Diluting the meaning and value of American citizenship
By Jaden Flachs
President Donald Trump was sworn into office on January 20th, 2025. On the very same day, he signed 10 executive orders, one of which attempted to end birthright citizenship for the children of undocumented immigrants. Titled Protecting the Meaning and Value of American Citizenship, the order argues that the language of the Fourteenth Amendment has never been understood to universally grant citizenship to everyone born on U.S. soil. Yet, through analyzing centuries of history and legal precedent, we can prove that conservative arguments surrounding birthright citizenship are categorically false, and further, that Trump’s executive order is unconstitutional.
One of the key justifications for conservative criticism of birthright citizenship is that it is a uniquely American practice. President Trump has even been quoted saying that the United States is the “only country in the world” that practices unrestricted jus soli, or citizenship based on the territory where one is born. In reality, almost every country in the Western Hemisphere follows some form of jus soli citizenship. Our neighbors, Canada and Mexico, as well as Brazil, Argentina, and the majority of Latin American and Caribbean countries, grant automatic citizenship to individuals born on their soil. In contrast to the Western Hemisphere, most countries in Europe practice jus sanguinis, which refers to the principle in which a person’s citizenship is determined by the ‘blood’ of their parents. In practice, this grants citizenship to a child if one or both of their parents are of that nationality.
It is unsurprising that there is such a stark contrast in the citizenship practices between Europe and the nations of the formerly called "New World." In Europe, jus sanguinis was more appealing to nations with centuries of history and significantly denser populations than the New World colonies. It served as a way to ensure that new migrant groups integrated through native parentage, marriage, or extended periods of residency. When colonies in the New World gained independence, many states chose jus soli as a way to break away from the grasp of colonial rule. Moreover, the early Americas had a strong demand for labor and a need for people to populate new territories. Through legislation such as the Homestead Acts in the nineteenth century, the U.S. government offered free land to new migrants. Thus, we can see that birthright citizenship is deeply rooted in our nation's history and is responsible for our fundamental understanding of what it means to be an American.
Given this historical context, it follows that the United States formally enshrined birthright citizenship in the Constitution through the Fourteenth Amendment, ensuring legal protection for those born on U.S. soil. One of the three major amendments passed during the Reconstruction era to abolish slavery, the Fourteenth Amendment grants citizenship to all persons "born or naturalized in the United States." In our context, the Fourteenth Amendment has become the basis for countless landmark Supreme Court decisions upholding soil-based citizenship, namely United States v. Wong Kim Ark.
United States v. Wong Kim Ark was ruled on March 28, 1898, shortly after the repeal of the Chinese Exclusion Act, a law enacted to ban all Chinese immigration to the United States. Wong Kim Ark’s parents were Chinese citizens who came to the United States to work. They resided in San Francisco when Wong Kim Ark was born and lived there for 20 years before they returned to China. At 21, Wong Kim Ark went to China to visit his parents, yet was denied entry back to California on the grounds that he was not a citizen. The subsequent court battle would forever change the meaning of the Fourteenth Amendment, determining whether it would be interpreted beyond the historical context of slavery. Wong Kim Ark won his citizenship, and the court affirmed that the Fourteenth Amendment clause grants birthright citizenship to all persons born in the United States, regardless of the status of their parents.
Since then, countless immigrant families have come to America in search of opportunity, and birthright citizenship has provided their children with a secure path to upward mobility. However, some legal scholars have pushed back. Starting in 2017, when President Trump first hinted at plans to severely limit paths to citizenship, and even earlier, conservative legal thinkers disagreed with the large-scale expansion of the Fourteenth Amendment. A large part of their argument against birthright citizenship for those with undocumented parents comes from the interpretation of the United States v. Wong Kim Ark case. Trump and other conservative legal thinkers acknowledge that children born here to permanent residents are citizens, yet they claim it should not be interpreted to hold that children born to those illegally present are citizens. Further, in the Wong Kim Ark case, they highlight that the Supreme Court ruled in favor of Ark’s citizenship because his parents were permanent residents.
The conservative argument rests upon one phrase in the writing of the Fourteenth Amendment: “subject to the jurisdiction.” Originalist thinkers draw from Sen. Lyman Trumbull, a key figure in the passing of the Fourteenth Amendment, in the interpretation of this phrase to refer to ‘allegiance’ to the United States. There is also heavy reliance on the Supreme Court case Elk v. Wilkins (1884), in which John Elk, a Winnebago Indian, voluntarily left his tribe, resided among white citizens, and attempted to vote in Omaha, Nebraska. Elk argued that the Fourteenth Amendment applied to him since he was born in the United States and was thus entitled to his right to vote. The Court disagreed with Elk, citing that Native Americans were not considered citizens by birth due to the nature of reservations’ legal status as areas under federal jurisdiction. Conservative thinkers cite this case as proof of the denial of citizenship on the grounds that Elk owed immediate allegiance to his tribe rather than the United States. They go even further to use the decision of this case to argue that children of undocumented immigrants are somehow “allegiant” to the political jurisdiction of the country of their parents.
The language of this decision makes it clear that the issue in this case was one of land and jurisdiction. The Court did not recognize Native American reservations as U.S. soil, reinforcing the idea that citizenship is determined by birthplace. Rather than undermining birthright citizenship, this case actually strengthens the argument that anyone born on U.S. soil is entitled to citizenship, as follows from the Fourteenth Amendment.
In addition to refuting conservative arguments, we can analyze immigration case law to see that the executive branch's attack on birthright citizenship is unfounded. In Plyler v. Doe (1982), a Texas law that allowed local school districts to deny the education of undocumented children was challenged. In a 5-4 decision, the Supreme Court abolished the law, arguing that denying undocumented children access to public education simply due to their immigration status was in violation of the Equal Protection Clause and fundamentally unconstitutional.
Even more interesting about this case is the footnote that states there can be no distinction, with respect to the Fourteenth Amendment’s ‘jurisdiction,’ that can be drawn “between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” This simple addition to Plyler v. Doe not only refutes a majority of conservative opinions on birthright citizenship for undocumented immigrants but also undoubtedly upholds its widespread interpretation today.
The legality of birthright citizenship for children of undocumented immigrants is not only affirmed by judicial precedent but can also be found in U.S. law and government policies. A key statute addressing this issue is the Immigration and Nationality Act (INA), which explicitly upholds birthright citizenship despite documentation status. Specifically, Section 1401 of the INA states that individuals born within the territory of the United States are considered nationals and citizens at birth, regardless of the immigration status of their parents.
Despite his efforts, legislation, judicial precedent, and the writers of the Bill of Rights prove that Trump’s executive order is, in fact, unconstitutional. Yet, the question of how this and future policies will affect immigration still remains.
