By Morgan Marietta
The Supreme Court on Dec. 5, 2025, agreed to review the long-simmering controversy over birthright citizenship. It will likely hand down a ruling next summer.
In January 2025, President Donald Trump issued an executive order removing the recognition of citizenship for the U.S.-born children of both immigrants here illegally and visitors here only temporarily. The new rule is not retroactive. This change in long-standing U.S. policy sparked a wave of litigation culminating in Trump v. Washington, an appeal by Trump to remove the injunction put in place by federal courts.
When the justices weigh the arguments, they will focus on the meaning of the first sentence of the 14th Amendment, known as the citizenship clause: “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.”
Both sides agree that to be granted birthright citizenship under the Constitution, a child must be born inside U.S. borders and the parents must be “subject to the jurisdiction” of the United States. However, each side will give a very different interpretation of what the second requirement means. Who falls under “the jurisdiction” of the United States in this context?
As a close observer of the court, I anticipate a divided outcome grounded in strong arguments from each side.
Arguments for automatic citizenship
Simply put, the argument against the Trump administration is that the 14th Amendment’s expansion of citizenship after the eradication of slavery was meant to be broad rather than narrow, encompassing not only formerly enslaved Black people but all persons who arrived on U.S. soil under the protection of the Constitution.
The Civil War amendments – the 13th, 14th and 15th – established inherent equality as a constitutional value, which embraced all persons born in the nation without reference to race, ethnicity or origin.
One of the strongest arguments that automatic citizenship is the meaning of the Constitution is long-standing practice. Citizenship by birth regardless of parental status – with few exceptions – has been the effective rule since the time of America’s founding.
Advocates also point to precedent: the landmark case of United States v. Wong Kim Ark in 1898. When an American-born descendant of resident noncitizens sued after being refused re-entry to San Francisco under the Chinese Exclusion Act, the court recognized his natural-born citizenship.
If we read the Constitution in a living fashion – emphasizing the evolution of American beliefs and values over time – the constitutional commitment to broad citizenship grounded in equality, regardless of ethnicity or economic status, seems even more clear.
However, advocates must try to convince the court’s originalists – Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – who read the Constitution based on its meaning when it was adopted.
The originalist argument in favor of birthright citizenship is that the phrase “subject to the jurisdiction” was meant to invoke only a small set of exceptions found in traditional British common law. In the Wong Kim Ark ruling, the court relied on this “customary law of England, brought to America by the colonists.”
One exception to birthright citizenship covered by this line of rulings is the child of a foreign diplomat, whose parents represent the interests of another country. Another exception is the children of invading foreign armies. A third exception discussed explicitly by the framers of the 14th Amendment was Native Americans, who at the time were understood to be under the jurisdiction of their tribal government as a separate sovereign. That category of exclusion faded away after Congress recognized the citizenship of Native Americans in 1924.
The advocates of automatic birthright citizenship conclude that whether the 14th Amendment is interpreted in a living or in an original way, its small set of exceptions do not override its broad message of citizenship grounded in human equality.
Opposition to birthright citizenship
The opposing argument begins with a simple intuition: In a society defined by self-government, as America is, there is no such thing as citizenship without consent. In the same way that an American citizen cannot declare himself a French citizen and vote in French elections without consent from the French government, a foreign national cannot declare himself a U.S. citizen without consent.
This argument emphasizes that citizenship in a democracy means holding equal political power over our collective decisions. That is something only existing citizens hold the right to offer to others, something which must be decided through elections and the lawmaking process.
The court’s ruling in Elk v. Wilkins in 1884 – just 16 years after the ratification of the 14th Amendment – endorses “the principle that no one can become a citizen of a nation without its consent.” By making entry into the United States without approval a federal offense, Congress has effectively denied that consent.
Scholars who support this view argue that the 14th Amendment does not provide this consent. Instead it sets a limitation. To the authors of the 14th Amendment, “subject to the jurisdiction thereof” conveyed a limit to natural citizenship grounded in mutual allegiance. That means if people are free to deny their old national allegiance, and an independent nation is free to decide its own membership, the recognition of a new national identity must be mutual.
Immigrants living in the United States illegally have not accepted the sovereignty of the nation’s laws. On the other side of the coin, the government has not officially accepted them as residents under its protection.
AP Photo/Evan Vucci, File
If mutual recognition of allegiance is the meaning of the 14th Amendment, the Trump administration has not violated it.
The opponents of birthright citizenship argue that the Wong Kim Ark ruling has been misrepresented. In that case, the court only considered permanent legal residents like Wong Kim Ark’s parents, but not residents here illegally or temporarily. The focus on British common law in that ruling is simply misguided because the findings of Calvin’s Case or any other precedents dealing with British subjects were voided by the American Revolution.
In this view, the Declaration of Independence replaced subjects with citizens. The power to determine national membership was taken away from kings and placed in the hands of democratic majorities.
For opponents of birthright citizenship, the 14th Amendment does not take that power away from citizens but instead codifies the rule that mutual consent is the touchstone of admission. The requirement to be “subject to the jurisdiction” provides the mechanism of that consent.
Congress can determine who is accepted as a member of the national community under its jurisdiction. In this view, Congress – and the American people – have spoken: Current federal laws make entry into U.S. borders without permission a crime rather than a forced acceptance of political membership.
What might happen
The court will likely announce a ruling in summer 2026 before early July, just in time for the 250th anniversary of the Declaration of Independence. The court will ultimately decide whether the Constitution endorses the declaration’s invocation of essential equality or its creation of a sovereign people empowered to determine the boundaries of national membership.
The court’s three Democratic-appointed justices – Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor – will surely side against the Trump administration. The six Republican-appointed justices seem likely to divide, a symptom of disagreements within the originalist camp.
The liberal justices need at least two of the conservatives to join them to form a majority of five to uphold universal birthright citizenship. This will likely be some combination of Chief Justice John Roberts, Brett Kavanaugh and Amy Coney Barrett.
The Trump administration will prevail only if five out of the six conservatives reject the British common law foundations of the Wong Kim Ark ruling in favor of citizenship by consent alone.
America should know by July Fourth.
Morgan Marietta is Professor of American Civics at the University of Tennessee.
West says
Someone tell me how trumps wife and parents have not been deported!
Laurel says
West; It’s who you know…
Melania’s parents were fast tracked in.
Laurel says
“Today, the court’s favorable rating is 22 percentage points lower than it was in August 2020, when 70% of Americans had a positive view.” – Pew Research Center pewresearch.org
Clarence Thomas is an Originalist? That’s interesting! I no longer believe in the Supreme Court.
So, let me tell you what I believe is happening now:
Trump is a classic domestic abuser, but on a grand scale. In a domestic abuse relationship, the man is often a mental, verbal and physical abuser. Trump calls women stupid, piggy, horse face, nasty, garbage, bimbo, low IQ, piece of ass, extremely unattractive, crude, rude, obnoxious, dumb and ugly, amongst other comments. He urges people to “beat the crap out of [a protester] him” at rallies. He lies about people. He calls for the death of people whom he doesn’t like. He brags of sexual assault, and is an adjudicated rapist. He has paid hush money to women he had sex with while married. He thinks only value of women around him is some form of physical attractiveness, and of course, unrealistic loyalty. He demands loyalty from everyone around him. He threatens people, and his followers carry it out. He has no care for the teenage girls who were sex trafficked by his close friend of over a decade. He said he could shoot someone and get away with it, which is happening now.
What does this have to do with this topic?
Plenty. A domestic abuser tries to keep the victim in a bubble. Keep the victim away from others. Constantly using mental, verbal and physical abuse. Complete control. That’s exactly what he is doing to us! He has turned away our allies, and our neighbors. He is trying to isolate us from everyone except those who support his control. He is trying to get rid of the educated. He is trying to get rid of ethnicity. He is trying to get rid of anyone who may think anything other than what he, and the Heritage Foundation, wants them to think, and who could possibly influence the rest of the people he believes he owns. This is abuse. He is abusing us, and the Supreme Court just may help him along. They have helped him so far. We can hope they will discontinue their support of his abuse of the U.S. citizens, us!
But so far, it’s going in the wrong direction. He is trying to override our protection, the Constitution, and continue his abuse.
Dusty says
That is because it was meant to allow the children of naturalized citizens to become citizens immediately. It was not meant so an illegal alien could race across the border and give birth in order to establish an anchor citizenship for the entire extended family. This is an example of illegal immigrants abusing the American system to benefit from laws that were designed to help the legal immigrants assimilate into our country.
Nephew Of Uncle Sam says
Marco Rubio’ parents were here “legally” yet were not U.S. Citizens when he was born. So does that mean he gets a pass or are ALL treated equally.
PaulT says
Sorry Dusty, though that’s an interesting misinterpretation.
The original intent of the 14th amendment was that post Civil War all the recently freed enslaved peould would become US citizens. with all of the rights that entailed,
And the Amendment’s text ‘All persons born OR naturalized in the United States……..’ really doesn’t support your argument.
Laurel says
Sorry Dusty, but the Constitution is not written as you write here. Your *interpretation* is exaggerated.
bo diddly says
Key Concepts
Territorial Sovereignty: Generally, anyone physically present within the territorial borders of the United States (including the 50 states, territories, and territorial waters) is subject to U.S. laws.
Allegiance and Protection: When an alien resides or is permanently domiciled in the U.S., they are entitled to the protection of U.S. laws and, in turn, owe allegiance and are fully “subject to the jurisdiction” of the U.S. government.
Skibum says
The Supreme Court’s ruling regarding birthright citizenship could have far reaching consequences, even for American citizens who were born in the U.S. The specific language within the 14th Amendment that says “all persons born or naturalized in the United States” was intended to reverse the Dred Scott decision and give citizenship to those former black slaves and supposedly, their descendants.
What would happen to all of the U.S. citizens in this country who are descendants of slaves if that constitutional doctrine which protected their citizenship were taken away? We already know the current occupier of the WH is a racist and a bigot, and has disparaged a number of the countries in Africa where black slaves were taken from.
With him in power for another three years, God forbid, just what additional horrendous and unhinged immigration enforcement orders from the convicted felon prez to his racist maga sycophants who control and oversee ICE and other federal agents could be expected?
I don’t believe this is just about the Mexican and South American immigrants who are in America, but it certainly pertains to them as well, regardless if they are here legally or not. I firmly believe this is just another in the racist president’s long history of racial bias against ANYONE who is not white, because he wants to whitewash the entire nation, removing anyone who does not look like him. And he is seeking the Supreme Court’s help, counting on the rightwing bent and extremist conservative justices to do his race based elimination of citizenship for him!
PaulT says
‘removing anyone who does not look like him’?
You mean that to stay in this country we’ll all need to get comb-overs and orange tints?. I think I’d rather self-deport!
Skibum says
Haha, touché, PaulT!!!
PaulT says
I realize I’m naive in thinking that the 14th Amendment is quite specific in it’s language. but the government’s possible arguments seem to open up a bag of worms.
If citizenship rights rely on the idea of ‘natural citizenship grounded on mutual allegiance’. I can’t see how newborns can be party to a mutual agreement. But lately the government has accused citizens who vocally disagreed with it’s policies of sedition.. If the court confirms the need for ‘mutual allegiance’ could these and other dissenters be stripped of citizenship at the whim of an all poweful White House’s yelling ‘sedition’ whenever it is criticized?
On the other hand, if the undocumented parents of children born in the United States and the offspring who claim citizenship were found not to be ‘Subject to the the jurisdiction thereof’ how does the government claim the authority to deport them ? They’re not under it’s hurisdiction.
Pogo says
@Word of the day: nativism
https://www.google.com/search?q=nativism
Sometimes, less is more.
Laurel says
Maga should start taking field trips and stand in front of the Statue of Liberty, practicing meditation for awhile. They seem to forget what we are all about.
PaulT: The written word of the Constitution appears pretty clear to me, too. Trying to twist it around and convolute it is just more bigotry in robes. We’ll see, and hope they will see beyond their political ideology.
Skibum says
Commendable, but probably wishful thinking. I think a lot of drumph’s maga mush brains prefer to ignore what the Statue of Liberty actually stands for, instead looking at that object in their own demented way as being a symbol of the ultimate decimation of the white race. After all, just like the Trojan horse, they may believe it was a “gift” thrust on our country from foreigners who wanted to invade and take over the country.
I can just see those thoughts spinning around in Steven Miller’s tiny brain.
PaulT says
Laurel: Like most citizens I have very little confidence in the Supremes since while the majority claim to be originalists they behave more like Trump cultists.
As for meditating at the Statue of Liberty, MAGA are descendents of the ‘huddled masses’ but are in denial of their immigrant origins.
So on that field trip they’d more likely form a mob intent on defacing or destroylng the famous Emma Lazarus poem.
And meditation? They wouldn’t dare because, you know. ‘woke’.
Callmeishmael says
I’ve had many discussions with MAGAs over the past few years where I questioned how they can ignore Trump’s overstepping his constitutional authority and still support him, especially when it comes to immigration and domestic use of our military. To a person, every one of them suggested they were okay with it because, well, “Things are different now.”
Say what you will, with MAGA, it was never really about the economy, it was never really about Democrats (of which I am not one) leading us down the road to socialism or communism. It was never about men dressing up as women corrupting our kids. It was never about vaccines. It was never about military conflict overseas. It surely wasn’t about government corruption and waste, considering that spending and debt have INCREASED since Trump took office his second term.
It was ALWAYS about bigotry and racism.
On that point, things haven’t changed at all for many Americans.
BTW: I’m not a Republican either. And there are increasingly millions of people just like me. Y’all party loyalists better start paying attention.
Laurel says
Callmeishmael: Yes, but add to that, bigotry is another tool used to control the masses. So, it’s not 100% about bigotry, it’s about control, and bigotry is used as a means of consolidating a group, then it is easily controlled. Religion is used in the same way.