress to manage immigration and control immigrants.
Yet in the Wong Kim Ark ruling, the court did not mention any distinction between the children of legal immigrants and residents and the children of people who were in the United States without appropriate documentation. All people born in the United States were automatically simply citizens.
The long reach of Wong Kim Ark
John Fitisemanu/Twitter
Since the Wong Kim Ark ruling, birthright citizenship rules haven’t changed much – but they have remained no less contentious. In 1900 and 1904, leaders of several Pacific islands that make up what is now American Samoa signed treaties granting the U.S. full powers and authority to govern them. These agreements, however, did not grant American Samoans citizenship.
A 1952 federal law and State Department policy designates them as “non-citizen nationals,” which means they can freely live and work in the U.S. but cannot vote in state and federal elections.
In 2018, several plaintiffs from American Samoa sued to be recognized as U.S. citizens, covered by the 14th Amendment’s provision that they were born “within” the U.S. and therefore citizens. The district court found for the plaintiffs, but the 10th U.S. Circuit Court of Appeals reversed, ruling that Congress would have to act to extend citizenship to territorial residents.
A new debate has ignited over whether Congress has the power to alter birthright citizenship, and even over whether the president, either through an executive order or through directing the State Department not to recognize some individuals as citizens, can change the boundaries around who gets to be a citizen. Efforts to alter birthright citizenship have already provoked legal challenges.
Trump is just the latest in a long line of politicians who have objected to the fact that Latin American immigrants who come to the U.S. without legal permission can have babies who are U.S. citizens. Most legal scholars, even those who are quite conservative, see little merit in claims that the established rules can be altered.
At least until now, the courts have continued to uphold the centuries-long history of birthright citizenship, dating back to before the Constitution itself and early American court rulings. The question seems likely to reach the Supreme Court again, with the fundamental principle hanging in the balance.
This article is an updated version of an article originally published Dec. 4, 2024.
Carol Nackenoff is Richter Professor Emerita of Political Science at Swarthmore College. Julie Novkov is Professor of Political Science and Women’s, Gender and Sexuality Studies at the University at Albany, State University of New York.
.jpg){kind=link}
jackson says
Trump would be long dead before he ever gets a Constitutional amendment. This is all Trump hot air & wishful thinking. Same goes for deporting 11 million people at “lighting speed.” Even Congress can’t change the 14th Amendment. Not on it’s own.
Deborah Coffey says
Ordinarily in America, it would be quite difficult to change a Constitutional Amendment but, a dictator knows no bounds. By July, we will be living in an entirely different country. We will be poorer. We will be angrier. We will be hungrier. We will not be free from the chains of tyranny. And, we will wonder why we didn’t fight harder to save our democracy from ruin.
Deborah Coffey says
Trump doesn’t care about any of that. He will do what he wants…by force if he has to.
DaleL says
I am not a fan of Mr. Trump or his push to end birthright citizenship as we now understand it. However, I do see a legal line of attack. The 14th Amendment applies to the child who is born, not the parent(s).
Babies and young children do not pay taxes, work, etc. They cannot be prosecuted under Federal law. A person who is 12 years old or older must apply for a Social Security number, by law. The Tax Reform Act of 1986 required that every dependent age five or older who is listed on a tax return to have their own Social Security number. Social Security is a Federal program of the United States. I think the argument might be that until a child who is born in the USA , has been issued a Social Security number or can be arrested, they are not a citizen of the United States.
Section One: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….”
Section Four: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
I for one, wish the 14th Amendment sections One and Three had been written with a bit more clarity and detail. If Three had been interpreted by SCOTUS the way I thought it should be, we might not be having this conversation.
Whathehck? says
First they’ll come for the undocumented, then American born children of undocumented parent(s), then American born children of foreign born documented parents, then foreign born American Citizens, then what? LGBTQ? Hispanics, Asians……
I renounced my flag to become an American citizen, I never regretted it until now. I am afraid this will not be the United States I was transferred to. I and my children were never vicious, bloodthirsty criminals as the future dictator so “eloquently” said. Viva Zapata!
Joe D says
Interesting thought. My German/French Paternal grandfather was born of immigrant parents…several of my great aunts and great uncles were born in Germany BEFORE the family immigrated from Germany to Baltimore, Md …then later to southern Pennsylvania for factory jobs. My great grandfather was a skilled machinist in Germany, my grandmother spoke only GERMAN.
At the time my grandfather and his younger siblings were born (in the USA), I have no idea if my great grandparents were “officially” US citizens at the time of my grandfather’s birth! I have a cousin who has traced back the family history to the original German villages where my ancestors originated…so I guess (mostly through US Census records of the day), I’ll have to pose that very question….
The overpowering TRUTH though is, the ONLY native born citizens of this country were the American Indians. EVERYONE ( I repeat EVERYONE) who arrived later was an IMMIGRANT!
Like most everything else, once the controlling powers have taken over, they slam the door shut on those that come later…don’t even get me started on the immigration process of the IRISH/GERMAN ancestry of my Mother’s side of the family…RACISM didn’t begin in the 1950’s! Unfortunately I don’t have as much SPECIFIC information about the maternal side of my ancestry. But there is an increasing desire to explore it!
DaleL says
I will add this: Because of Section Four, it is up to Congress to define the meaning of Section One. I don’t think that President Trump’s Executive Order, to declare an end to birthright citizenship, as it is now understood to be, is at all legal.
However, Section One of the 14th Amendment does NOT refer in any manner to the immigration status or citizenship status of the PARENTS. It applies to the PERSON who is either born in the USA or naturalized in the USA. The second clause is specific, “…, and subject to the jurisdiction thereof,…” Specifically the laws of the US government, not state or local laws. If under the laws of the US, a person can be held accountable for their actions (can be convicted of a crime, must file a tax return, etc.), then they are certainly subject to the jurisdiction of the USA. The fuzzy part is with babies and children. No child under 12 years of age is subject to being prosecuted for a federal crime. With the current makeup of the Supreme Court, I think that Congress might be able to restrict birthright citizenship to people who are born in the USA and old enough to be arrested by the “feds”.
Robert says
Wouldn’t it be great if Congress upheld the US Constitution which is an Oath of Office they all took and start impeachment procedures before the tyrant destroys our democracy and freedom before it is too late. He lied to the people to get their vote and now that he did he could give too craps about them or what he promised them.
The MAGA Republican party are weak, cowards that have no guts to stand up to the dictator because he threatens everyone and anyone. Congress needs to start doing their jobs for this country or they also should be removed from office.
me says
Trump and Vance both married immigrants, Trump got Melania in right away she didn’t have to wait months or years he slipped her right in.
Now both Trump and Vance are discriminating against immigrants instead of being mature and coming up with a human solution to fix the system instead of constantly complaining about it.
Using military force does not resolve the problem. Instead of adding to the problem the MAGA Project 2025 Republicans need to intelligently come up with a resolution.
Start working together with the Democrats instead of always attacking and throwing insults. The American people want solutions not attacks and threats which doesn’t resolve a thing.
Laurel says
DaleL: Thank you, that’s interesting.
I think it’s more about distraction and division. Keep us at each other’s throats while the King’s anointed oligarchs steal us blind. The middle class has always been the hardest to control. Strip them of their status, and keep them busy and poorer, and they are easier to manipulate. We’re seeing it now. Half of America is supporting this assault on our freedoms. United we stand, divided we fall.
The middle class taxpayer is financing Musk’s dreams of Mars, and it’s making him richer already, in the first few days of Trump’s reign. No wonder Musk is jumping around on the Presidential stage and saluting with enthusiasm. There’s no room on that stage for the average American. Now he’s off sticking his nose in German and British far right politics.
The question is: when will we ALL see what’s happening?
Laurel says
Me: Unfortunately, the object is not to resolve, resolution would actually be easier. The object is to make the rich richer.
Virginian says
Vance’s wife was born in the USA. see cite: https://en.wikipedia.org/wiki/Usha_Vance#:~:text=Usha%20Bala%20Chilukuri%20was%20born,1986%2C%20to%20Telugu%20Indian%20immigrants.
Sherry says
A federal judge has already issued a TRO for this order, calling it “blatantly unconstitutional”
Seattle: A federal judge said Thursday that President Donald Trump’s executive order ending birthright citizenship was “blatantly unconstitutional” and issued a temporary restraining order to block it.
Judge John Coughenour, a Ronald Reagan appointee who sits in Seattle, granted the request by Washington Attorney General Nick Brown and three other Democratic-led states for the emergency order halting implementation of the policy for the next 14 days while there are more briefings in the legal challenge.