Birthright Citizenship? I Think It's An Open Question

Manhattan Contrarian ^ | 15 Dec, 2025 | Francis Menton

[MtnClimber]

On his first day in office in his second term, January 20, 2025, President Trump issued a collection of Executive Orders. One of those was number 14160, titled “Protecting the Meaning and Value of American Citizenship.” EO 14160 seeks to do away with the long-standing practice of various U.S. agencies of recognizing U.S. citizenship of anyone born in the United States, even if that person’s parents were not legal residents or otherwise legally in the country at the time of the birth. From EO 14160:

It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person's mother was unlawfully present in the United States and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth, or (2) when that person's mother's presence in the United States was lawful but temporary, and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth.

Following issuance of EO 14160, multiple lawsuits were brought in courts around the country seeking injunctions to compel the government to recognize the citizenship of various individuals born here to illegal aliens. Several courts promptly issued injunctions blocking Trump’s Order, all of them on a nationwide basis as far as I can determine. In June, three of those cases, consolidated under the name Trump v. CASA, came before the Supreme Court on the question of whether a District Court could issue a nationwide injunction to block the Order everywhere. The Supreme Court invalidated the nationwide aspect of the injunctions. However, the Court did not consider the merits of whether President and executive agencies could refuse to recognize citizenship of children born here to illegal aliens.

But now there are petitions before the Supreme Court asking it to consider this question of so-called “birthright” citizenship on the merits. The Court is widely expected to take up the issue in its current term. So, what is the right answer?

In terms of relevant legal text, it all comes down to a few words from Section 1 of the Fourteenth Amendment:

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.

Does that sound open and shut? It all depends on the meaning of the phrase “and subject to the jurisdiction thereof.” If children of illegal aliens are “subject to the jurisdiction” of the United States, as that phrase is interpreted in the context of the 14th Amendment, then they are entitled to citizenship; and if children of illegal aliens are not properly viewed as “subject to the jurisdiction” of the United States, then they are not entitled to citizenship.

Which is right? It turns out that there are some pretty good arguments on both sides. The most often-cited arguments by the contending parties in fact rarely mention the text of the Amendment. On the side of those supporting birthright citizenship, the most oft-cited point is that the federal government has operated for decades as if birthright citizenship were the law, granting status and official documents to anyone who can prove they were born in the country. But then, it is completely fair to ask if there has been a solid basis for that. If some federal agencies were operating outside the law, it would certainly not be the first time. On the other side, opponents of birthright citizenship point to the extreme case of the “anchor baby,” where a pregnant woman crosses the Rio Grande illegally, immediately gives birth, takes pictures, and goes back home. Could it really be that that baby is entitled to show up twenty years later with the pictures as proof and claim all the rights and privileges of U.S. citizenship? (In fact, that has long been the operating basis of U.S. government policy, whether it seems to make sense or not.)

Looking for a credible advocate of the birthright citizenship position to state the basis of the case, I come upon an interview in Harvard Law Today from January 24, 2025 of Harvard Professor Gerald Neuman. The date of the interview was immediately after issuance of Trump’s EO. Not at all to my surprise, Neuman treats the case for birthrate citizenship as obvious, and the views of anyone taking the opposite position as having “either a crazy or a dishonest interpretation of the Constitution” — his words. Here is the gist of Neuman’s argument:

After the Civil War, with slavery abolished, there were now formerly enslaved people and free Black residents who had never been enslaved but hadn’t been considered citizens in their states or by the Supreme Court. To protect them and their children and descendants, Congress passed the Civil Rights Act in 1866 and then put the rule in the Constitution, in the 14th Amendment, that everyone who was born in the United States and subject to the jurisdiction of the United States is a citizen of the United States. By the time this entered the debates in the 1860s, this was an issue not only with regard to Black people, but also with regard to the Chinese who had started coming to the west coast. It was explicitly discussed whether the rule would include the Chinese, and it was clearly decided that, yes, it would apply to people of any race.

Neuman then cites the a Supreme Court case from 1898, United States v. Wong Kim Ark. Mr. Wong had been born in the U.S. to Chinese parents. As a young adult, he made a trip to China, and when he tried to return he was refused entry. The Supreme Court said that Mr. Wong was entitled to re-entry as a citizen. For Neuman, this completely settles the matter.

Are you persuaded? As usual with advocates of the progressive orthodoxy, Professor Neuman has left out a few key things that he hopes you will not be aware of. For me, the most significant point for the other side is the Indian Citizenship Act of 1924. Here is the entire relevant text of that statute:

BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.

That’s right — despite being born in the United States and after ratification of the 14th Amendment in 1870, Indians were not treated as citizens until this Act in 1924. Clearly, the thinking was that their membership of sovereign tribes made them not “subject to the jurisdiction” of the United States within the meaning of the Amendment. So what about today’s illegal aliens makes them significantly different from Indians pre-1924?

Neuman points to the Supreme Court’s 1898 Wong case as if it settles the argument, but that case falls rather far short of bringing his argument all the way home. The Wong case pre-dates almost all restrictions on immigration into the U.S., and there was no assertion that Mr. Wong’s parents were in the country illegally; and thus the case did not address at all the status of children born in the U.S. to illegal aliens.

An example of a commentator making the case against birthright citizenship is Richard Epstein in this piece at the Civitas Institute from January 28, 2025. Here is Epstein on the significance (or lack thereof) of the Wong case:

[The Wong] decision at no point addressed, either explicitly—the word “illegal” is not used in the opinion—or implicitly, the legal status of the children born in the United States of illegal aliens. Rather, that case dealt explicitly with the common situation where the plaintiff was the child of lawful permanent aliens in the United States who had long engaged in a lawful business and were denied the right to become citizens under the Chinese Exclusion statute. The gist of Justice Horace Gray’s opinion was that their son could not be barred from a return to the United States because, as the child of lawful residents, he consistently held and asserted U.S. citizenship from birth, which was rightly awarded as an incentive for these individuals to strengthen their allegiance to this country.

Epstein’s position is that the granting of birthright citizenship to children of illegal aliens creates a perverse incentive structure that incentivizes breaking the law:

[T]he entire civil and criminal law is organized to suppress illegal conduct and to support legal conduct. But the opposite is true with birthright citizenship, which gives a strong spur for illegal conduct.

Epstein concludes:

No one at the time or now has advanced a coherent explanation as to why birthright citizenship is desirable as a matter of principle. So why assume that it was adopted silently through the back door?

So on balance, I regard this as an open question. Given that it is an open question, I regard Epstein’s point about perverse incentives as much more significant than Neuman’s point about longstanding agency practices.

[norwaypinesavage]

Being an engineer by education and experience, I have only occasionally opined on legal matters. I have found that when I do, I’m usually wrong. I believe the reason I’m so often wrong is that I rely on analysis and logic and know nothing about historical precedence. It seems to me that precedence is what determines much of legal findings.

To me, it’s obvious that babies born here to illegal immigrants should have no right to US citizenship. I hope I’m right on this one.

[Gay State Conservative]

Until fairly recently (maybe about 40-50 years ago) many “civilized”,advanced,nations in Europe and elsewhere had birthright citizenship. But one by one they did away with it. As a result there are many countries that have it today but the only civilized ones are the United States and Canada.

[nathanbedford]

The case generally turns on 2 matters: the meaning of the phrase, "and subject to the jurisdiction thereof" and the applicability of United States v. Wong Kim Ark (1898).

Does the phrase, "and subject to the jurisdiction thereof" mean to define jurisdiction in the sense we understand it today, that is, liable to be subjected to the judicial process of the United States or does it have a more obscure meaning that can be mined from the history of the United States and England?

In other words, did the authors who wrote it and those who ratified the amendment in the wake of the Civil War understand the phrase as supporters of the executive order argue? A short answer is that mining the history of the law of citizenship in England and the colonies can be argued on both sides. Therefore, it is more difficult to maintain that a inconclusive and disputed meaning of jurisdiction relating to citizenship in old England that is supportive of the executive order is that which was understood in 1866.

Additionally, there is a problem that "jurisdiction" today and "jurisdiction" then generally meant one's person is liable to brought under American judicial process. If the authors of the amendment has meant a more restricted definition altering common understanding, they presumably would have written the amendment to reflect that understanding. They did not. There is the legislative history, for what it's worth, it says that the intention at the time was to include Chinese citizens, implying a birth rate citizenship interpretation.

On this issue, in view of the legal precedents subsequent to the amendment and administrative understanding and procedures since then, and especially in view of the 1998 Wong Kim Ark decision, advocates for a new understanding from present practice bear a heavy burden of persuasion.

Finally, the president's position requires the Supreme Court to distinguish that case on the basis of the legal or illegal status of the parents of the person claiming citizenship. As cited scholarship has been pointed out, at that time, 1898, there was no distinction in the law between alien and non-alien persons, suggesting that to overturn present practice by a very questionable distinction is not a path eagerly to be pursued by a majority of the court.

Caveat: anyone who presumes to predict the outcome in these cases is likely to look foolish.

[Regulator]

You’re correct.

Worse, Horace Gray essentially reversed himself from his previous citizenship decisions.

It indeed was a “feel good” decision. Probably influenced by the emerging politics of the time.

There are specific points that can be used to reverse Ark, and we don’t have to delve into poorly worded statements by Jacob Howard.

So it’s going to be up to Pope Roberts to thread the needle. But my guess is that he punts to Congress.

[rdcbn1]

The Supreme Court has had recent rulings that narrow the concept of of birth right citizenship

The current interpretation of birthright citizenship is clearly wrong but we have millions of anchor babies who are aproaching middle age so this is a political hot potato.

Unwinding decades of anchor baby abuse of the system may be a political bridge too far for our Supreme Court

However, there are three exceptions to the 14th Amendment as written

The children of foreign diplomats

American Indians

People who enter the country as part of an invasion

[JimRed]

“and subject to the jurisdiction thereof.”

Anyone present in the United States is subject to her laws, with the possible exception of diplomats. Break the law and you can be tried, convicted and punished. That includes immigration laws, for which violations the typical punishment is deportation.

As a public school educated non-lawyer citizen, it seems pretty plain to me. The "fix" would be a few words added to the Constitution at the appropriate spot (an amendment). The phrase "born to persons legally present in the United States" comes to mind but let the lawyers figure that out.

That would not affect those already born here of illegal parents and presumed (rightly or wrongly) to be citizens, as that would be viewed as an ex-post facto law, prohibited under article 1, Section 9.

[jmaroneps37]

The 14th Amendment was adopted for freed slaves to protect from Democrats who had formed the KKK to force them back into slavery; not for the misuse of today’s citizenship tourism.
Only a few countries still use this procedure and we must get out of it.

[Pontiac]

So it’s going to be up to Pope Roberts to thread the needle. But my guess is that he punts to Congress.

You're probably right. It is never easy to do the right thing when you know that by do so that you will incur the hatred of many.

And you know that all on the Left will put on the blinders so as not to see the correctness of the decision.

The Left hates the Constitution and appealing to the hobbles with in it does not cut any ice with them.

[oldbill]

You’re wrong.
Using your logic, anyone in the geographic limits of the United States - tourist, businessman, airborne passenger over Kansas on a Mexico-London flight is subject to the draft, income tax, voting laws, whatever, because just being here means they are subject to ALL laws.

You would make a great SupremeCourt Justice in the manner of Sotomayor, Brown, and Kagan.

[GingisK]

Aside from the perceived problem with interpretation, common sense says that birthright citizenship is a mistake. No other nation in the world practices it.

[Bruce Campbells Chin]

I personally agree that Wong Kim Ark does not answer the question, and I suspect the Supreme Court won't defer to it either.

That being said, the cleanest argument for birthright citizenship was not mentioned at all by this author. That is, that the phrase "and subject to the jurisdiction thereof" was intended to exclude those with diplomatic immunity and their children. Because they are literally not subject to the jurisdiction of the U.S. government.

If you want to end birthright citizenship without amending the Constitution, change US law to say that illegal aliens are not subject to the jurisdiction of the United States.

[Bruce Campbells Chin]

Using your logic, anyone in the geographic limits of the United States - tourist, businessman, airborne passenger over Kansas on a Mexico-London flight is subject to the draft, income tax, voting laws, whatever, because just being here means they are subject to ALL laws.

All of those people are subject to the criminal laws of the United States. I'm not sure how the draft got dragged into this, but that is a disingenuous argument. Females are not subject to the draft in this country, so by this logic, females are not subject to the jurisdiction of the United States. That's just a ridiculous argument.

[Bruce Campbells Chin]

Whether or not birthright citizenship makes sense to us, or is good policy, is irrelevant. As is whether or not any other country in the world chooses to practice it.

What matters is the text of the amendment, and the common meaning of those words at the time. Whether we like that result or not isn't the issue.

[GingisK]

Whether we like that result or not isn't the issue.

Then fix the amendment to clarify how the Nation is supposed to operate. Only an abject fool would endorse birthright citizenship.

[Bruce Campbells Chin]

Anyone present in the United States is subject to her laws, with the possible exception of diplomats. Break the law and you can be tried, convicted and punished. That includes immigration laws, for which violations the typical punishment is deportation.

As a public school educated non-lawyer citizen, it seems pretty plain to me.

And as a 30 year lawyer, I agree. The plain language of the Amendment may not have the result the drafters and ratifiers anticipated, but it is nevertheless clear in the context of that time.

The key issue is what the phrase "and subject to the jurisdiction thereof" would have meant at the time. Who was it intended to exclude? At the time the amendment was drafted and ratified, the United States had no immigration laws at all. Therefore, the phrase could not have been intended to exclude only immigrants who were in this country "illegally" because that concept didn't even exist at that time.

So the real question is - what was the intent of the 14th Amendment with respect to the millions of immigrants then in this country? Because surely, the drafters and ratifiers of the amendment were aware of those millions of immigrants, and the fact that they were having children.

Nobody would have considered for a moment that all those immigrants present in the US at the time of the amendment were not subject to the jurisdiction thereof". A great many of them had served in the US military, and were fully subject to all of our laws. So that exclusion clearly did not apply to them.

The one thing recognized by everyone at that time was that those with diplomatic immunity, which was a concept with which they all were very familiar, were not subject to the jurisdiction of the host country. They were in fact formal representatives of another sovereign state - not just random citizens of another state. And those were the people excluded by the 14th Amendment.

I think it is a complete strain of logic to argue that an amendment intended to apply only to freed slaves would not have said just that. That interpretation also would have provided to slaves and their children greater rights than many other immigrants in this country who had served in the US military during the civil War. The slaves get automatic citizenship, but free white people don't? Seriously? Doesn't anyone think there would have been an outcry on the part of all the white people excluded from that grant of citizenship?

Personally, I think birthright citizenship for illegal aliens is an awful idea. And I think if we could have asked the framers of that amendment, they would agree. The problem is we are stuck with the plane meaning of the words that they drafted, good or bad. If we don't like the interpretation attached to the words they wrote, the solution isn't to try to read their minds and re-word the amendment so that it means what we think they would have wanted. It is to amend the amendment.

Or, pass a law stating that illegal immigrants are not subject to the jurisdiction in the United States. That would work also.

[Bruce Campbells Chin]

I 100% endorse passing an Amendment to say that the children of those present in this country illegally do not get citizenship.

Hell, I would support a Constitutional Amendment stating that any person who enters this country illegally is permanently ineligible for US citizenship, regardless of any subsequent laws Congress may choose to pass.

[yuleeyahoo]

The only way birth right citizenship will be ended is to set a date and state that all born before then are citizens and those born after are not. Too many people have been born here in the last 60 or so years to strip their citizenship.

[masadaman]

Let’s not forget the Wong Kim Ark decision has been used to also justify the historical meaning of ‘natural born citizen’ such that Mr. Ark would be able to become President.

[Vermont Lt]

The interesting thing I learned about the Wong case is that just about everyone involved said that the Wongs—here legally—would have become citizens, but they were not allowed to by the various anti-China acts of the mid to late 1800s.

So, they were clearly here legally and subjected themselves to the US Jurisdiction. I am pretty sure more people would agree with birthright citizenship in that case.

The BIG difference is that the current case deals with people who are not here legally—especially those who have been here for a while and could have applied for citizenship or legal residency.

I have a feeling that the decision on this will just piss off everyone.

[1FreeAmerican]

Menton does tell us that the Indian Citizen Act of 1924 did bring the Native American into citizenship, but he not does tell us why it was that they were not citizens after the 14th was ratified, and that reason was because Tribal Nations were NOT “subject to the jurisdiction” and DIDN'T want to be. The phrase "subject to the jurisdiction" was added to insulate the Tribal Nations from being absorbed by the 14th.