07/08/2026
Birthright Citizenship in the United States: A Constitutional Principle Reaffirmed
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Birthright citizenship has long been a cornerstone of American constitutional law. Its legal foundation lies in the Citizenship Clause of the Fourteenth Amendment, ratified in 1868 in the aftermath of the Civil War, which 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 amendment was enacted primarily to overturn the Supreme Court's infamous decision in Dred Scott v. Sandford (1857), which had denied citizenship to people of African descent. By embedding birthright citizenship in the Constitution, the Fourteenth Amendment established a broad guarantee that citizenship would be acquired by birth on U.S. soil, subject only to a handful of narrow historical exceptions.
The scope of this constitutional protection was definitively addressed by the Supreme Court in United States v. Wong Kim Ark (1898). Wong Kim Ark was born in San Francisco to Chinese parents who were legally residing in the United States but were ineligible for naturalization under the laws of the time. After returning from a trip abroad, he was denied re-entry on the grounds that he was not an American citizen.
The Supreme Court rejected that argument. In a landmark 6-2 decision, it held that a child born in the United States is a U.S. citizen by virtue of the Fourteenth Amendment, regardless of the nationality of the parents, provided they are subject to U.S. jurisdiction. The Court recognized only limited historical exceptions, such as children born to foreign diplomats or enemy forces occupying U.S. territory.
For well over a century, Wong Kim Ark has served as the leading authority on the meaning of the Citizenship Clause and has been repeatedly relied upon by courts, scholars and successive administrations.
Although the Constitution provides this protection, it is equally true that Congress retains the constitutional authority to propose amendments to the Constitution. If lawmakers wished to alter or restrict birthright citizenship, the proper constitutional avenue would be through the amendment process set out in Article V of the Constitution, which requires approval by two-thirds of both houses of Congress and ratification by three-quarters of the states. Such a change cannot be accomplished through ordinary legislation where it conflicts with the Constitution, nor can it be achieved unilaterally by presidential action.
That constitutional principle was reaffirmed in the Supreme Court's recent decision in Trump v. Barbara (2026). The Court held that the President lacked the constitutional authority to redefine the scope of birthright citizenship through executive action and reaffirmed that the Citizenship Clause protects children born in the United States, including those born to parents who lack lawful immigration status or are present on temporary visas. The Court emphasized that the established interpretation of the Fourteenth Amendment, rooted in Wong Kim Ark, could not be displaced by executive order.
In light of that ruling, any subsequent executive order that attempts to exclude from citizenship a class of U.S.-born children falling within the category protected by the Court would almost certainly invite immediate constitutional challenges. Such an order would likely be scrutinized not only for its consistency with the Fourteenth Amendment but also for whether it conflicts with the Supreme Court's authoritative interpretation of that provision. While a President may direct immigration enforcement or target visa fraud, including commercial "birth tourism" schemes, executive action cannot override constitutional rights as interpreted by the judiciary.
The debate over birthright citizenship therefore remains one of constitutional law rather than executive policy. Unless the Constitution itself is amended through the rigorous Article V process, the Supreme Court's interpretation of the Citizenship Clause remains binding. Any attempt to circumvent that interpretation through executive orders would face formidable legal obstacles and would be expected to be challenged promptly in the federal courts.
- Precious Anamelechi, LL.B, LL.M