Birthright Citizenship and the Making of Citizens

What makes someone a citizen? We might say, a little hopefully, that a citizen is someone who obeys the law, treats other citizens with respect, participates in governance, and enjoys the protection of the United States. But those are definitions of good citizenship. What makes one a citizen as a legal fact was elided when the Constitution was written in 1787. It was not until the ratification of the Fourteenth Amendment in 1868 that the Constitution defined who was a citizen. It did so in one terse sentence: “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.” If you are born in the U.S., you are considered, ipso facto, an American citizen, and with only minor exceptions.

That sentence has, of course, triggered a major constitutional brawl. Conservative jurists and politicians, fearful that illegal immigration threatens American society, have criticized the idea that birth on American soil makes someone a citizen. On April 1, the Supreme Court will hear oral argument on an attempt by Donald Trump’s administration to question the conventional meaning of “birthright citizenship.”

One of President Trump’s first executive orders (EO 14160) insists that illegal migrants cannot be considered, in most cases, to be “subject to the jurisdiction” of the United States. Hence, their children are not citizens, even if born on American soil. If, for instance, a child is born in Mississippi, but the mother entered the country illegally, and the father was not a U.S. citizen at the time, then according to EO 14160, the child is not a U.S. citizen.

That claim hangs a great deal on the phrase, “subject to the jurisdiction,” and it is not at all clear that the Fourteenth Amendment founders intended for the jurisdiction clause to become the tail wagging the citizenship dog. No surprise, then, that Executive Order 14160 has been met with lawsuits. In July 2025, U.S. District Judge Joseph Laplante issued a preliminary injunction against EO 14160 in Barbara v. Trump, as did the Ninth Circuit Court of Appeals in Barbara v. Trump. But in December, the U.S. Supreme Court granted review to the Trump administration.

There are, in the most general sense, two ways of making someone a citizen. The first is known as the jus sanguinis—the law of blood, or hereditary descent. Under jus sanguinis, you are automatically a citizen if your parents were citizens. The alternative is the jus solis—the law of the soil, where birth on a national territory makes you a citizen. It was this version of citizenship that the Fourteenth Amendment made part of the Constitution.

In the long view, the jus solis has been the dominant model for citizenship in English, and then American, law. As early as 1608, the fabled English jurist Edward Coke wrote in Calvin’s Case that “every one born within the dominions of the King of England” is “entitled to enjoy all the rights and liberties of an Englishman.” And though the Constitution never spelled out the jus soli, American jurists and judges picked up the theme in American practice. Hence, in 1806, in Gardner v. Ward, a Massachusetts court ruled that even a Loyalist who had returned home after exile during the Revolution “is a citizen of the country wherein he was born” and was entitled to vote. In Lynch v. Clarke, an 1844 case in New York, the court ruled that Julia Lynch, a woman born in America but raised in British-ruled Ireland by her Irish parents, was an American citizen simply by virtue of her birthplace. “The general understanding of the legal profession, and the universal impression of the public mind,” wrote Judge Lewis Standford, “is that birth in this country does of itself constitute citizenship.”

What derailed this comparatively straightforward principle was race. The 1787 Constitution mentioned citizenship five times, but it addressed both national and state citizenship without defining the relationship between them. That oversight allowed Southern courts, acting in the interests of white supremacy, to insist that free blacks were not citizens of their states, and therefore could not enjoy national citizenship either. “It seems very manifest,” announced Attorney General William Wirt in 1821, “that no person is included in the description of citizen of the United States who has not the full rights of a citizen in the State of his residence.” Hence, there was nothing to prevent Southern states from erasing any notion of black state citizenship and then using that erasure to deny black national citizenship.

It remained only for Chief Justice Roger Taney, in the infamous decision he wrote for Dred Scott v. Sandford [This raises the perennial question: Sandford or Sanford; a clerk mis-spelled John Sanford’s name and so it appears officially as Sandford] in 1857, to take the erasure one step further and blot out the jus soli on the national level as well. Taney reversed Wirt’s logic: African Americans were racially incapable of being citizens and therefore had no claim to the rights of citizenship in the western territories (and, if Taney had dared to take it one more logical step, in any state, either). Dred Scott, the plaintiff in the case, could not be “a citizen of the United States” because “he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves.” When the 1787 Constitution was written, Taney reasoned, Black people “were considered as a subordinate and inferior class of beings, who the dominant race had subjugated, and…had no rights or privileges but such as those who held the power and the government might choose to grant them.”

Abraham Lincoln understood that Dred Scott was a political, not a legal decision. When he was elected president in 1860, he set out to reverse Dred Scott. In his Inaugural Adress, with Taney behind him on the east portico of the Capitol, Lincoln dared to suggest that re-captured fugitive slaves deserved at least due process—a privilege which not even Taney could have missed as a component of citizenship In 1862, Edward Bates, Lincoln’s attorney-general, gingerly raised the citizenship question in an official opinion which concluded “every person born in the country is, at the moment of birth, prima facie a citizen … and the country he is born in is, prima facie, his country.”

The need for restoring the jus soli became even more acute in 1865 with the end of the war, since Lincoln’s Republicans now needed to raise a Republican Party in the defeated Confederacy to carry forward a postwar reconstruction. The most obvious constituency was the newly emancipated slaves. But they lacked the vote. In January 1866, Republicans introduced a Civil Rights Bill that would recognize black citizenship and, with it, the vote. But acts can be overturned, and Congress turned to passing a Fourteenth Amendment, with a definition of citizenship unapologetically based on the jus soli.

There remained, however, that peculiar exception to the jus soli captured in the amendment’s phrase and subject to the jurisdiction thereof. Common law held that the families of foreign diplomats and the soldiers of occupying armies might beget children on some other country’s soil; no one with any practical sense would deem those children citizens of that country. The famous 19th-century American jurist, James Kent, made three exceptions to the jus soli: the offspring of foreign diplomatic personnel, soldiers of foreign armies, and members of Indian tribes “who are not born in obedience to us” (because American law then recognized the tribes as “national communities” of their own). The 39th Congress affirmed this rule not once but twice: first when the Civil Rights Bill was debated in 1866, and again during the debate over the proposed Fourteenth Amendment. Proponents were very clear that the jurisdiction exclusion applied only to “foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States” and to members of the tribes who have “always … been in our legislation and jurisprudence” regarded “as being quasi foreign nations.” Otherwise, “it will include every other class of persons.”

But with waves of immigrant labor which piled onto American shores after the Civil War, the question arose as to whether many of the immigrants really considered themselves subject to American law, so that any of their children born in the United States might also be subject to the jurisdiction exceptions.

This question arose in 1898 in U.S. v. Wong Kim Ark. Wong Kim Ark was born in California in 1870 to Chinese immigrant parents. His parents owned a small business in San Francisco, but they did not seek U.S. citizenship and returned to China later in the 1870s. Wong Kim Ark, however, returned to the U.S. to find work and settled as a cook in a mining camp. He made several trips to China to visit his parents. Still, in 1895, he was almost barred from re-entry into California by a customs official who insisted that Wong Kim Ark was not only not a citizen but also prevented from entering the country by the 1882 Chinese Exclusion Act. He filed suit, and in 1897, his case was heard before the Supreme Court. The Court’s conclusion in March 1898 was a resounding 6-to-2 decision in favor of the strongest version of the jus soli. Even if his parents were “subjects of the Emperor of China” and with no intention of becoming American citizens, Wong Kim Ark nevertheless became, “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.”

The Trump administration’s challenge to birthright citizenship reopens the definition of jurisdiction. Its advisers have argued that non-citizen parents who entered the U.S. deliberately violated U.S. immigration statutes. Although “the parents are not enemies in the sense of an invading army,” still “they did not come in amity” to the United States. They are, in other words, not “completely subject” to American law; hence, any children born to them on American territory cannot enjoy the benefit of jus soli. This, of course, is in direct contradiction of the finding in Wong Kim Ark’s case; some commentators respond that Ark may have been decided in error.

There are serious problems with these challenges. No one denies the difficulties posed by waves of mass migration, which have become problematic throughout the developed world. But many proposed solutions promise to create more difficulties. So it is with the dispute over birthright citizenship and the meaning of jurisdiction. In the most basic sense, it is difficult to arrive at a clear legal understanding of a concept as subjective as “amity,” or even “completely subject.” Whenever jurists like Coke and Blackstone talked about an absence of amity, they meant declarations of war, not an inability to sing the National Anthem. Some situations defy attempts to determine “amity.” To illustrate this, Yale Law Professor Keith Whittington asks us to imagine a foundling left on the doorstep of a home with no parent available to be examined for “amity.” Are we ready to deny that newborn the status jus soli would otherwise give, while we search for the parents? And what if we never find them?

There is also the stumbling block of ‘jurisdiction.’ Consider a case, which was filed in Nebraska only 12 years after the Fourteenth Amendment’s ratification. In April 1880, a Native American tribesman (possibly a Winnebago or Ho-Chunk, although the court documents are not particularly clear) named John Elk filed suit in federal court after an elections registrar in Omaha, Charles Wilkins, refused to accept his vote in the Omaha city council election. The district court dismissed Elk’s claim in January of 1881, and in November 1884, the Court turned down the appeal. Elk had been born on a reservation and had never filed any documents attesting to a change of allegiance, and so was not, under federal treaties with the tribes, considered “subject to the jurisdiction” of the United States.

Much as this could be read today as a hostile dismissal of native rights, in 1880, it was considered an affirmation of tribal nationhood’s autonomy. Hence, the decision against Elk was not based on being in “amity” with U.S. laws, but on whether he had repudiated his tribal birth-allegiance. However, the implication—and this is the key consideration in the current “birthright citizenship cases”—was that if Elk had been born anywhere off the reservation, he would then have been considered “subject to the jurisdiction” and allowed to vote.

Finally, there is a technical question: how willing are we to overturn more than a century and a quarter of settled jurisprudence from the highest court in the land? One hundred and twenty-eight years of consistent application of Wong Kim Ark?

But still larger in my mind is the cloud this throws over the Fourteenth Amendment itself. The Amendment was a necessity which grew out of a great injustice, which was American slavery and Dred Scott, which made slavery nearly unmovable, “alike lawful” (as Lincoln put it) “in all the States, old as well as new—North as well as South.” The Civil War overturned Dred Scott and slavery, but in its abolition of slavery, Washington faced the hostility of the old slave-owning class, and their determination to keep political equality forever from Black hands by denying (like Chief Justice Taney) that African Americans could ever be citizens. The Fourteenth Amendment changed that for good: no matter what one’s status had been before 1868, birth on American soil made one a citizen. To lay a finger on the Fourteenth Amendment—however narrowly, through the jurisdiction phrase, however plausibly, through the possibility of abuse—desecrates the amendment and the fight to end slavery.

The post Birthright Citizenship and the Making of Citizens appeared first on Washington Monthly.