Eleanor Finch
Jus soli, or right of the soil, is a legal principle that grants citizenship to individuals born within a country's borders, regardless of their parents' citizenship status. While it is not explicitly mentioned in the US Constitution, it serves as the basis for citizenship in the United States and several other countries, especially in the Western Hemisphere. The Fourteenth Amendment to the US Constitution, adopted in 1868, guarantees birthright citizenship to those born in the US or naturalized, stating that they are citizens of the United States and of the State wherein they reside. This amendment was added to clarify and uphold the right to citizenship for those born on US soil, regardless of race, colour, or ancestry.
| Characteristics | Values |
|---|---|
| Origin | English common law |
| Basis for citizenship | Nearly every nation-state in the Western Hemisphere |
| Type of citizenship | Birthright citizenship |
| Number of countries granting unrestricted birthright citizenship | 35 |
| Number of countries granting restricted birthright citizenship | 40 |
| Countries with unrestricted jus soli | USA, Canada, Barbados, Mexico, Brazil, Chile, Azerbaijan, Cambodia, China, Costa Rica |
| Countries with restricted jus soli | India, Germany, France, etc. |
| Jus soli in the US Constitution | Fourteenth Amendment |
| Exceptions to jus soli in the US | Children of diplomats, children of foreign government employees, children of undocumented immigrants, children of occupying enemy soldiers |
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What You'll Learn
Jus soli in the US Constitution
Jus soli, or "right of the soil", is a legal principle that grants citizenship to anyone born within a country's borders, regardless of their parents' citizenship. Jus soli is the predominant rule in the Americas, with 35 countries providing citizenship unconditionally to anyone born within their national borders.
In the United States, jus soli is the basis for citizenship, alongside jus sanguinis ("right of blood"), which grants citizenship based on parental citizenship. US citizenship is guaranteed to anyone born under the jurisdiction of the federal government by the Citizenship Clause of the Fourteenth Amendment to the US 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 was adopted on July 9, 1868, and affirmed birthright citizenship, which had been a fundamental legal principle since the dawn of the Republic.
The Fourteenth Amendment was added to clarify what some drafters felt was already the law of the land: that all those born to parents beholden to the laws of the United States were citizens. This was further supported by the 1844 New York case of Lynch v. Clarke, which held that a child born in the United States to a temporary visitor was a natural-born citizen. The Fourteenth Amendment was also significant in granting citizenship to people of colour born on American soil, as affirmed in the Dred Scott v. Sandford case in 1857, where the previous ruling that no person of African descent could be considered a citizen, even if born in the US, was overturned.
However, there has been political opposition to jus soli birthright citizenship in recent years, particularly with the election of Donald Trump, who explicitly opposes jus soli citizenship for children of undocumented immigrants. Despite this, most legal observers agree that the Fourteenth Amendment explicitly endorses jus soli citizenship, and attempts to change this would be unconstitutional, impractical, and expensive.
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Jus soli vs. jus sanguinis
Jus soli, meaning 'right of soil', is the right of anyone born in the territory of a state to nationality or citizenship. It originated in English common law and serves as the basis for citizenship in nearly every nation-state in the Western Hemisphere. It is also the foundation for the Fourteenth Amendment to the Constitution of the United States. Jus soli is the predominant rule in the Americas, with 35 countries providing citizenship unconditionally to anyone born within their national borders. Some countries outside the Americas with mixed systems extend jus soli citizenship on a limited basis to children who are not otherwise eligible for any national citizenship.
Jus soli is in contrast to jus sanguinis, meaning 'right of blood', which grants citizenship on the basis of the citizenship possessed by one's parent or parents. Jus sanguinis is associated with the French Civil Code of 1804. Almost all the states in Europe, Asia, Africa, and Oceania grant citizenship based on jus sanguinis. Jus sanguinis is not a constitutional right or a birthright in the United States. Citizenship by jus sanguinis is a legal status conferred by statute.
Canada and the US are the only developed western countries that still follow jus soli. In Canada, subsection 3(2) of the Citizenship Act states that Canadian citizenship by birth in Canada is granted to a child born in Canada even if neither parent was a Canadian citizen or permanent resident. However, if either parent was a diplomat, in service to a diplomat, or employed by an international agency of equal status to a diplomat, the child does not qualify for citizenship. In the US, the Citizenship Clause of the Fourteenth Amendment to the United States Constitution, adopted on July 9, 1868, guarantees birthright citizenship to anyone born under the legal "jurisdiction" of the US federal government. The clause 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."
Political opposition to jus soli birthright citizenship has arisen in the United States, particularly with the election of Donald Trump, who explicitly opposes jus soli citizenship for children of undocumented immigrants. Upon taking office 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 executive order is currently being challenged in court.
Some countries that follow jus soli include:
- Barbados
- Canada
- Costa Rica
- Mexico
- Azerbaijan
- Brazil
- Chile
- Cambodia
- Thailand
- France
- Germany (since 2000)
- Greece
Some countries that follow jus sanguinis include:
- China
- France
- Germany (before 2000)
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Birthright citizenship
Jus soli is the predominant rule in the Americas, with 35 countries providing citizenship unconditionally to anyone born within their borders, and an additional 40 countries offering birthright citizenship with certain restrictions, such as requiring at least one parent to be a citizen or resident. This rule emerged due to lenient laws set by past European colonial powers to encourage immigration to the New World, as well as successful wars of independence that broadened the definition of citizenship, and the abolishment of slavery in the 19th century.
In the United States, birthright citizenship is guaranteed by 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 was adopted in 1868 after the Civil War, to clarify and secure citizenship for all persons born on U.S. soil, regardless of race or ancestry, in response to arguments about slavery and the Dred Scott v. Sandford case, which denied citizenship to people of African descent, even if they were born in the U.S.
However, political opposition to jus soli has arisen in the U.S. in recent decades, particularly with the election of Donald Trump, who opposes birthright citizenship for children of undocumented immigrants. Despite this, most legal observers agree that the Fourteenth Amendment explicitly endorses jus soli citizenship, and attempts to change this interpretation are considered irresponsible and unconstitutional.
While jus soli is more common in the Americas, some countries outside this region also offer birthright citizenship with varying restrictions. For example, Canada grants citizenship by birth on Canadian soil, except if the parents are diplomats or employed by an international agency. Similarly, Azerbaijan's constitution mentions birthright citizenship, but in practice, citizenship is granted based on having at least one Azerbaijani parent.
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Statelessness
Jus soli, or "right of the soil", is a legal principle that grants citizenship to individuals based on their birth within the territory of a state, regardless of their parental citizenship. It is derived from English common law and serves as the basis for citizenship in nearly every nation-state in the Western Hemisphere. While it is the predominant rule in the Americas, only 35 countries worldwide provide unrestricted birthright citizenship, with 40 more offering conditional birthright citizenship.
The concept of jus soli is deeply rooted in the constitutions and legal systems of several countries. For instance, the Fourteenth Amendment to the United States Constitution, adopted in 1868, explicitly guarantees birthright citizenship. It 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 was added to clarify and uphold the belief that birth within the United States grants U.S. citizenship, regardless of parental citizenship. However, there has been political opposition to jus soli in the United States, particularly regarding the children of undocumented immigrants. Despite this opposition, most legal observers agree that the Fourteenth Amendment endorses jus soli citizenship.
In Canada, subsection 3(2) of the Citizenship Act grants citizenship by birth in Canada, even if neither parent is a Canadian citizen or permanent resident, except if either parent is a diplomat or has a similar status. Similarly, Article 30 of the Constitution of Mexico states that persons born in Mexican territory are natural-born citizens of Mexico, regardless of their parents' nationality.
Jus soli plays a crucial role in preventing statelessness, which is the condition of not possessing or being denied a nationality. Statelessness can severely limit individuals' access to basic human rights, education, employment, healthcare, and freedom of movement within a country. By granting citizenship based on birth within a country's borders, jus soli ensures that every child has a legal state and prevents the inheritance of statelessness by offspring.
However, it is important to note that not all countries recognize jus soli. Some countries, like those in Europe, favour jus sanguinis, or "right of blood", which grants citizenship based on parental citizenship or ancestry. Additionally, countries with jus soli laws may impose restrictions, such as requiring parents to be citizens or residents or excluding the children of undocumented immigrants. Despite these variations, jus soli remains an essential concept in citizenship laws around the globe, shaping the relationship between individuals and their states.
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History of jus soli
Jus soli, meaning 'right of soil', is the right of anyone born in the territory of a state to nationality or citizenship, regardless of parental citizenship. It is the predominant rule in the Americas, with 35 countries providing citizenship unconditionally to anyone born within their national borders. Jus soli is also known as birthright citizenship and is rooted in colonial history, when settlers born in the colonial United States were considered "natural-born" subjects of the King of England. This idea of allegiance based on natural law principles was the core concept of citizenship in Calvin's Case, where Edward Coke said that "they that are born under the obedience, power, faith, ligealty or ligeance of the King are natural subjects and no aliens".
Jus soli was part of English common law, which, from the medieval period onwards, treated those born within the king's territory as his subjects. This tradition was the ancestor to the modern principle of jus soli. In the early nineteenth century, officials in multiple jurisdictions began prioritizing positive law above natural law and transformed parentage and birthplace into competing principles for assigning nationality. This movement was crystallized in 1860 when Charles Demolombe introduced jus soli and jus sanguinis to nationality law as competing, ostensibly ancient legal traditions. The framework spread quickly because it was a useful way to assign nationality despite states' conflicting approaches to political membership.
Jus soli serves as the basis for citizenship in nearly every nation-state in the Western Hemisphere and as the foundation for the Fourteenth Amendment to the Constitution of the United States. The Citizenship Clause of the Fourteenth Amendment, adopted on July 9, 1868, 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 drafters felt was already the law of the land: that all those born to parents beholden to the legal "jurisdiction" of the US federal government were automatically US citizens.
However, there has been political opposition to jus soli birthright citizenship in the United States, particularly with the election of Donald Trump, who explicitly opposes jus soli citizenship for children of undocumented immigrants. Some countries outside the Americas with mixed systems extend jus soli citizenship on a limited basis to children who are not otherwise eligible for any national citizenship, such as children born to women who are unwed or from countries that do not recognize maternal jus sanguinis citizenship.
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Frequently asked questions
Jus soli, or ""right of the soil", is the legal principle that provides citizenship to individuals born within a country's borders, regardless of their parent's citizenship status.
Jus soli is the basis for citizenship in the US and serves as the foundation for the Fourteenth Amendment to the Constitution. The Citizenship Clause of the Fourteenth Amendment, adopted in 1868, guarantees birthright citizenship to anyone born in the US or its territories.
There have been legal debates and proposed amendments regarding the applicability of jus soli to the children of unauthorized immigrants born on US soil. However, most legal observers agree that the Fourteenth Amendment explicitly endorses jus soli citizenship.
Jus soli is the predominant rule in the Americas, with 35-37 countries providing unrestricted birthright citizenship. Some countries outside the Americas, such as Canada, Azerbaijan, and Costa Rica, also recognize jus soli with varying restrictions.
