Birthright Citizenship*
Does the Constitution mandate birthright citizenship for anyone born in the United States? Or are the boundaries of citizenship a decision to be made through majority rule?
“Citizenship is man’s basic right, for it is nothing less than the right to have rights.”
(Chief Justice Earl Warren dissenting in Perez v. Brownell 1958)
Does the Constitution mandate birthright citizenship?
Is the debate settled beyond discussion?
I think the answer to the first question is No. I’m sure the answer to the second question is also No.
There is a meaningful debate, in which Americans should engage. This essay attempts to describe both sides of the debate accurately, while also offering my own view of the Constitution’s meaning.
Citizenship
In 1986, the U.S. government searched the house of a Mexican drug lord who had been arrested for the torture and murder of an American DEA agent. The defendant was not a U.S. citizen, and his house was not in the United States. The U.S. agents searched it without a warrant. If the drug lord had been a U.S. citizen residing in the United States, the court would have thrown out the evidence from the search as a violation of the Fourth Amendment. But do non-citizens outside of the United States have the same protections?
Opinions differed, and the decision went 6-3 at the Supreme Court. Six Justices ruled that protections against warrantless searches do not apply to non-citizens in a foreign country. Three Justices (Blackmun, Brennan, and Marshall) said the Fourth Amendment applies to all actions of American government, not just those affecting citizens.
The case (U.S. v. Verdugo-Urquidez 1990) led to a discussion of the nature of citizenship:
“The people” seems to have been a term of art employed in select parts of the Constitution. ...“the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
Who exactly is included in the “national community”—and who is not—can be unclear. Who has the power to define the community, and how do we determine if someone has been accepted into it?
In a 2018 interview during his first administration, President Trump said that “we’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years... with all of those benefits. It’s ridiculous. And it has to end.”1 Trump was exaggerating, as several other nations offer birthright citizenship, though most European countries do not.2
The debate in the United States reflects several deeply disputed policy choices: the border wall, sanctuary cities, costly social services for recent arrivals, and deportation of unauthorized immigrants. The core of the controversy is the origin of citizenship itself. Simply put, does the Constitution mandate birthright citizenship for anyone born in the United States? Or are the boundaries of citizenship a decision to be made through majority rule?
On the first day of his second administration (20 January 2025), President Trump issued an executive order essentially ending birthright citizenship. The text of the order curtails the practice of issuing citizenship documents to children whose parents were in the United States illegally or only temporarily:
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.
The Executive Order targets the citizenship of those born on U.S. soil to parents here illegally, but it also ends the practice of birth tourism, or foreign nationals coming to the United States for the birth of a child to establish citizenship.3
It is important to note that children of lawful permanent residents (Green Card holders) will still be U.S. citizens. And the denial of citizenship to the new categories of residents applies only after the Executive Order was in place, which means that those granted citizenship in earlier time periods will still be recognized as U.S. citizens. The Order changes future policy, but is not retroactive.
The Order describes citizenship as “a priceless and profound gift.” Note that a gift is not a right; it is a decision of current citizens, through our representative system, to grant that status to others.
The Executive Order claims to be squarely within the meaning of the Constitution and federal law as they describe how that gift is granted and limited. After all, the President cannot alter the law unilaterally, but can only exercise his power of implementing existing law, through the “executive power” (Article II, Section 1) and his obligation to “take Care that the Laws be faithfully executed” (Article II, Section 3).
The core question is whether the new policy of the United States fits within the bounds of the Constitution. The executive order will be challenged and likely the Supreme Court will make a ruling.
To explain the controversy, we should start with the competing foundations of citizenship and perhaps end with the long-running debate about ways of reading the Constitution.
The nature of citizenship: Blood versus soil
In different societies and legal traditions, the source of citizenship varies. There are natural-born citizens and naturalized citizens. To be a natural born citizen means that one is a citizen at birth. A naturalized citizen, on the other hand, gains that status based on certain requirements and becomes a citizen at a later point in their life.
One of the powers of Congress in Article I §8 is “To establish a uniform rule of naturalization.” This provision removes the power from individual States to enact separate naturalization rules, and establishes Congress as the arbiter of a national standard for acquired citizenship.
The Constitution invokes the concept of natural citizenship in the qualifications for the presidency:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States. (Article II, §1)
Natural-born citizenship can be based on land or on blood. The concept of jus soli—“right of the soil”—indicates citizenship grounded in where one is born; jus sanguinis—“right of the blood”— indicates citizenship based on one’s parents, regardless of the location of birth.
Most nations follow citizenship rules most closely aligned with jus sanguinis and blood ties to the people (parentage is what counts); someone born in Germany, or France, or Russia, or Korea is not a citizen of that nation unless their parents were. The U.S. tradition—as a relatively young and immigrant nation—has been generous by international standards and grounded in both traditions.
The children of Americans are Americans, regardless of location, and people born here have been Americans, regardless of parentage.
The major discussion of citizenship in the Constitution is found in the first sentence 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.
The context of the Amendment (ratified in 1868) was the post-Civil War movement to eradicate slavery and ensure the legitimate legal treatment of those formerly enslaved. The Amendment opens by declaring everyone who had been born in U.S. territory to be a citizen of both the Nation and of their State as a means to make it clear that former slaves were citizens. The infamous Dred Scott decision in 1857 had declared that blacks were not citizens, and the Fourteenth Amendment reverses this ruling with clarity. The language, however, is more universal, referring to “all persons.” The original application of the new principle may have been the citizenship of ex-slaves and their progeny, but the future ramifications may be much broader. At first glance, the language seems to follow jus soli and establish the right of natural born citizenship for anyone born in the USA.
“Subject to the jurisdiction thereof”
However, it is not as simple as a quick reading of the Fourteenth Amendment. The first sentence of the Amendment also includes the limiting clause “and subject to the jurisdiction thereof.” This clause is easy to read past and ignore because it is not a common turn of phrase. Nonetheless, each part of the Constitution has meaning and cannot simply be redundant or superfluous, so we must address the meaning of this limitation.
Federal law (the U.S. Code) employs the same phrase: “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof” (8 U.S. Code § 1401).
If “subject to the jurisdiction” simply meant “in the geographical jurisdiction,” i.e., in the United States, then the clause would be redundant. It cannot simply be repeating the first part of the sentence (“all persons born in the United States and in the United States”). All persons born in the United States were also obviously at that time inside the United States. The meaning of the phrase must be something more than merely present within the borders.
“Subject to the jurisdiction” of the United States, in the context of citizenship, seems to mean at least “not subject to a foreign power” (i.e., not the national of another country). The Civil Rights Act of 1866 (passed by the same Congress which wrote the Fourteenth Amendment) employs that language: “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
In this sense, “under the jurisdiction” means under the sovereignty—the legitimate recognized protection and authority—of the United States rather than another nation. To be “under the jurisdiction” does not mean merely present on the soil and subject to involuntary enforcement of some laws if caught violating them, but instead means recognized by both parties as living in a voluntary relationship with the national community. The phrase describes an established reciprocal relationship between the person and the government: the nation has agreed that a person is under its sovereignty and protection, and the person has agreed to owe allegiance to the nation and live under its sovereignty.
To examine the first side of that relationship, the U.S. government has clearly not accepted unauthorized immigrants as being under its sovereignty. To say that a person becomes “subject to the jurisdiction” of a nation against its laws and wishes—by the force of will of that person and against the will of the nation—seems odd. In Elk v. Wilkins in 1884 the Court describes “the principle that no one can become a citizen of a nation without its consent.” If we begin with the Declaration’s insistence on the consent of the governed, it would seem that a nation’s citizens hold the power to decide collectively on the boundaries of national membership, without being forced to abandon their own consent to such a core aspect of sovereignty.
From the other side of the relationship, the question would be if the immigrant has agreed to be under the sovereignty and control of the United States. If a person is intentionally hiding from the awareness of the national government, it is hard to argue that the person has voluntarily acceded to its sovereignty.
In these senses there is an argument that unauthorized immigrants are not subject to the jurisdiction of the United States as described by the Fourteenth Amendment, which identifies that relationship as a condition of natural born citizenship. To be “subject to the jurisdiction,” a person must voluntarily place themselves under U.S. laws (and not the sovereignty of any other country) and have been accepted by the United States as living under the jurisdiction of the nation.4
In the Slaughter-House Cases (1873) directly after the passage of the Fourteenth Amendment, the Court gave an initial interpretation supporting this restriction: “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” (italics added)
A decade later, the case of Elk v. Wilkins provides further indication of how contemporary readers of the Fourteenth Amendment understood it. As the Court described the facts of the case, John Elk “was born a member of one of the Indian tribes within the limits of the United States, which still exists and is recognized as a tribe by the government of the United States.” The core question was whether Elk, “is, merely by reason of his birth within the United States... a citizen of the United States, within the meaning of the first section of the Fourteenth Amendment of the Constitution.” The Court’s answer was No.
The ruling provided a clear legal definition of the tribes within the United States:
The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal... The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States.
On the meaning of the Fourteenth Amendment, the Court ruled:
The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been difference of opinion throughout the country and in this court, as to the citizenship of free negroes; and to put it beyond all doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the State in which they reside.
On the meaning of “subject to the jurisdiction”:
The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them complete and immediate allegiance. It is also worthy of remark, that the language used, about the same time, by the very same Congress which framed the Fourteenth Amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.”
The section of the Fourteenth Amendment dealing with political representation in elections also raises doubt about the universal nature of citizenship under the Amendment. The text explicitly excludes native members of tribes: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” If some native born groups are excluded from representation, then citizenship was not intended to be a universal principle. There was one dissent in Elk v. Wilkins: Justice John Marshall Harlan argued that natives who are taxed have gained citizenship under the Fourteenth Amendment and other federal laws (which were intended to encourage natives to give up tribal citizenship and gain U.S. citizenship). He wrote:
Born, therefore, in the territory under the dominion, and within the jurisdictional limits of the United States, plaintiff has acquired, as was his undoubted right, a residence in one of the States, with her consent, and is subject to taxation and to all other burdens imposed by her upon residents of every race.
Justice Harlan’s analysis rests on Elk having taken up residence with the official consent of the government, again suggesting that unauthorized residents are not covered by the Citizenship Clause.
The inclusive reading of the Fourteenth Amendment
If the Amendment establishes a broad vision of American citizenship, enacting the principle of jus soli and establishing the right of natural born citizenship for anyone born on U.S. soil, what is the meaning of “under the jurisdiction thereof”? The phrase must mean something, must potentially exclude someone, or it would have no purpose or reason to be included.
One possibility is that it applies to foreign diplomats in the United States. Ambassadors and other foreign dignitaries are specifically representing and serving a foreign power, and hence are not only non-citizens, but may be directly opposed to the interests of American citizens. The inclusion of the clause could be meant to exclude from automatic citizenship any children they may have while in the United States. (This would not apply to an ambassador having a child with an American citizen, as U.S. citizenship would pass from that person; the exclusion would only apply to a child born of a diplomat and for example their foreign spouse.)
Another intended exclusion may be foreign soldiers during a time of occupation. If invading soldiers had children, that would be another example of persons clearly under the jurisdiction of a foreign power. Again, the exclusion from citizenship would not apply if the mother were an American citizen, but would only apply to the child of two invaders. (At the time of the Fourteenth Amendment, professional armies included what were known as camp followers, or civilians who were the wives, mistresses, prostitutes, or domestic workers accompanying the army.)
John Yoo, a noted constitutional scholar, wrote an article supporting this view of the textual meaning right after the Trump administration’s announcement in January 2025. He argues that “These categories included foreign diplomats and enemy soldiers occupying US territory during war. International law grants them immunity from applying to them that nation’s domestic laws when present on the soil of another nation.” I mention Yoo in particular because he is a conservative and an originalist.5 He is arguing that the original public meaning of the clause is this narrow band of exclusions. In this view, the citizenship rule is broad and the exceptions identified by the text are narrow.6
For this to be the full original public meaning, we have to accept that these two small exceptions were the point of including the clause. The exceptions seem quite narrow: the number of children born to diplomatic couples while in the United States would be vanishingly small. And if invading armies were here long enough to have many children, we would have much greater problems. It seems odd to argue that those small exceptions were the point, though some scholars make exactly that argument.
Yoo also argues that the inclusion of “under the jurisdiction thereof” could have been meant to underline the Amendment’s clear exclusion of American Indians who were under the sovereignty of a tribe rather than the U.S. government:
A third important category demonstrates that “subject to the jurisdiction thereof” was no mere surplusage. American Indians residing on tribal lands were not subject to U.S. jurisdiction. From the Founding to Reconstruction, the Indian tribes exercised considerable sovereignty free from federal law—they had never benefitted (or suffered) under the rule of birthright citizenship. Once the federal government reduced tribal sovereignty in the late 19th and early 20th centuries, it extended birthright citizenship to Indians in 1924.
I would have thought that the Amendment’s treatment of natives supported the other side of the argument: the exclusion of American Indians from automatic citizenship because they were under thevsovereignty of a separate government suggests that other persons also under a separate sovereignvwould also be excluded under the same principle.
Another argument supporting birthright citizenship is that the Fourteenth Amendment’s emphasis on persons (“All persons born or naturalized in the United States”) means that it should be understood to apply to the child as an independent person, without regard to the parents.7 In this view, any child born on U.S. soil is clearly a citizen because the Amendment speaks of individual persons as citizens, and we don’t believe that personhood depends on any specific kind of parentage. Individuals are judged on their own.
I don’t see how this can be the meaning of the Amendment. If this were case, then the limiting clause would make no sense. Even the narrow exception of the children of diplomats as the meaning of “under the jurisdiction” could not exclude citizenship if only the child were considered. A diplomat’s child as an independent person would not be encumbered by the parent’s status any more than the child of an immigrant here illegally would be. Whether one likes it or not, citizenship is at least in part grounded in parentage as well as place. The child of an American citizen, if born elsewhere, is still a natural born citizen by blood rather than soil. Parentage also counts.
To argue that the Constitution insists on only considering the child as an independent person would mean that no exception could be contemplated, making the limiting clause as well as the exclusion of Native Americans nonsensical. Clearly that isn’t a possible way of making sense of the Amendment.
I think the best arguments supporting the Fourteenth Amendment’s establishment of birthright citizenship are actually grounded in three core propositions: tradition, pragmatism, and most importantly a living Constitution.
One core argument is that birthright citizenship has been accepted in law and practice for almost the entire history of the United States. Simply put, it is too late to change it. In another article on the subject (“Settled Law: Birthright Citizenship and the Fourteenth Amendment”), Yoo concludes that to change things now would unsettle “centuries of American tradition.” Whether we accept the argument that longstanding interpretations must be maintained, or alternatively the argument that the actual meaning of the text must be followed even if it has been neglected over time, depends on our view of the competing values of settled expectations versus constitutional fidelity.
A second argument focuses on the pragmatic consequences of the dissolution of birthright citizenship. Garrett Epps is a strong proponent of this position: “it would create a shadow population of American-born people” with no protection, stateless and unable to prosper.8 This is fundamentally an argument about consequences rather than textual meaning, eliding the question of who has legitimate control over decisions on citizenship within our system. In this view, the consequences of eliminating birthright citizenship are simply too negative for such a meaning of the Constitution to be acceptable.
The pragmatic focus on consequences is akin to the third argument, which focuses on an evolving, living Constitution. Like many other constitutional debates, how we analyze the question of birthright citizenship is deeply influenced by whether we choose an original or a living reading of the document.
An original reading of the Citizenship Clause is influenced by the Civil War context and its focus on altering race relations between blacks and whites. The original meaning seems to be establishing the citizenship (and hence the recognized rights and equality) of black Americans, but not making a universal statement about citizenship and immigration. This reading is bolstered by the exclusion of Native Americans in the Amendment itself. If Natives born in the United States are excluded due to their primary allegiance to another government, then this does not seem to suggest a universal principle of citizenship. The original public meaning of the Citizenship Clause and “subject to the jurisdiction thereof” would seem to be mutually agreed acceptance of allegiance and sovereignty, which would seem to exclude unauthorized immigrants.
A living reading of the same words suggests that the principle of birthright citizenship has grown and expanded over time as Americans have embraced a more inclusive society. In this sense, the Fourteenth Amendment altered not only the historical status of blacks, but also all other races and groups. The Equal Protection Clause interacts with the Citizenship Clause to insist that it be applied to all groups (which now includes Native Americans). All individuals born in the United States must be treated equally, so all are equally subject to the jurisdiction or political protection of the U.S. government. The broad or inclusive reading of the Citizenship Clause is supported by the narrow version of the original exceptions, by tradition, and by an appeal to negative consequences, but it is more firmly grounded in an appeal to a living Constitution.
Cases
The landmark cases on citizenship address two facets of the concept: how is citizenship gained and how is it lost? The question of origins was taken up in Wong Kim Ark in 1898, and the second question about possible termination was addressed in Trop v. Dulles in 1958.
United States v. Wong Kim Ark (1898) 6-2
Under the Chinese Exclusion Act of 1882 (which restricted the entry of Chinese nationals), Wong Kim Ark was denied re-entry into the country after visiting China. However, Wong (his family name) was born in San Francisco in 1873, to Chinese parents who were permanent legal residents, and he claimed birthright American citizenship which would allow him entry.
Was Wong a natural born citizen under the Fourteenth Amendment?
The Court ruled Yes (6-2).
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, “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.”
Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are “subject to the jurisdiction thereof,” in the same sense as all other aliens residing in the United States.
Does this mean that children of unauthorized immigrants hold birthright citizenship?
In one sense, Yes: the decision endorses birthright citizenship for Wong.
In another sense, No: the ruling applies to legal permanent residents who are “permitted by the United States to reside here,” but that may not include people who are here without permission or recognition by the government.
Wong Kim Ark could mean that A) the child of any resident holds natural citizenship, endorsing the broad principle of birthright citizenship, or B) that only the child of a legal resident holds natural citizenship (because the parents were voluntarily and officially “under the jurisdiction thereof”), implying that the children of unauthorized residents do not fall into this category. Opinions differ deeply.
Trop v. Dulles (1958) 5-4
During World War II, Private Albert Trop deserted while serving in North Africa. Desertion in time of war is a serious crime. Trop was court-martialed and sentenced to three years at hard labor (breaking big rocks into small rocks). After serving his sentence, he was dishonorably discharged from the Army. Under the Nationality Act of 1940, desertion and a dishonorable discharge also resulted in losing U.S. citizenship. In essence, such behavior was deemed by Congress to be grounds for no longer being a member of the national community. Trop later applied for a passport but was denied as a non-citizen.
The Court overturned the stripping of his citizenship on the grounds that it violated the prohibition against cruel and unusual punishment under the Eight Amendment.
Chief Justice Earl Warren wrote that loss of citizenship was equivalent to “the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself.”
Four of the Justices disagreed, noting that “desertion was an offense that, when committed in wartime, was punishable by death,” which is permitted under the Eight Amendment. “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?”
The ruling is also important as the source of a frequently quoted phrase in defense of a living Constitution, seen as a document which “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”9
Conclusion
Like many constitutional questions, what we conclude about the constitutional status of birthright citizenship depends in large measure on whether we are persuaded by a living or an original reading of the Constitution. A living reading might conclude that the American people have evolved in our beliefs and values, broadening the meaning of the Fourteenth Amendment to endorse universal birthright citizenship. This would place a decision about the boundaries of citizenship beyond popular rule and into the realm of rights: those born on U.S. soil have a right to citizenship regardless of the current views of a majority of Americans. On the other hand, an original reading is more likely to understand citizenship as being within the realm of popular sovereignty and majority rule through our representative system. In this view, natural born citizenship is guaranteed by the Fourteenth Amendment to those born in the United States and also under the jurisdiction—the recognized governance and protection—of the U.S. government, but not those here illegally or visiting temporarily. In those cases, the American people can decide to grant or withhold citizenship, or to change policies over time.
To return to the opening quote from Chief Justice Warren, I included it not because I think it is correct or represents a core value of the Constitution, but because it sounds persuasive until you think about it. Warren asserted that “Citizenship is man’s basic right, for it is nothing less than the right to have rights.” High-minded perhaps, but low in reason. Citizenship in general may be a basic right of humans, but that does not mean citizenship in any country we choose. I don’t have a right to citizenship in France, nor can a French citizen demand U.S. citizenship and the right to participate in our elections or reside in our territory permanently without our consent. And is national citizenship really the source of rights? “Nothing less than the right to have rights,” as Warren phrases it? Leaving aside the core idea that many rights are natural, held by all people regardless of their current government, the U.S. Constitution recognizes many rights held by visitors or non-citizens, especially the Fourteenth Amendment’s right to the equal protection of the law for all persons, not just citizens. The specific legal rights that come with U.S. citizenship—representation in elections, access to government benefits, etc.—are significant but hardly the most important rights. And the rights of citizenship are also paired with the obligations, especially service in time of war.
The implications of the famous Chief Justice’s assertion seem weighty but perhaps wanting. Just because something sounds right at first hearing doesn’t make it correct. Similarly, a first read of the opening line of the Fourteenth Amendment may sound as if it endorses universal birthright citizenship, until we read the limiting clause and consider what it means.
Let no one tell you there is no debate or that the question is settled beyond discussion. Citizenship means ownership of the Constitution, not avoidance of the duty to engage and understand.
*Morgan Marietta (Dean of Economics, Politics & History, University of Austin, UATX). In keeping with Article VI, Section 6 of the Constitution of UATX, the views expressed here are his own and should not be construed as an official statement by the University. Parts of this essay are excerpted from Constitutional Law & Theory: The Classic & Contemporary Debates (February 2025 version).
Donald Trump interview with Jonathan Swann, “Axios on HBO” 30 October 2018.
For a quick summary, see the map produced by the World Population Review.
This is a surprisingly common practice, especially among Chinese elites. See this description in the Los Angeles Times from 2015 and this discussion from the Heritage Foundation (a conservative think tank) from 2020.
This position is endorsed by several contemporary legal scholars and political theorists, most notably Rogers Smith in Citizenship Without Consent (Yale University Press 1985). He argues that “the framers of the Citizenship Clause had no intention of establishing a universal rule of birthright citizenship.” The phrase they employed was “meant to leave Congress with the power to regulate access to birthright citizenship for groups to whose presence or membership it did not consent” (Peter Schuck and Rogers Smith, “The question of birthright citizenship” National Affairs Summer 2018).
Josh Blackman is another originalist who also argues that the band of exclusion is narrow, including “the children of diplomats, who are immune from American laws.” See “Birthright citizenship is a constitutional mandate” 2018 Cato Institute.
For further discussion of this debate, see Carol Nackenoff and Julie Novkov at The Conversation, and P.A. Madison at The Federalist Blog.
For a prominent supporter of this view, see Akhil Amar (Sterling Professor of Law and Political Science at Yale University). He discusses this interpretation in his excellent podcast, Amarica’s Constitution (see Season 5, Episode 5: “Birthright and Birthwrong”).
Epps argues that refusing to recognize birthright citizenship “contradicts the Fourteenth Amendment’s citizenship clause, it flies in the face of more than a century of practice, and it would create a shadow population of American-born people who have no state, no legal protection, and no real rights that the government is bound to respect” (“The citizenship clause means what it says” The Atlantic 30 October 2018).
Trop v. Dulles (1958) 356 U. S. 86 at 101
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This is a breathtakingly dishonest article, and it's shocking that a professional academic would write it.