The text of Section One of the 14th Amendment declares: “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.” In the history of the U.S. Supreme Court, those words have meant what they say. Apart from a few narrow exceptions—children born to foreign ambassadors, children of soldiers actively occupying U.S. territory, and, until 1924, members of Native American tribes who owed direct allegiance to their tribes, rather than the United States— the clause has been interpreted to confer “Birthright Citizenship” on virtually everyone born on American soil, or under the American flag.
However, on the first day of his second term of office, President Donald Trump issued on January 20, 2025, Executive Order 14160 that would limit “Birthright Citizenship” to the children of U.S. citizens and lawful permanent residents (green-card recipients). Trump’s order was declared blatantly unconstitutional by various federal courts and has never been effectuated, anywhere. In Trump v. Barbara, the administration brought an appeal to the U.S. Supreme Court, which held oral argument last week. The Justices’s questions, across the bench, reflected, at a minimum, deep skepticism of the government’s argument, and indicated little, if any, support for Trump’s order. Rightly so. The order, as a federal judge had written, flouted the constitutional text and principles, congressional intent and longstanding Supreme Court precedent.
The most conspicuous, historic purpose of the Citizenship Clause, ratified in 1868, was to confer upon former slaves and their children, the status of citizenship, thus overruling the Court’s infamous Dred Scott decision, which held that Black people whose ancestors were seized and brought to this nation, and sold as slaves, were not entitled to any protection from federal courts because they were not, and never could become, U.S. citizens. Those who controlled the Reconstruction Congress—the Radical Republicans—however, revolutionized the nation and the Constitution through the 13th, 14th and 15th Amendments, which placed Blacks on par with whites in the eyes of the law.
The Citizenship Clause, emphatically, was not limited to the protection of the newly freedman. Senator Lyman Trumbull, one of the leading Radicals and the principal author of the provision, referred in the original bill that established birthright citizenship to people of “African descent.” He later changed that language to “all persons born in the United States,” which prompted Senator Edgar Cowan to ask Trumbull if the clause would make citizens of the “children of Chinese and Gypsies born in this country.” Trumbull’s reply says everything about the scope of the amendment. “Undoubtedly,” he said, confirming the expansive scope of Birthright Citizenship, which is centered on soil, not blood.
The Cowan-Trumbull exchange, like the broader legislative history that illuminates the original understanding of the 39th Congress that wrote the 14th Amendment, represents a direct repudiation of President Donald Trump’s claim that the citizenship clause was limited “to babies of slaves.”
The strict limitations on birthright citizenship imposed by Trump’s executive order, advanced by the administration in Trump v. Barbara, the case before the Supreme court challenging the order, finds no support in our legal history. In fact, the Court, in U.S. v. Wong Kim Ark (1898), held that the 14th Amendment protections extend to babies born in the United States to parents of noncitizens. As Justice Horace Gray observed, the clause is not restricted by “color or race.”
President Trump’s executive order, and the administration’s arguments in support of it, fly in the face of 150 years of historical understanding of the Citizenship Clause. Trump falsely claims that no other country has birthright citizenship. At least 30 other countries do. The government’s argument that birthright citizenship does not include those who are temporarily in the nation, or those here illegally, and thus not “under the jurisdiction” of the United States, contradicts the reasoning of the Court’s landmark opinion in Plyler v. Doe (1982). In Doe, Justice William Brennan wrote that undocumented children are “persons” under the jurisdiction of state law and the 14th Amendment’s Equal Protection Clause.
Birthright citizenship speaks to who, and what, we are as a nation. The premise and promise of the 14th Amendment is that America is not defined by bloodlines, but by values, laws and rights that should be applied to all, equally, beginning at birth.
— David Adler is president of The Alturas Institute, a non-profit organization created to promote the Constitution, gender equality and civic education. This column is made possible with the support of the South Dakota Humanities Council, South Dakota NewsMedia Association and this newspaper.
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