Birthright Citizenship and the 14th Amendment

The Citizenship Clause of the Fourteenth Amendment contains just thirty words:

"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."

Today, those words are commonly summarized much more simply:

Born here? American citizen.

But that shorthand skips both the historical reason the Fourteenth Amendment was adopted and several words the amendment's authors deliberately included.

The Fourteenth Amendment was ratified in 1868, only three years after the Civil War ended. Its Citizenship Clause was written against the backdrop of slavery, emancipation, and one of the most infamous Supreme Court decisions in American history: Dred Scott v. Sandford.

The central citizenship problem confronting the country was not foreign tourists arriving in America to give birth.

It was whether millions of formerly enslaved people—and their American-born descendants—were citizens of the country in which they had been born.

The Problem the Fourteenth Amendment Was Written to Solve

In Dred Scott v. Sandford (1857), the Supreme Court held that people of African descent whose ancestors had been brought to America as slaves could not be citizens of the United States under the Constitution.

The Civil War and the abolition of slavery destroyed the institution upon which that decision rested, but emancipation alone did not settle the citizenship question.

Congress first addressed the issue through the Civil Rights Act of 1866. The Fourteenth Amendment then placed a constitutional guarantee of citizenship beyond the reach of ordinary legislation.

Its Citizenship Clause overturned the fundamental premise of Dred Scott: America could no longer maintain a hereditary population of people born in the United States yet permanently excluded from American citizenship because of ancestry or race.

That historical purpose matters.

The amendment was ensuring that a freed slave born in Virginia, Georgia, Mississippi, or anywhere else in the United States could not be told that he was somehow a permanent foreigner in the only country he had ever known.

That is a very different circumstance from a foreign national deliberately entering the United States temporarily so that her child will be born on American soil.

Five Words That Matter

The Fourteenth Amendment does not simply say:

"All persons born in the United States are citizens."

Its authors added a qualification:

"…and subject to the jurisdiction thereof."

Those words have generated more than a century of legal argument.

At a minimum, they demonstrate that geographic location alone was not the entire constitutional test. There have always been recognized exceptions to citizenship based purely upon birthplace—for example, children of foreign diplomats.

The harder question is how broadly "subject to the jurisdiction" should be understood.

One interpretation treats virtually everyone physically present in the United States and subject to American law as falling within American jurisdiction.

The competing interpretation gives the phrase a deeper political meaning involving allegiance, residence, and the person's relationship to American sovereignty.

That distinction is at the center of the modern birthright-citizenship debate. You can explore the range of perspectives on this question further in The Debate section of this site.

What Wong Kim Ark Actually Decided

In 1898, the Supreme Court decided United States v. Wong Kim Ark, the most important birthright-citizenship case in American history.

Wong Kim Ark was born in San Francisco to Chinese parents.

But an important fact is often lost when the case is reduced to the slogan "born here means citizen."

His parents were not tourists who had arrived in the United States for his birth.

The Supreme Court described them as having a permanent domicile and residence in the United States at the time of his birth.

The Court held that Wong Kim Ark was an American citizen.

That decision provides powerful precedent for birthright citizenship for children born to legally resident foreign nationals. Supporters of today's broad interpretation argue that its reasoning extends much further and encompasses almost everyone born within American territory.

Critics dispute that conclusion.

They argue that Wong Kim Ark did not involve illegal immigration, temporary visitors, or parents who traveled to America specifically to obtain citizenship for their child. Those factual distinctions have become increasingly important in the modern constitutional debate.

The Question the Framers Never Faced

The world of 1868 was not the world of international air travel.

A pregnant woman could not board a commercial aircraft on another continent, arrive in the United States hours later, give birth, obtain documentation for an American-citizen child, and return home.

Yet that situation now exists.

It even has a name:

Birth tourism.

The U.S. Department of State defines birth tourism as travel whose primary purpose is giving birth in the United States to obtain U.S. citizenship for the child. Federal visa policy specifically says that birth tourism is not a permissible basis for obtaining a visitor visa.

That produces an extraordinary contradiction.

The United States can say that obtaining citizenship for a child is not a legitimate reason for the mother to enter the country, while the child's birth on American soil can nevertheless produce the very citizenship benefit the government says the trip should not have been undertaken to obtain.

That deserves serious constitutional scrutiny.

Citizenship Should Mean More Than Geography

The question is not whether America should welcome immigrants.

America has been a nation of immigrants throughout its history.

The question is whether the Constitution requires the United States to grant automatic citizenship to the child of any person who manages to be physically present inside the country's borders at the moment of birth, regardless of that person's legal status, permanent residence, allegiance, or reason for being here.

Those are not the circumstances that produced the Fourteenth Amendment.

Former slaves were not visitors.

They had not traveled to the United States seeking an advantageous citizenship law.

They were Americans who had been denied recognition as Americans.

Many had families whose presence in America stretched back generations. The injustice was precisely that people born, raised, working, living, and dying in America were nevertheless denied membership in the political community because of their ancestry.

The Fourteenth Amendment corrected that injustice.

Treating that historical problem as constitutionally identical to twenty-first-century birth tourism requires an enormous leap.

Birth Tourism Exposes the Weakness of the Simplest Interpretation

Consider the principle at its most extreme.

Suppose two foreign nationals have no intention of immigrating to the United States.

They maintain their home, citizenship, economic life, and permanent allegiance elsewhere.

They travel to America shortly before the birth of their child specifically because American law will give that child citizenship.

The child is born.

The family then returns to its home country.

Under the broadest interpretation of birthright citizenship, that brief physical presence creates a permanent constitutional relationship between the child and the United States.

The hospital room effectively becomes a citizenship office.

Whatever one's position on immigration, it is reasonable to ask whether the Reconstruction Congress that wrote the Fourteenth Amendment understood the Citizenship Clause to require that result.

The Debate We Should Actually Be Having

The birthright-citizenship debate is often reduced to two slogans.

One side says:

"The Constitution says anyone born here is a citizen."

The other says:

"The Fourteenth Amendment was only for freed slaves."

Neither formulation captures the entire constitutional problem.

The Fourteenth Amendment unquestionably arose from Reconstruction and the need to establish the citizenship of formerly enslaved Americans and their descendants.

But subsequent Supreme Court precedent also established citizenship for American-born children of at least some foreign nationals, most importantly lawful permanent residents.

The unresolved political and constitutional fight concerns where that principle ends.

Does permanent residence matter?

Does lawful presence matter?

Does allegiance matter?

Does the phrase "subject to the jurisdiction thereof" impose a meaningful limitation?

And should a person temporarily present in the United States for the deliberate purpose of obtaining citizenship for a child receive the same constitutional treatment as the people the Citizenship Clause was originally written to protect?

Those questions should not be dismissed as hostility toward immigrants.

They are questions about what American citizenship means.

The Larger Question

The Fourteenth Amendment transformed American citizenship.

It ensured that the descendants of people who had lived in America for generations could never again be declared outsiders because of their ancestry.

More than 150 years later, America is debating something very different: whether simply reaching American territory before giving birth is sufficient to establish citizenship for the next generation.

Those two circumstances are separated by history, purpose, allegiance, and intent.

Whether the Constitution nevertheless requires us to treat them identically is one of the most consequential citizenship questions of our time.

And it brings us back to the question at the heart of this website:

What does it actually mean to belong to a nation—and at what point does someone become native to it?