Jonah Patel
Birthright citizenship is a legal principle that grants citizenship to individuals based on their place of birth or ancestry. In the United States, the Fourteenth Amendment guarantees birthright citizenship to every child born within the jurisdiction of the United States, regardless of their parents' immigration status. This has been a cornerstone of American civil rights, ensuring equal protection under the law. However, there have been recent attempts, particularly by the Trump administration, to restrict birthright citizenship for children of undocumented immigrants, which has faced legal backlash and been blocked by federal judges as blatantly unconstitutional. This has ignited debates about the interpretation of the Fourteenth Amendment and the extent of presidential power in altering citizenship rules.
| Characteristics | Values |
|---|---|
| Legal principle | Birthright citizenship |
| Citizenship determined by | Place of birth, not parentage |
| Other names | Jus soli, "right of the soil" |
| Conferment | Automatic |
| Conferment timing | At birth |
| Conferment conditions | Born within the jurisdiction of the United States |
| Conferment conditions exceptions | Native Americans, children of enslaved mothers, children of foreign diplomats, children born on foreign warships |
| Conferment conditions controversy | Children of undocumented immigrants |
| Conferment conditions exceptions controversy | Children of undocumented immigrants |
| Conferment conditions exceptions controversy resolution | Supreme Court precedent, multiple federal injunctions |
| Conferment conditions exceptions controversy resolution date | 1898, 2025 |
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What You'll Learn
The Fourteenth Amendment
The USCIS provides guidance on US citizenship at birth, including policies regarding residency requirements, adoption, and transmission of citizenship by unwed citizen parents. These policies outline the requirements for children born to US citizens abroad and the transmission of citizenship by unwed citizen mothers and fathers, addressing issues of equal protection under the Constitution.
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The Supreme Court case of United States v. Wong Kim Ark
Wong Kim Ark travelled to China for temporary visits in 1890 and 1895, intending to return to the United States. However, upon his return trip in 1895, he was denied re-entry into the United States under the Chinese Exclusion Act, which banned Chinese immigration and prohibited re-entry of Chinese immigrants. Wong Kim Ark challenged this refusal, asserting his birthright claim to U.S. citizenship. He argued that he was a citizen by birth (jus soli) in the United States, regardless of his parents' status or race.
The Supreme Court considered the "single question" of whether a child born in the United States to parents who are subjects of a foreign power but have a permanent domicile and residence in the United States and are not employed in any diplomatic capacity, becomes a citizen of the United States at birth. The Court held that Wong Kim Ark had acquired U.S. citizenship at birth and that his trips to China did not revoke his citizenship. The Court's decision established an important precedent in interpreting the Citizenship Clause of the Fourteenth Amendment, which states that "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 ruling in United States v. Wong Kim Ark set a significant legal precedent, clarifying that birthright citizenship applies regardless of parental status or race. This decision has had a lasting impact on the interpretation of citizenship law in the United States, ensuring that individuals born in the country are recognised as citizens, even if their parents are not.
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The Trump administration's stance
On his first day in office, President Donald Trump signed an executive order to end birthright citizenship for children of undocumented immigrants and for people with temporary status in the U.S. This was a departure from over 125 years of precedent, as the United States has long held unrestricted birthplace-based citizenship.
Trump's stance is that birthright citizenship is not possessed by children of illegal aliens under the "correct interpretation of the law". He has argued that the system is being abused and that there should be tougher standards for becoming an American citizen. The executive order was immediately met with lawsuits, with critics arguing that it disrupts long-standing legal norms governing citizenship and violates the 14th Amendment of the US Constitution.
The 14th Amendment, ratified after the Civil War, granted citizenship to "all persons born... in the United States, and subject to the jurisdiction thereof". The Trump administration, represented by US Solicitor General John Sauer, argued that the 14th Amendment was about giving citizenship to the children of slaves, not to the children of illegal immigrants. They contended that the current system required judges to make "rushed, high-stakes, low-information decisions" and that the lower courts had overstepped their authority.
Trump's executive order was taken to the US Supreme Court, where justices considered both sides. The court did not appear to reach a consensus, and it is unclear when a decision will be made. If the court rules in Trump's favour, it would set a precedent for the use of executive orders to bypass congressional approval.
The potential end of birthright citizenship could impact tens of thousands of children in the US, potentially forcing some to become undocumented or even stateless. It would also create a logistical challenge for states in verifying the citizenship of babies to allocate benefits.
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The Indian Citizenship Act of 1924
Before the Act, the citizenship status of Native Americans was determined irregularly based on factors such as descent, gender, marital status, and tribal affiliations. The Fourteenth Amendment, which guarantees birthright citizenship to all persons born within the jurisdiction of the United States, had been interpreted to exclude Native Americans. The Supreme Court case of Elk v. Wilkins in 1884 further reinforced this exclusion, ruling that Native American tribes were outside the "jurisdiction" of the United States.
The Act was shaped primarily by two white groups: Progressive senators and activists, like the "Friends of the Indians." These groups supported the Act as they believed it would reduce corruption and inefficiency in institutions like the Department of Interior and the Bureau of Indian Affairs. On the other hand, some Native American groups, such as the Onondaga Nation, opposed the Act, arguing that it was treason and disregarded previous treaties that recognized their sovereignty.
Despite the Indian Citizenship Act of 1924, Native Americans have continued to face challenges in fully accessing the rights and privileges of citizenship. Even today, Native Americans still struggle with inequities in voting access, and their contributions to the democratic fabric of the nation are often overlooked.
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The Civil Rights Act of 1866
The Act was mainly intended to protect the civil rights of persons of African descent, born in or brought to the United States, in the wake of the American Civil War. It declared that all people born in the United States who are not subject to any foreign power are entitled to be citizens, regardless of race, colour, or previous enslavement. This was in direct response to the infamous Dred Scott decision, where the Supreme Court ruled that people of African descent were not citizens of the United States, rejecting birthright citizenship for people of colour.
The Act was closely related to the Thirteenth Amendment, which abolished slavery, and the Fourteenth Amendment, which guaranteed certain rights for African Americans in all states. The Fourteenth Amendment further enshrined birthright citizenship, guaranteeing that every child born "within the jurisdiction of the United States" is a US citizen, regardless of their parents' immigration or citizenship status.
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Frequently asked questions
Birthright citizenship is a legal principle under which citizenship is automatically granted to individuals upon birth. There are two forms of birthright citizenship: ancestry-based citizenship and birthplace-based citizenship.
The Fourteenth Amendment to the United States Constitution guarantees birthright citizenship to every child born "within the jurisdiction of the United States." It states that "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."
No, there have been historical exclusions. For example, enslaved persons and children of enslaved mothers were excluded from birthright citizenship, and Native Americans were denied birthright citizenship through the interpretation of the Fourteenth Amendment.
While birthright citizenship is enshrined in the Constitution, there have been attempts to restrict or eliminate it, particularly for children of undocumented immigrants. These attempts have faced legal challenges and backlash, with federal judges blocking such orders as "blatantly unconstitutional."
Critics argue that attempts to restrict birthright citizenship are unconstitutional, unnecessary, impractical, and contrary to American values. They maintain that the Fourteenth Amendment, interpreted through the Supreme Court case United States v. Wong Kim Ark, unequivocally extends birthright citizenship to anyone born in the United States, regardless of their parents' immigration status.
