Birthright citizenship in the United States

Based on Wikipedia: Birthright citizenship in the United States

In 1857, the Supreme Court of the United States declared that Dred Scott—a man who had been enslaved, taken to free territories, and returned to a slave state—could never be a citizen. Not because of where he was born, but because of who he was. Chief Justice Roger Taney wrote that Black Americans "had no rights which the white man was bound to respect."

Eleven years later, the country amended its Constitution to make sure that could never happen again.

The Fourteenth Amendment, ratified in 1868, contains what lawyers call the Citizenship Clause. It reads: "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."

Those thirty words were meant to be a permanent answer to a question that had torn the nation apart. They established what's known as birthright citizenship—the principle that being born on American soil makes you an American, full stop.

Today, that principle is under attack once more.

Two Kinds of Birthright

Before we go further, we need to understand two Latin phrases that lawyers love and everyone else finds confusing.

The first is jus soli, which means "right of the soil." If you're born on American territory, you're an American. The dirt beneath the delivery room matters.

The second is jus sanguinis, meaning "right of blood." If your parents are American, you can be American too, even if you're born in Paris or Tokyo or on a ship in international waters.

The United States recognizes both. Most countries choose one or the other, or use complicated combinations of the two. Germany, for instance, traditionally emphasized blood ties—you were German if your parents were German, regardless of where you happened to be born. France has swung back and forth between the two systems over its history, depending on whether it wanted to expand or restrict who counted as French.

The American system, with its emphasis on birthplace, was radical for its time. It said that nationality wasn't about ancestry or ethnicity or religion. It was about geography and, by extension, a commitment to a set of ideas.

Or at least, that was the theory.

The History They Wrote the Amendment to Erase

The Citizenship Clause didn't emerge from abstract philosophical debate. It emerged from the specific, brutal history of American slavery.

Before the Civil War, the legal status of Black Americans was a patchwork of confusion and cruelty. Some states considered free Black people to be citizens with certain rights. Others didn't. The federal government had never clearly stated whether Black Americans—even those who were free, even those whose families had been free for generations—were actually citizens of the nation.

The Dred Scott decision settled the question in the worst possible way. The Supreme Court didn't just rule that Scott himself couldn't sue for his freedom. It declared that no person of African descent, whether enslaved or free, could ever be a citizen of the United States. The Constitution, Taney wrote, had never intended to include them.

The Civil War followed. Slavery ended. And the Reconstruction Congress set about trying to make the nation live up to what it had always claimed to be.

The Civil Rights Act of 1866 declared that all persons born in the United States were citizens. But laws can be repealed. A constitutional amendment is harder to undo.

Senator Jacob Howard of Michigan, who introduced the citizenship language to the Fourteenth Amendment, was explicit about what it meant. It would, he said, "settle the great question of citizenship" and remove all doubt that everyone born in America—"even of aliens," he specified—would be citizens by birth.

The framers of the amendment knew exactly what they were doing. They had watched the Supreme Court twist the Constitution to exclude an entire race. They wrote the Citizenship Clause to make that kind of exclusion impossible.

The Phrase That Lawyers Love to Fight About

Notice, though, that the Citizenship Clause doesn't just say "all persons born in the United States." It adds a qualifier: "and subject to the jurisdiction thereof."

What does that mean?

At the time of the amendment's drafting, the answer seemed obvious. There were two groups of people who might be born on American soil but not be "subject to the jurisdiction" of the United States: the children of foreign diplomats, and the children of enemy soldiers occupying American territory during wartime.

Diplomats are a special case under international law. They're physically present in a country, but they're not subject to its laws in the normal way. If the French ambassador's child is born in Washington, that child is born under French jurisdiction, not American. This is why diplomatic immunity exists—ambassadors can't be arrested for parking tickets, and their children aren't automatically American.

Enemy soldiers were the other exception. If a foreign army occupied Philadelphia—as British forces actually did during the Revolutionary War—babies born to those soldiers wouldn't be American citizens. They'd be born under the jurisdiction of the occupying power.

These were narrow, specific exceptions. For everyone else—including the children of immigrants, tourists, and visitors—birth on American soil meant American citizenship.

But over time, some have tried to read the "jurisdiction" requirement much more broadly. They argue it should exclude anyone whose parents weren't legally present in the country, or anyone whose parents owed allegiance to a foreign nation, or various other categories of people the original drafters never mentioned.

The Case of Wong Kim Ark

In 1898, the Supreme Court settled the question. Or at least, it thought it did.

Wong Kim Ark was born in San Francisco in 1873. His parents were Chinese immigrants who, under the laws of the time, were not allowed to become naturalized American citizens. The Chinese Exclusion Act, passed in 1882, barred Chinese laborers from entering the country and prohibited Chinese people already here from naturalizing.

When Wong Kim Ark returned from a trip to China in 1895, the government denied him entry, claiming he wasn't a citizen.

The case went to the Supreme Court. And the Court, in a 6-2 decision, ruled that Wong Kim Ark was indeed an American citizen. He had been born in the United States. He was subject to its jurisdiction. The Fourteenth Amendment's language was clear.

The decision specifically rejected the argument that the children of foreigners weren't really "subject to the jurisdiction" of the United States. The Court traced the legal principle back to English common law, which had established centuries earlier that birth within a nation's territory created citizenship, regardless of the parents' nationality.

"The fundamental principle of the common law with regard to English nationality was birth within the allegiance," the Court wrote. The Fourteenth Amendment had adopted this principle, making it the supreme law of the land.

This has been the law of the United States for more than 125 years.

The People the Amendment Forgot

But the story isn't quite that simple. Because even after the Fourteenth Amendment, and even after Wong Kim Ark, there were still people born on American soil who weren't considered American citizens.

Native Americans were the most glaring example.

The logic—if you can call it that—was that tribal nations were separate sovereigns. Indigenous people born on reservations were members of their tribes first and foremost. They weren't "subject to the jurisdiction" of the United States in the way the Fourteenth Amendment required.

This was, to put it mildly, a convenient interpretation. The federal government had spent decades subjugating Native peoples, forcing them onto reservations, and exercising enormous control over their lives. To then claim they weren't under federal jurisdiction was absurd.

It took until 1924—more than half a century after the Fourteenth Amendment—for Congress to pass the Indian Citizenship Act and finally declare all Native Americans born in the United States to be citizens. Even then, some states continued to deny them the right to vote for decades afterward.

The Territories: Citizens, Nationals, and Everything In Between

If you're born in Iowa, you're an American citizen. If you're born in Puerto Rico, you're also an American citizen. But if you're born in American Samoa, you're an American national—which means you owe allegiance to the United States and carry an American passport, but you can't vote in federal elections even if you move to one of the fifty states, and you have to go through the same naturalization process as any foreign immigrant to become a full citizen.

Why? The answer involves a series of early twentieth-century Supreme Court cases called the Insular Cases, a lot of racial anxiety about the people living in territories the United States had recently acquired, and legal distinctions that most scholars today consider embarrassingly incoherent.

The basic framework goes like this: the Constitution fully applies to "incorporated" territories that are on the path to statehood, but only partially applies to "unincorporated" territories that Congress has decided to keep in a permanent limbo.

Puerto Rico was ceded to the United States after the Spanish-American War in 1898. Congress granted Puerto Ricans citizenship in 1917, partly because the military wanted to draft them for World War I. Guam, the Virgin Islands, and the Northern Mariana Islands all eventually received similar grants of citizenship by statute.

American Samoa never did.

The approximately 55,000 people who live in American Samoa are born on American soil, governed by American laws, and yet they are not American citizens at birth. When they travel abroad, their passports say "The bearer is a United States national and not a United States citizen."

Courts have upheld this arrangement, ruling that American Samoa is not "in the United States" for purposes of the Fourteenth Amendment. The Supreme Court has repeatedly declined to take up the question, leaving American Samoans in constitutional limbo.

Interestingly, the elected government of American Samoa has generally opposed citizenship, fearing it might threaten traditional communal land ownership systems that restrict property rights to people of Samoan ancestry. These systems would likely face constitutional challenges if the Fourteenth Amendment fully applied.

Citizenship by Blood

Not all American citizens are born on American soil. If your parents are American, you can be American too, even if you're born abroad.

This has been true since the very first naturalization law Congress passed in 1790. But the rules have always been complicated, and they've changed many times over the centuries.

For most of American history, citizenship passed primarily through fathers. A child born abroad to an American father and a foreign mother was American. A child born abroad to an American mother and a foreign father was not.

This was part of a broader legal framework in which women's citizenship was tied to their husbands'. A woman who married a foreign man could lose her American citizenship entirely. A foreign woman who married an American man could gain citizenship through her husband.

These rules began to change in the twentieth century. Congress granted mothers the ability to pass citizenship to their foreign-born children in 1934, though with various restrictions. The rules have been updated repeatedly since then, with requirements about how long the citizen parent must have lived in the United States before the child's birth.

Currently, if both parents are citizens, citizenship passes to a child born abroad as long as at least one parent lived in the United States at some point before the birth. If only one parent is a citizen, that parent must have been physically present in the United States for at least five years, with at least two of those years coming after their fourteenth birthday.

The rules for children born to unmarried parents are even more complicated, and they differ depending on whether the citizen parent is the mother or the father. Unmarried citizen mothers need only have lived in the United States for one year to pass citizenship to their children. Unmarried citizen fathers face additional requirements, including establishing paternity before the child turns eighteen.

These gender distinctions have been challenged in court. The Supreme Court has upheld them, reasoning that mothers have an automatic biological connection to their children that fathers do not.

The Children Left Behind

The stricter rules for unmarried fathers have created tragic situations.

During the Korean and Vietnam Wars, American servicemen fathered thousands of children with local women. Many of these fathers never knew they had children. Others knew but never formalized paternity. Decades later, some of these children—now adults—have tried to claim American citizenship based on their parentage.

Under the law, they can't. If paternity wasn't established before they turned eighteen, they're out of luck. It doesn't matter if DNA tests prove beyond any doubt who their father was. It doesn't matter if they were raised in the United States from infancy. The deadline is the deadline.

There have been cases where men were brought to America as babies, raised by their American fathers, lived their entire lives as Americans, and then discovered in their twenties that they had never actually been citizens. Some have been deported to countries they had never seen, whose languages they didn't speak, because paperwork that should have been filed decades ago never was.

Congress wrote these rules deliberately. They were worried about exactly this scenario—a "flood" of children from overseas wars claiming American citizenship. The cold logic of immigration restriction won out over any concern for the human beings caught in the system.

The Current Controversy

For most of American history, birthright citizenship under the Fourteenth Amendment wasn't particularly controversial. Children born in the United States were Americans. That was the rule.

Starting in the 1990s, a movement emerged to change this. The argument went like this: the Fourteenth Amendment's "subject to the jurisdiction" language was never meant to include the children of people who were in the country illegally. Those children, the argument claimed, should not receive automatic citizenship.

Legally, this argument has been rejected by most scholars and by every court to consider it. The Fourteenth Amendment's framers discussed the "jurisdiction" requirement extensively, and they consistently described it in terms of the traditional exceptions—diplomats and occupying armies—not in terms of immigration status, which barely existed as a legal concept at the time.

But the legal argument has found political support. Several Republican candidates for president have endorsed changing or reinterpreting birthright citizenship. The most prominent has been Donald Trump, who made opposition to birthright citizenship for the children of undocumented immigrants a consistent theme of his campaigns.

In January 2025, shortly after beginning his second term, Trump signed an executive order directing federal agencies to stop recognizing birthright citizenship for children born to parents who were in the country illegally or on temporary visas. The order claimed that such children were not truly "subject to the jurisdiction" of the United States.

Multiple federal courts immediately blocked the order. Judges appointed by presidents of both parties described the order as clearly unconstitutional, in direct conflict with Wong Kim Ark and more than a century of settled law.

The legal challenges continue.

Why It Matters

Birthright citizenship isn't just a legal technicality. It's a statement about what kind of nation America is.

Under a pure blood-based system, nationality becomes inherited, like property or noble titles. You are what your parents were. Your family's history defines your future. This is how most of the world worked for most of human history, and how much of it still works today.

Birthright citizenship based on soil offers a different vision. It says that where you're born matters more than who your parents are. It creates a path by which each generation starts fresh, unburdened by whatever legal status their parents held. It makes citizenship about presence and participation rather than ancestry and inheritance.

There are practical implications too. Without birthright citizenship, the United States would have to develop some other way of determining who qualifies as a citizen. Countries that rely primarily on blood-based citizenship often end up with large populations of permanent non-citizens—people born in the country, raised in the country, speaking no other language and knowing no other home, but legally foreign.

Germany grappled with exactly this problem for decades. Guest workers invited in the 1960s had children, and those children had children, and by the third generation there were people who had never set foot outside Germany but still weren't German citizens. Germany eventually reformed its citizenship laws to include birthright provisions, recognizing that the old system had created an untenable situation.

The Fourteenth Amendment's Promise

The Citizenship Clause was written in the shadow of Dred Scott, designed specifically to prevent the government from ever again declaring that an entire class of people born on American soil couldn't be Americans.

Its authors understood something important: that citizenship, once granted, is hard to take away, but citizenship that depends on government approval can be revoked at will. They wanted to create an automatic rule, one that didn't require any bureaucrat's permission or any court's blessing. Born here, citizen here. Simple. Permanent. Constitutional.

Whether that promise survives the current political moment remains to be seen. Courts have so far upheld it. But the challenge is real, the political will to restrict citizenship is genuine, and the question of who gets to be American is once again the subject of bitter national dispute.

It's worth remembering that we've been here before. The question of birthright citizenship was supposed to have been settled in 1868. It was supposed to have been settled again in 1898. Each time, the principle that birth on American soil creates American citizenship has survived.

Whether it survives again is now up to the courts—and ultimately, to the people.