The Birthright: Constitutional Rights Of Us-Born Children

The concept of birthright citizenship in the United States, also known as jus soli, is derived from the Fourteenth Amendment to the US Constitution, 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. This amendment, adopted in 1868, guarantees citizenship to those born on US soil, regardless of their parents' immigration status. However, this interpretation has been contested, particularly in relation to the children of undocumented immigrants, leading to political debates and legal challenges. The birthright citizenship debate in the US is complex and has significant implications for immigration policy and civil rights.

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The Fourteenth Amendment

The Citizenship Clause of the Fourteenth Amendment states: "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." This clause was added to clarify what some of the drafters felt was already the law of the land: that all those born to parents beholden to U.S. law ("even aliens") were guaranteed citizenship.

However, there is political opposition to birthright citizenship, particularly for the children of undocumented immigrants. Some argue that the Fourteenth Amendment does not apply to the children of unauthorized immigrants born on U.S. soil. In 2025, President Trump issued an executive order asserting that the federal government would not recognize birthright citizenship for the children of non-citizens, but this was blocked by a federal judge who called it "blatantly unconstitutional."

In addition to birthright citizenship, the Fourteenth Amendment also addresses other aspects of citizenship and the rights of citizens. It includes the phrase "equal protection of the laws," which has been litigated in landmark cases such as Brown v. Board of Education (racial discrimination), Roe v. Wade (reproductive rights), and Bush v. Gore (election recounts). The Fourteenth Amendment also prohibits any state from depriving a person of life, liberty, or property without due process of law.

Jus soli citizenship

In the United States, jus soli citizenship is enshrined in the Fourteenth Amendment to the Constitution, which states: "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." This amendment, adopted in 1868, was added to clarify and guarantee birthright citizenship for those born under the legal "jurisdiction" of the US federal government. The Supreme Court case of United States v. Wong Kim Ark in 1898 further cemented this interpretation, establishing birthright citizenship for children of all immigrants.

The idea of jus soli citizenship in the US has its roots in colonial history, where settlers born in colonial America were considered "natural-born" subjects of the King of England. The concept has evolved since then, and today, the US employs a combination of unrestricted jus soli citizenship and restricted ancestry-based citizenship (jus sanguinis). While political opposition to jus soli citizenship has emerged in recent decades, particularly regarding children of undocumented immigrants, most legal scholars agree that the Fourteenth Amendment explicitly endorses this form of citizenship.

Jus soli is the predominant rule in the Americas, with 35 countries providing unconditional citizenship to anyone born within their borders. This phenomenon can be attributed to historical factors such as lenient laws set by European colonial powers and the emergence of successful independence movements. Outside the Americas, some countries with mixed systems also offer jus soli citizenship to children who would otherwise be stateless, ensuring their right to nationality and preventing statelessness in future generations.

Children of undocumented immigrants

The Fourteenth Amendment to the United States Constitution guarantees birthright citizenship to every child born "within the jurisdiction of the United States". The Citizenship Clause of the Fourteenth Amendment states:

> 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.

This clause was added to the Amendment to clarify that all those born to parents beholden to U.S. law, "even aliens", were guaranteed citizenship. The 1898 Supreme Court case of United States v. Wong Kim Ark established a precedent in its interpretation of the Citizenship Clause, cementing birthright citizenship for children of all immigrants. For over a century, anyone born on U.S. soil has automatically been conferred citizenship at birth, regardless of their parents' immigration or citizenship status.

However, the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. There are two exceptions to birthright citizenship: children born to diplomats and children born to members of foreign armies on U.S. territory. Children born to undocumented immigrants or temporary visitors do not fall under either of these exceptions. In fact, in overturning Dred Scott v. Stanford, Congress repudiated the idea that birthright citizenship was "based in any way on racial, hereditary, or dependent on a parent’s immigration status".

Despite this, anti-immigrant political factions, including former President Donald Trump, have pushed to restrict birthright citizenship, primarily attempting to deny it to children of undocumented immigrants. Upon taking office for his second term in 2025, Trump issued an executive order asserting that the federal government would not recognize jus soli birthright citizenship for the children of non-citizens. The order was blocked by a federal judge, who called it "blatantly unconstitutional".

Harvard Law School Professor Gerald Neuman has argued that a president has no authority to change United States citizenship rules, and that the Fourteenth Amendment's protections should not be dependent on a parent's immigration status. According to Neuman, birthright citizenship is a non-racial rule: "being born in the United States makes you an American citizen".

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American Indian tribal members

The Fourteenth Amendment to the United States Constitution guarantees birthright citizenship to every child born "within the jurisdiction of the United States". The Citizenship Clause of the Fourteenth Amendment states:

> 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.

However, American Indian tribal members are not covered specifically by this constitutional guarantee. Those living in tribes on reservations were generally not considered citizens until the passage of the Indian Citizenship Act of 1924, by which time nearly two-thirds of American Indians were already citizens. The Act declared that:

> [A]ll noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided that the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.

The issue of American Indian birthright citizenship was the subject of the 1884 Elk v. Wilkins case, in which the U.S. Supreme Court held that a Native American born to tribal member parents did not qualify for birthright citizenship under the Fourteenth Amendment. The case was one of the few examples of how courts applied the basic principle of citizenship based on birth in the United States, but it only addressed the citizenship of white persons born in the country.

Despite the Indian Citizenship Act of 1924, some Native Americans have faced harassment from federal immigration officials targeting them for their skin colour. In 2025, President Trump issued an executive order entitled "Protecting the Meaning and Value of Birthright Citizenship", which sought to strip citizenship from children born in the United States to parents who are not citizens or lawful permanent residents. However, this order did not attempt to strip Native American birthright citizenship.

Interpreting the Citizenship Clause

The Citizenship Clause, also known as the Fourteenth Amendment, is one of the most significant sentences in the US Constitution, with a broad theoretical scope. 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."

This clause establishes birthright citizenship in the United States, guaranteeing that anyone born in America is a citizen, regardless of their parents' citizenship status. This concept is known as jus soli, or the "right of the territory". It also recognises citizenship by naturalisation, which is when a non-citizen acquires citizenship.

The Citizenship Clause was drafted in response to concerns about the constitutionality of the Civil Rights Act, seeking to protect citizens from any "congressional forcible destruction" of their citizenship. It also served to repudiate the infamous Dred Scott case, which ruled that only white persons born in the United States were citizens, excluding freed slaves and those of other races. The Fourteenth Amendment overturned this decision, restoring the traditional precepts of citizenship by birth.

The Citizenship Clause has been interpreted to grant citizenship to children born on US soil, with very few exceptions. One notable exception is Native Americans, who were considered members of sovereign tribal nations and not subject to US jurisdiction until the Indian Citizenship Act of 1924. Additionally, the citizenship of children born on US vessels or in territorial waters is determined by the citizenship of their parents.

The Citizenship Clause also addresses the relationship between state and federal governments, challenging the "state action doctrine". While the Fourteenth Amendment's second sentence can be interpreted as creating rights against state governments, the Citizenship Clause is not expressly limited to this relationship and has broader implications.

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