The Originalist Case for Birthright Citizenship
On his first day in office, President Donald Trump ordered a wholesale change in the federal government's immigration policies. The central symbolic issue was birthright citizenship. In an executive order titled "Protecting the Meaning and Value of American Citizenship," Trump forbade the government from recognizing the citizenship of any child born in the United States to parents who are not American citizens or permanent-resident aliens. The order has thus far attracted three major lawsuits as well as four unfavorable district-court decisions. On May 15, 2025, the Supreme Court will hear oral arguments in these cases.
Trump's executive order was intended to deliver on his campaign promise to reduce illegal immigration and deport millions of immigrants who have entered the country unlawfully. But the truth is that birthright citizenship has little to do with the real problems plaguing our nation's immigration system. The Pew Research Center estimates that, within the 22 million U.S. households that include an unauthorized immigrant, 1.3 million individuals were born to illegal aliens, even as an estimated 3 million illegal aliens crossed the southern border annually during the Biden administration.[correction appended] Our immigration system broke down not because of our nation's practice of granting citizenship to all born within the country's borders, but because the Biden administration refused to secure the southern border and enforce existing law. Ending birthright citizenship would thus do little to slow illegal migration.
Nevertheless, conservative scholars have focused their efforts on overturning the nation's longstanding constitutional tradition. John Eastman of the Claremont Institute, for example, argues that "the 14th Amendment's Citizenship Clause does not provide automatic citizenship for everyone born on U.S. soil, no matter the circumstances." Instead of tracking the traditional Anglo-American rule that citizenship depends solely on the place of birth (jus soli), Eastman claims that it also depends on the lineage of the child's parents (jus sanguinis). Other scholars, such as Edward Erler, Peter Schuck, Rogers Smith, and Kurt Lash take a similar view.
This argument misconstrues the law and policy of the 14th Amendment. According to the best reading of its text, structure, and history, all individuals born on American soil, no matter their ethnicity, station in life, or parents' citizenship status, are American citizens. The exceptions to this rule, discussed below, are marginal, and tend to prove the rule rather than refute it.
THE COMMON-LAW RULE OF JUS SOLI
While the original Constitution required "citizenship" for federal office, it did not define the term until 1868, when the 14th Amendment was ratified. That amendment's Citizenship Clause provides: "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." The provision effectively constitutionalized the British common-law rule of jus soli, under which, as 18th-century English jurist William Blackstone explained, "the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such."
The common-law rule of jus soli derives from a 1608 English decision known as Calvin's Case, which arose when King James VI of Scotland ascended to the throne of England as King James I. This union between England and Scotland through a single monarch was purely personal and dynastic; it did not represent the legal or political integration of the two kingdoms, which remained distinct until they were united by the Acts of Union in 1707. Calvin's Case asked whether persons born in Scotland under King James VI — his subjects in Scotland — were to be considered aliens in England or subjects of King James I.
The lead opinion in the case, which was widely accessible to American lawyers of the founding, was Edward Coke's. As Coke explained:
Every one born within the dominions of the King of England, whether here or in his colonies or dependencies, being under the protection of — therefore, according to our common law, owes allegiance to — the King and is subject to all the duties and entitled to enjoy all the rights and liberties of an Englishman.
One became a natural-born English subject, therefore, upon being born within any of the king's dominions. The birth of a subject created a reciprocal relationship between the subject and the king whereby the subject had a right to the king's protection while the king had a right to the subject's allegiance. Calvin's Case embodies this doctrine, known today as jus soli.
American courts' and commentators' embrace of jus soli traces back to the early days of the republic. Gardner v. Ward, for instance, was an 1806 Massachusetts case involving a merchant born in the American colonies before the Revolution. Local officials contended that the merchant's absence from his birthplace and residence in the British colonies for part of the Revolutionary War's duration meant that he was an alien who could not vote in a local election. The court disagreed, deciding instead in the merchant's favor:
I take it then to be established, with a few exceptions not requiring our present notice, that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance, which is claimed and enforced by the sovereign of his native land; and becomes reciprocally entitled to the protection of that sovereign and to the other rights and advantages, which are included in the term citizenship. The place of birth is coextensive with the dominions of the sovereignty, entitled to the duty of allegiance.
Justice Joseph Story's dissent in the 1830 case Inglis v. Trustees of Sailor's Snug Harbor further elucidated jus soli. Story wrote that two conditions "usually concur to create citizenship — first, birth locally within the dominions of the sovereign, and secondly birth within the protection and obedience, or in other words within the ligeance of the sovereign." Both conditions are met when the child is "born within a place where the sovereign is at the time in full possession and exercise of his power" and when the child "at his birth derive[s] protection from, and consequently owe[s] obedience or allegiance to the sovereign as such, de facto." Again, the parents' legal status had no bearing on the citizenship of a baby born on American territory.
Even shortly before the 14th Amendment was ratified, American judges affirmed the jus soli doctrine. In United States v. Rhodes, decided in 1866, Supreme Court justice Noah Haynes Swayne stated:
All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.
JUS SOLI AND THE DECLARATION OF INDEPENDENCE
Critics of birthright citizenship claim that either the Declaration of Independence or the American Revolution marked a radical caesura in American legal history by replacing the common-law rule of jus soli with an altogether different notion of citizenship. But this claim is based on an ahistorical understanding of American independence.
Generally speaking, common-law rules remained in effect during and after the Revolution. In 1815, Justice Story held in Terrett v. Taylor that the dissolution of the royal government of Virginia did not bring about "an abolition of the common law under which the inheritances of every man in the state were held." Likewise, as Chief Justice Oliver Ellsworth stated in the 1799 Case of Isaac Williams, the "common law of this country remains the same as it was before the revolution."
The doctrine of jus soli was no exception. In 1838, the Supreme Court of North Carolina, after affirming that all free persons born within the king's dominions were native-born British subjects, declared:
Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on a European King to a free and sovereign State....British subjects in North Carolina become North Carolina freemen....[A]nd all free persons born within the State are born citizens of the State.
William Rawle's View of the Constitution of the United States, published in 1829, summarized how U.S. citizenship was understood at the time the Constitution was ratified:
The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths, accompanied them in the formation of the great, compound commonwealth which ensued. They became citizens of the latter [i.e., the United States], without ceasing to be citizens of the former [i.e., the states], and he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.
Some critics of birthright citizenship point to the Declaration not as abrogating English common law, but as constituting the colonists' renunciation of citizenship. Yet jus soli holds that once the bond between sovereign and subject has been established, it cannot be dissolved by the subject alone: Birth creates a lifelong bond of allegiance. As Blackstone explained, the "natural allegiance" that one has to the Crown if born within its dominions is "a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature."
Other critics claim that jus soli flies in the face of the Declaration's position that government's legitimacy rests on the consent of the governed. But that argument does not reflect the jurisprudence of the early republic — including cases decided by judges with deep, personal knowledge of the Revolution and the framing.
In the Case of Isaac Williams mentioned above, Chief Justice Ellsworth concluded that a native-born American citizen could not expatriate himself, become a French citizen, and commit hostile acts against Great Britain under French authority. He maintained that a member of a "civil community" "cannot dissolve this compact" between himself and his native country "without the consent or default of the community." Ellsworth was not just chief justice of the Supreme Court; he also served as a delegate to the Continental Congress, the Constitutional Convention, and the Connecticut constitutional convention. Additionally, as one of Connecticut's first U.S. senators, he wrote the Judiciary Act of 1789.
Similarly, in the 1830 case Shanks v. Dupont, the Supreme Court (speaking through Justice Story) described the "general doctrine" that "no person can, by any act of their own, without the consent of the government, put off their allegiance and become [an alien]." Thus a woman born in colonial South Carolina before the Revolution, Story declared, remained a British subject during and after the Revolution, although the revolutionary state of South Carolina also claimed her exclusive allegiance. Under the Treaty of 1783, according to Story, Great Britain "virtually absolved from all allegiance to the British Crown" those of its American-born subjects who adhered to the United States' side while retaining the allegiance of British loyalists. "If they were originally subjects of Great Britain," Story wrote, "and then adhered to her, and were claimed by her as subjects, the treaty deemed them such. If they were originally British subjects, but then adhering to the states, the treaty deemed them citizens [of the states]."
Opponents of birthright citizenship respond by insisting that American rebels who were born subjects of the Crown before July 4, 1776, must have had a natural right to renounce British citizenship — one they exercised through the Declaration. If so, they were then required to reconstruct their state governments from the ground up. Citizenship in those states would be founded on society's offer to grant membership on certain terms and the willingness of the individual to accept those terms. Citizenship in this view is ultimately not a birthright or an inheritance, but a choice. Anything other than a consensual foundation for citizenship, the argument goes, would conflict with the Declaration's insistence that "Governments are instituted among Men, deriving their just powers from the consent of the governed."
Yet Justice Story's dissent in Inglis v. Trustees of Sailor's Snug Harbor rejected this understanding of the Declaration:
[I]n each colony there was a separate and independent government established under the authority of the Crown, though in subordination to it. In this posture of things, the Revolution came, and the declaration of independence acting upon it, proclaimed the colonies free and independent states, treating them not as communities, in which all government was dissolved and society was resolved into its first natural elements, but as organized states.
He then concluded: "It is plain that [the Declaration] did not contemplate an entire dissolution of all government in the states, which would have led to a subversion of all civil and political rights and a destruction of all laws." Instead, in the "peculiar circumstances" of the Revolution, the general practice was "to consider all persons, whether natives or inhabitants, upon the occurrence of the Revolution, entitled to make their choice" of allegiance to either the Crown or to the United States.
Declaring independence, in other words, did not require American citizenship to rest solely on the foundation of mutual agreement between the sovereign and the governed. Still less did it entail the dissolution and reconstitution of government in the American states. True, independence opened the door for individuals to choose, to some degree, whether to remain English subjects or to become American citizens. But this did not reconceptualize American citizenship: Birth on the territory belonging to, and effectively governed by, an American jurisdiction was at least prima facie proof of membership in the body politic of that jurisdiction.
THE 14TH AMENDMENT
Given the unbroken history of birthright citizenship in the revolutionary, early national, and antebellum periods, the case against the doctrine reduces to the claim that the 14th Amendment upended the common-law understanding of citizenship. In fact, it did no such thing.
The framers of that amendment sought to correct the most grievous travesty in American constitutional history: Dred Scott v. Sandford. In that case, Chief Justice Roger Taney infamously concluded that black slaves and descendants of slaves — even those born free in the United States — could never be American citizens. Taney justified his decision in part by insisting that the framers did not regard blacks as among the "people or citizens" of the United States "when they were conferring special rights and privileges upon the citizens of a State in every other part of the Union." The text of the Constitution, of course, asserts nothing of the sort.
From the moment Dred Scott was handed down, judges and legislators across the country defied its holding, instead affirming the birthright citizenship of free native-born blacks. In 1862, Attorney General Edward Bates (citing Calvin's Case) issued an opinion affirming that the Constitution
recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation....[E]very person born in the country is, at the moment of birth, prima facie a citizen....[N]ativity furnishes the rule, both of duty and of right, as between the individual and the government.
The 14th Amendment overturned Dred Scott in 1868, declaring that all individuals born within the United States are American citizens. It would be strange to read that amendment, drafted and ratified in the wake of Union victory, as having rolled back the understanding of citizenship that had been advocated for decades by the anti-slavery movement, sustained by some judges even after Dred Scott, and articulated forcefully by the man who served as Abraham Lincoln's wartime attorney general. Yet this is what critics of jus soli would have us believe.
What's more, reading the 14th Amendment along jus sanguinis lines would have excluded certain groups of freed slaves from citizenship. Historical evidence indicates that, even after the 1808 ban on the slave trade, traffickers brought thousands more slaves from Africa to the American South. Though presidents and Congress attempted to suppress this illegal smuggling, its success created a class of black slaves who were born on U.S. territory to parents who were residing in the country illegally. If the 14th Amendment were read to demand more than birthright citizenship, it would have failed in its primary mission: to recognize the citizenship of all freed slaves.
EXCEPTIONS TO BIRTHRIGHT CITIZENSHIP
The context in which the 14th Amendment was ratified, combined with the irrational outcomes that would result if the amendment were read to abrogate jus soli, leaves one remaining option to opponents of birthright citizenship: the phrase "subject to the jurisdiction thereof." According to Eastman and Erler, that clause means citizenship requires being born on American territory to citizen parents. Aliens, who in their view owe allegiance to another nation, are not "subject to the jurisdiction" of the United States.
This reading of the clause would effectively assert that the Reconstruction Congress sought to expand citizenship to freed slaves by birthright while radically narrowing its definition for everyone else — an unlikely scenario. More fundamentally, though, it does not accord with the traditional understanding of the phrase "subject to the jurisdiction thereof." Aliens within the territory of the United States are, and always have been, "subject to [its] jurisdiction" because they have a right to enjoy its protection and a reciprocal duty to obey its laws.
Regarding the right to protection, the Supreme Court has repeatedly made clear, as it did in Kwong Hai Chew v. Colding in 1953, that "once an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders." This is also true to some degree of illegal aliens and their children. In the 1976 case Mathews v. Diaz, the Court held that "[e]ven one whose presence in this country is unlawful, involuntary, or transitory is entitled to [due process]." As far back as 1903, the Court declared in Yamataya v. Fisher that "an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here," has the right to be heard before being deported.
It is equally obvious that aliens present in the United States, whether lawfully or unlawfully, have the duty to obey our laws while here. They do not, as it were, carry an extra-territorial immunity about with them. If aliens did not have a duty to obey our laws while on our territory, they could violate the law and claim that the government had no jurisdiction to arrest, try, or punish them. One could not decry the crimes that illegal aliens commit while residing in this country.
Critics of birthright citizenship nonetheless insist that "subject to the jurisdiction thereof" must refer to having citizen parents or risk being redundant with the requirement of birth on U.S. territory. In other words, if the Reconstruction Congress had wanted to recognize birthright citizenship, why include "subject to the jurisdiction thereof" at all? Leaving these words out would have achieved the same result.
Yet when the 14th Amendment was drafted, domestic and international law recognized that certain classes of people could reside within American territory without being subject to American laws. These exceptions to birthright citizenship included the children of enemy soldiers, the children of foreign diplomats, and Native Americans.
The first exception concerns foreign troops occupying American territory. It goes back to Calvin's Case itself, in which Lord Coke wrote:
But if enemies should come into any of the King's dominions, and surprise any castle or fort, and possess the same by hostility, and have issue there, that issue is not subject to the king, though he be born within his dominions, for that he was not born under the King's ligeance or obedience.
Inhabitants of an occupied territory were thought to owe a duty of obedience, albeit a provisional one, to the foreign power in actual possession and control of that territory. Children born to such inhabitants during the occupation were thus not considered born "under the King's ligeance or obedience" — or, as the Citizenship Clause expresses it, "subject to the jurisdiction" of the usual territorial sovereign.
This exception to birthright citizenship appeared in the early American case law. In Shanks v. Dupont, the Supreme Court found that England's "capture and possession" of Charleston during the Revolutionary War, though it did not bring about "an absolute change of the allegiance of the captured inhabitants," suspended that allegiance, and that the city's inhabitants owed a "temporary allegiance" to the British during their occupation.
A second recognized exception to birthright citizenship concerns children of foreign ambassadors born in the United States. Traditionally, foreign ambassadors were taken to be outside the criminal and civil jurisdiction of the receiving state. In the case of Respublica v. De Longchamps, decided in 1784, the United States accepted the international law of diplomatic immunity. Soon afterward, the ruling was codified by federal statute.
Although modified by both treaty and statute, diplomatic immunity remains substantially similar today to its form in the 18th and 19th centuries. It was commonly justified on the grounds of "personal representation": The diplomat was deemed the alter ego of the ruler (typically, the monarch) who had sent him. As such, the diplomat was entitled to enjoy the rights and privileges that the receiving state would accord his master should he visit there — including immunity from criminal and civil laws. In the 1812 case Schooner Exchange v. McFaddon, Chief Justice John Marshall offered a key rationale for granting immunity to foreign diplomats: "[W]ithout such exemption, every sovereign would hazard his own dignity by employing a public minister abroad."
Diplomatic immunity under the 1790 statute extended (and continues to extend) to a diplomat's children. It should therefore be clear why the American-born child of an accredited foreign diplomat is not "subject to the jurisdiction of the United States": By virtue of that child's diplomatic immunity, he is not bound by American law while present in this country.
The native-born children of aliens do not as a class enjoy any such immunity: While here, they are bound to follow U.S. law. In other words, they are "subject to the jurisdiction" of the United States.
A third important exception to birthright citizenship involves Native Americans. Between the founding and Reconstruction, native tribes exercised considerable sovereignty over their lands, and tribe members residing on tribal lands were not subject to U.S. jurisdiction. Thus these individuals were not seen as U.S. citizens. As New York chancellor James Kent wrote in Goodell v. Jackson in 1823:
Though born within our territorial limits, the Indians are considered as born under the dominion of their tribes. They are not our subjects, born within the purview of the law, because they are not born in obedience to us. They belong, by birth, to their own tribes.
Once the federal government reduced tribal sovereignty in the late 19th and early 20th centuries, birthright citizenship was extended to Native Americans. But this, of course, was well after the 14th Amendment had been drafted and ratified.
A PRESUMPTION OF CITIZENSHIP?
In response to these points, one could argue that the 14th Amendment's Citizenship Clause established a scheme in which a person's birth in the United States creates a presumption of citizenship that could be overcome by looking to the status of the person's parents. Law professor Kurt Lash's leading originalist account against birthright citizenship makes just such an argument. A closer look at the evidence, however, suggests this was not the case.
Lash asserts that, if the parents of a child were foreign subjects who entered the country and "openly refused to subject themselves to the law-speaking authority" of the United States, the presumption that the child was a citizen would be overcome. In this category, Lash places those non-tribal Native Americans at the time the 14th Amendment was adopted who had refused to remain under their tribal governments and had illegally entered non-tribal lands in the United States. Their contemporary counterparts, he argues, are "children born in the United States to foreign national parents who leave their home country and illegally enter the United States."
Yet the evidence Lash reviews does not support this interpretation. One point he stresses is that supporters of the proposed Citizenship Clause during the ratification debates repeatedly affirmed that the clause merely constitutionalized the Civil Rights Act of 1866. That act, which became law two years before the 14th Amendment was ratified, extended birthright citizenship to all individuals born in the United States, with the exception of those "subject to any foreign power" and "Indians not taxed." According to Lash, the former exception was meant to exclude "children born into families bearing a counter-allegiance to another sovereign."
The Civil Rights Act's sponsors, however, did not intend to upset the traditional common-law rule of jus soli; rather, they codified it. Shortly before the Senate voted on the act, Senate sponsor Lyman Trumbull stated, "every free-born person in this land is, by virtue of being born here, a citizen of the United States," and the bill under consideration "is but declaratory of what, in my judgment, the law now is." Echoing this sentiment, the House sponsor of the act, James Wilson, quoted Blackstone on jus soli when explaining the meaning of his bill, stating that the doctrine "bound the colonies before the revolution, and was not changed afterward," and that the act was "simply declaratory of that the law now is." If the Civil Rights Act merely codified the traditional common-law rule of jus soli, and the Citizenship Clause constitutionalized the Civil Rights Act, then the clause could not have changed the common law in the way Lash contends it did.
Lash's theory also raises questions that would be difficult to resolve. For instance, are American-born children of an alien residing in the country unlawfully and a U.S. citizen spouse or partner merely presumptive citizens whose claim to citizenship may be defeated? Why should a presumptive citizen not be allowed to choose U.S. citizenship instead of the foreign nationality (or nationalities) of his parents upon reaching the age of majority, rather than being excluded from U.S. citizenship? What if the foreign government of an American-born person's illegal-alien parents refuses to acknowledge the child as one of its own nationals — does the child owe allegiance to that government? If not, why is the child disqualified from being a U.S. citizen? It seems to us that, on Lash's reading, the Citizenship Clause would be difficult to administer, and to our knowledge, no effort has ever been made to enforce it along these lines.
SUBSEQUENT JUDICIAL INTERPRETATION
The original public meaning of the 14th Amendment affirms, rather than denies, birthright citizenship. Courts have never sought to overturn this original understanding.
In United States v. Wong Kim Ark, decided in 1898, the Supreme Court upheld the American citizenship of a child born in San Francisco to Chinese immigrant parents. The laws in place at the time had forbidden Wong Kim Ark's parents from claiming American citizenship. If the jus sanguinis reading of the 14th Amendment were correct, the Supreme Court would have held that Wong was not a citizen, either. Instead, the Court declared that "the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens." The Court rejected the claim that Wong was not within "the jurisdiction" of the United States because he purportedly owed allegiance to the Chinese Empire.
Birthright-citizenship critics respond to this objection by claiming that Wong Kim Ark did not involve illegal aliens because Ark's parents were residing in the United States legally. Therefore, their argument goes, the case on its facts does not reach today's problem of children born to illegal aliens. But at the time of Wong Kim Ark, the federal government had not enacted any comprehensive immigration laws that defined legal and illegal aliens. The legal status of Ark's parents made no difference to the decision.
Wong Kim Ark is not just an artifact that history has long forgotten: The modern Supreme Court, in dicta, has reaffirmed it. In Plyler v. Doe, decided in 1982, a 5-4 majority observed that the 14th Amendment's Equal Protection Clause forbids states from excluding the children of illegal aliens from public schools. "No plausible distinction with respect to the Fourteenth Amendment 'jurisdiction,'" the majority held, "can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
The 14th Amendment recognized the traditional American common-law doctrine of birthright citizenship. Until now, no Supreme Court, Congress, or president has ever acted to the contrary.
ORIGINALISM VERSUS PRAGMATISM
Our analysis, though partly relying on judicial precedent, is primarily an originalist one. If the Supreme Court is guided, as we think it ought to be, by originalist principles, it will almost certainly affirm Wong Kim Ark.
There are of course pragmatic reasons for the Court to reach a different conclusion. That the children of illegal aliens who happen to be born on American soil should automatically become U.S. citizens is an unpopular position among large portions of the electorate, especially among the president's supporters. Birthright citizenship also creates perverse incentives by encouraging illegal aliens to enter or remain in the country for the purpose of having children who will be born U.S. citizens. Critics of originalism may ask whether the courts should apply a constitutional rule to a situation when its framers could not have foreseen a radical change in circumstances — here, mass illegal immigration.
But if originalism produces consequences that seem harmful, unpopular, perverse, or unsuited to current American circumstances, then so be it. Constitutional pragmatism has proven to be a ruinous policy, and it has taken several decades, and many hard-fought judicial appointments, to break its grip. If the American people are dissatisfied with aspects of their Constitution, the remedy lies in their hands: Amend it. Pretending it says something it does not can only undermine the Constitution and the rule of law.
Correction appended: The text originally neglected to narrow the number of U.S. individuals born to unauthorized immigrants to those residing in households that include an unauthorized immigrant. We regret the error.[return to text]