Introduction
On January 20, 2025, President Trump signed Executive Order No. 14160, terminating birthright citizenship. The executive order denies citizenship to anyone born in the United States whose parent is an unauthorized or lawful immigrant. This includes, at the time of birth, permanent residents and anyone visiting on a student, work, or tourist visa. While the executive order was supposed to go into effect on Feb. 19, a federal judge soon blocked it. As of Feb. 20, 2025, a three-judge panel of the Ninth Circuit Court of Appeals declined to grant the government emergency relief and left the order blocked, meaning that the case is most likely going to the Supreme Court of the United States.
Birthright Citizenship in Antebellum Common Law
Birthright citizenship has been a time-honored tradition in the United States. Prior to the ratification of the Fourteenth Amendment in 1868, the U.S. had embraced the British common-law doctrine of jus soli (law of the soil) for anyone born within its jurisdiction. This rule allowed a child to attain citizenship by birth regardless of parental citizenship, assuming that their parents were white. Across the New World, jus soli is widely adopted as a means to attract settler-colonists. In contrast, the principle of jus sanguinis, meaning “right of blood,” continues to apply in Europe and grants citizenship based on the citizenship of one or both parents.
Many early cases in the U.S. reflected and upheld the English common law rule. An 1806 case in Massachusetts, Gardner v. Ward, centered on whether Salem resident H. Gardner was a citizen of the United States and thus eligible to vote. The Supreme Judicial Court of Massachusetts concluded that “a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born.” In the 1844 New York case Lynch v. Clarke, the court held that common law applied in the United States, stating that “as this Court has long recognized,” the Constitution should be read “in the light of” English common law because it is “framed in the language of the English common law” and it was the “universal impression of the public mind” that anyone born in the U.S. was its citizen.
It is important to note that citizenship was largely administered by states, not the federal government, in the Antebellum period. It was not until the notorious 1857 Dred Scott v. Sandford case when the federal government intervened and defined its own vision of common law birthright citizenship.
Dred Scott v. Sanford decision (1857)
In 1847, Dred Scott, an enslaved person who once resided in the free state of Illinois, sued his enslaver, John Sanford, at the Missouri Circuit Court for his freedom. Citing the Missouri Compromise Act, a federal law that outlawed slavery in Illinois and Fort Snelling territory, Scott argued that after he and his family were taken to these areas, they became free and could not be legally re-enslaved after returning to Missouri. While the state circuit court ruled in favor of Sanford, Scott appealed his case and worked his way through the Missouri state courts. He eventually filed a new federal lawsuit that eventually reached the U.S. Supreme Court in 1856, and the justices considered two critical questions:
- Can the slaves whose ancestors were imported into this country and their descendants become citizens under the constitution?
- Is the Missouri Compromise Constitutional?
While the Dred Scott decision has mostly been interpreted as a conflict between abolitionism and slavery, the decision would have immense repercussions on the meaning of American citizenship for both African Americans and non-white immigrants.
In March 1857, the U.S. Supreme Court ruled 7-2 in favor of Sanford. Chief Justice Taney, writing for the majority opinion, concluded in the infamous decision that an African American, whether enslaved or free, “[was] not a ‘citizen’ within the meaning of the Constitution of the United States.” Declaring the Missouri Compromise unconstitutional, he argued that “the government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner.” Taney further asserted that Congress had no authority to ban slavery from a federal territory, and“no state can . . . introduce a new member into the political community created by the Constitution.” Just because Illinois granted Scott and his family freedom did not mean they were granted citizenship.
Dred Scott thus constructed a draconian legal regime that deprived African Americans, free or enslaved, of the little civil rights they had. But in its repression, the decision also ironically set the condition of possibilities for emancipation by stoking the already high sectionalist tension. For many Northern abolitionists, the Dred Scott decision was the nail in the coffin; it proved that the ever-expanding “slavocracy” was conspiring to subjugate free labor. As Abraham Lincoln eloquently put in his 1858 debate with Stephen Douglass, “a house divided against itself could not stand.” Soon, the country found itself engulfed in a war that began as a preservation of the union and ended with the destruction of slavery.
The Civil Rights Act of 1866 and the Fourteenth Amendment
After five years of bloody civil war, American legislators finally settled the question of slavery once and for all. The Thirteenth Amendment formally abolished slavery, but it left open the question of citizenship for millions of freedpeople.
One year after the U.S. ratified the Thirteenth Amendment, the Reconstruction Congress set to work. In its first legislative effort to define citizenship, Congress passed the Civil Rights Act of 1866. Overriding President Andrew Johnson’s veto, Congress granted “all persons born in the United States” to be citizens, with the exception of American Indians, “without distinction of race or color, or previous condition of slavery or involuntary servitude.”
Radical Republicans in Congress reinforced the Civil Rights Act of 1866 with a constitutional amendment. The Fourteenth Amendment, ratified in 1868, formally overturned the Supreme Court’s ruling in Dred Scott and enshrined birthright citizenship. As Section One of the Fourteenth Amendment states, “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.” This amendment constitutionalized and federalized the English Common Law but left a few exceptions: “Children born of diplomatic representatives of a foreign state”; “Children born of alien enemies in hostile occupation”; and “Children of members of Indian tribes subject to tribal laws,” since the Supreme Court recognized Indigenous tribes as independent sovereign powers.
Due to the expansive and liberatory language of the Fourteenth Amendment, some Congressmen voiced reservations about the general applicability of Section One. During the Congressional debates on the 1866 Civil Rights Act, there were conflicting views and objections to the proposed Fourteenth Amendment. A particular concern among the senators was the rising Chinese immigrant population on the West Coast. For instance, Senator Cowan, who opposed the Fourteenth Amendment, stated, “The children of German parents are citizens, but Germans are not Chinese.” Senator Trumbull then countered that “the law makes no such distinction, and the child of an Asiatic is just as much a citizen as the child of a European.”
While the Fourteenth Amendment put in place an expansive vision of citizenship and freedom, the anti-Chinese prejudice expressed by Senator Cowan shows that the amendment was not self-enforcing. In the face of the “Yellow Peril,” Chinese American struggle for citizenship would once again define the meaning of birthright citizenship, notably in the 1898 Wong Kim Ark case.
United States v. Wong Kim Ark (1898)
In 1873, Wong Kim Ark was born in San Francisco, CA, to Chinese immigrant parents who were residents of the United States. His father, Wong Si Ping, and his mother, Wee Lee, resided in the United States until 1890, when they departed for China with Wong Kim Ark. Later that year, Wong Kim Ark returned to the United States alone and was allowed to enter. After spending another four years in the United States, he made another temporary visit to see his family in China in August 1895. However, Wong Kim Ark was denied entry and detained on a steamship by Customs officials, who claimed that, despite his birth in San Francisco, Wong was not a citizen, but a Chinese laborer barred from entry by the Chinese Exclusion Act of 1882—a permanent ban on the immigration of Chinese laborers to the U.S., making it the first and only major federal legislation to explicitly suspend immigration for a specific nationality.
Wong Kim Ark applied to the United States District Court for a writ of habeas corpus, a judicial order requiring law enforcement authorities to release the person unless lawful grounds are shown for their detention. Wong argued that he was detained on the ship without due process of law by the Customs and Oriental Steamship Company.
Upon receiving Wong’s petition, the federal district court issued a writ of habeas corpus and discharged him, ruling that he was a U.S. citizen and, therefore, improperly detained. The government appealed the ruling, arguing that citizenship is determined as much by the nationality of his parents as his birthplace. “The government, while conceding the fact of birth,” the appellant’s brief stated, “denied the conclusion of citizenship in that respect, contending that as the respondent was born of alien parents, to wit, subjects of the Emperor of China, he was at his birth a subject of China, claimed by that nation to be such, and therefore not when born ‘subjection to the jurisdiction’ of the United States within the meaning and intent of the Constitution.” The government also alludes to the Slaughterhouse decision, in which Justice Miller, in Dicta (meaning non-binding parts of an opinion), mentions that “the phrase ‘subject to its jurisdiction,’ was intended to exclude… citizens or subjects of foreign states born within the United States.”
The government charged that citizenship was determined by nationality, not merely by birthplace. They claimed that Wong Kim Ark, though born in the U.S., was a subject of China due to his parents’ allegiance to the Chinese emperor, arguing that the exceptions to the Fourteenth Amendment ought to apply. The government acknowledged that it was “generally supposed to be the law that a person born within the United States is ipso facto a citizen thereof, irrespective of the nationality of his parents.” However, the phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment, they argue, referred to full political jurisdiction, not just legal jurisdiction. Since Wong Kim Ark’s parents were Chinese subjects, he was not fully under U.S. political jurisdiction. Further, despite the long common-law tradition of birthright citizenship in Antebellum America, they claim that the principle of jus soli is based on a misinterpretation of English common law, which was a “monarchial form of government” and not suited for a “republic form of a government” like the U.S. They argue that the doctrine “never did have any justification, and is not sustained by any principle of international or constitutional law” and raised the question: “Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth?”
In response, Wong Kim Ark argues that he was a U.S. citizen and the Chinese Exclusion Act, therefore did not apply to him, citing his birth in San Francisco and the Fourteenth Amendment. Wong also appealed to the common law doctrine of Jus Solis and cited the court’s opinion in Lynch v. Clarke, that the “universal impression of the public mind” was that anyone born in the U.S. was a citizen of the U.S. While the federal government claimed that children of non-citizen immigrants were not subject to U.S. jurisdiction, Wong refuted this by demonstrating that, under legal tradition and precedent, jurisdiction simply meant being subject to U.S. laws, which applied to all, including non-citizens and sojourners. Therefore, although Wong Kim Ark’s parents were Chinese citizens, they were permanently domiciled in San Francisco and were not employed in a diplomatic capacity. Thus, they and their son were subject to U.S. laws and jurisdiction.
Wong also further cautioned that refusing citizenship to U.S.-born children of foreign parents would “denationalize” many individuals who were once recognized as citizens. This could impact hundreds of thousands of people, stripping them of voting rights, tax obligations, employment opportunities, and more, thereby unsettling social and political stability.
Ultimately, this question hinged again on the interpretation of the phrase “subject to the jurisdiction thereof” and left the Supreme Court with the following question:
“A child born in the United States, of parents of Chinese descent, who…have a permanent domicil and residence in the United States… and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.”
The Supreme Court ultimately held a 6-2 decision (Justice McKenna took no part in the decision nor consideration of the case), ruling in favor of Wong Kim Ark. The Dissent, written by Chief Justice Fuller and joined by Justice Harlan, argued that the English Common Law used by the English colonies until the Declaration of Independence and that the United States broke off with the English common law, and “prevail under the Constitution as originally established.”
Justice Horace Gray’s majority opinion, however, states that Wong Kim Ark, having “a permanent domicil[e] and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.” Although the Chinese Exclusion Acts prohibits persons of the Chinese race, from coming into the United States, “do not and cannot apply to him” because he is a U.S. citizen.
Legal precedents like Dred Scott and Wong Kim Ark, as well as the legislative history of the Fourteenth Amendment, were therefore central to evaluating the constitutionality of President Trump’s recent executive order. Indeed, while the executive order mentions Dred Scott, it challenges and directly disputes the Supreme Court’s decision in Wong Kim Ark. In the following section, I will provide a constitutional analysis of President Trump’s executive order. I will summarize the major arguments in support of President Trump’s executive order and refute each one of them based on the legal history of birthright citizenship.
Birthright Citizenship Today
The vast majority of conservative arguments defending President Trump’s executive order argue for a radical reinterpretation of the Fourteenth Amendment. Many conservative outlets, including Fox News, claim that the citizenship clause “was designed to extend citizenship to African-American former slaves.” On February 7, 2025, America First Legal (AFL), an American conservative public interest organization founded in 2021, submitted two amicus briefs endorsing President Donald Trump’s executive order that terminates birthright citizenship for children of “illegal immigrants.” Dan Epstein, AFL’s vice president, in an interview with Fox News Digital, stated that “Congress has not specifically authorized that any individual born to illegal aliens on U.S. soil is by definition a citizen. That’s nowhere in the statute.”
This argument is, unfortunately, unconvincing. Indeed, as I mentioned above, framers of the Fourteenth Amendment such as Senator Trumbull already considered Chinese immigration when drafting the amendment. Additionally, while conservatives emphasize the amendment’s historical purpose in granting citizenship to formerly enslaved African Americans, its legal application has extended far beyond that group. The Due Process and Equal Protection Clauses have been invoked to protect not just Black Americans but also white supremacists (Brandenburg v. Ohio), ex-Confederates (Ex parte McCardle), and corporations (Santa Clara Co. v. South Pac. Railroad). Suppose the Fourteenth Amendment has been interpreted expansively to cover such a broad range of rights and groups, why should its Citizenship Clause, then, be narrowly confined to its original nineteenth-century context? Indeed, originalism is not a traditional legal theory but rather a modern judicial approach invented by conservative jurists in the late twentieth century. Originalists argue that constitutional interpretation must adhere to the original meaning of the Constitution. However, this approach assumes that the constitutional framers’ worldview remains relevant today. This is not to mention that many of the constitutional framers held racist or misogynist views that would no longer be tolerated today. Finally, such a radical reinterpretation of the Fourteenth Amendment not only contradicts the principle of Stare Decisis (let the law rest), but also requires overturning a century of precedents, including Wong Kim Ark (1898).
A narrower conservative defense for President Trump’s executive hinges on the Supreme Court’s ruling in the United States v. Wong Kim Ark, specifically on the emphasis of permanent domicile and allegiance. These conservative jurists recognize Fourteenth Amendment precedents like Wong Kim Ark, but seek to distinguish the current executive order from it. In a recent New York Times opinion piece, law professors Randy E. Barnett from Georgetown University and Ilan Wurman from the University of Minnesota suggest that President Trump’s executive order does not necessarily contradict the plain wording of the Fourteenth Amendment and that “Mr. Trump’s order is stronger than his critics realize.”
They argue that the phrase “subject to the jurisdiction thereof” implies not just presence on U.S. soil, but also mutual allegiance and societal protection—a compact that undocumented immigrants supposedly violate upon unlawful entry. They refer to Calvin’s Case (1608), which held that foreigners who entered in “amity”—friendship—could “[give] a ‘local’ allegiance to the sovereign and an ‘obedience’ to the laws while residing in his realm” in exchange for passing citizenship to their children. Wong’s citizenship, they claim, was affirmed based on the fact that his parents were lawful, permanent domicile of San Francisco, distinguishing it from contemporary cases involving undocumented immigrants. Since “the allegiance expected of a citizen was obedience to the laws,” undocumented immigrants fail to meet jurisdictional criteria. This is, of course, a weaker iteration of President Trump’s position, as this claim would not apply to documented immigrants or sojourners. Indeed, Barnett and Wurman acknowledged that this argument does not address the executive order’s exclusion of children born to mothers who are “lawful but temporary.”
However, even this much narrower claim that undocumented immigrants are disobedient, lack allegiance to the laws, and are not in “amity” with the U.S. is dubious. The conservative argument assumes that allegiance is a voluntary contract that undocumented immigrants fail to uphold by breaking immigrant laws. However, allegiance to the United States is not a choice but rather a legal obligation imposed on all individuals within U.S. borders. The fact that undocumented immigrants can be tried, prosecuted, and punished under U.S. law demonstrates that they are still subject to American jurisdiction. While the Supreme Court in Wong Kim Ark emphasized that his parents were permanent residents, it did not establish permanent domicile as a prerequisite for birthright citizenship. Instead, the ruling focused on the English common-law tradition of jus soli, rejecting arguments that political allegiance or parental status should determine a child’s citizenship. The conservative argument distorts the case by reading into it a requirement that did not exist. Nowhere did the Court rule that Wong Kim Ark’s citizenship hinged on his parents’ lawful residency; rather, it reaffirmed that birthplace, not parental status, mattered. Furthermore, courts have never interpreted amity as an explicit requirement for birthright citizenship. If it were, countless U.S.-born citizens from parents with temporary or uncertain legal status would be at risk of losing their citizenship—an outcome the Supreme Court has never endorsed. The Supreme Court has never required permanent residency as a condition for birthright citizenship, and the reliance on Calvin’s Casemisapplies an outdated concept of allegiance from English common law four centuries ago, just like the Government argues against Wong Kim Ark that a “monarchial form of government” and not suited for a “republic form of a government.”
Finally, a Wall Street Journal opinion piece by Chuck Cooper, chairman of Cooper & Kirk, and Pete Patterson, a partner at the firm, argues that those lawful but temporary sojourners are subject to the jurisdiction of the U.S. to a “limited extent.” They cite Chief Justice John Marshall’s explanation in Schooner Exchange v. McFaddon (1812) that foreigners here on “business or caprice” owe a “temporary and local allegiance” to the U.S. and are thus “amenable to the jurisdiction of the country” while they are present. Similar to Native Americans living in sovereign tribes in the nineteenth century, these individuals were not considered U.S. citizens because they were not fully under U.S. jurisdiction. Since their legal status is uncertain, they can be deported at any time, rendering their presence in the U.S. ephemeral and not equivalent to the jurisdiction required by the Citizenship Clause. Yet, the claim that their presence is “ephemeral” and thus insufficient for jurisdiction is inconsistent with the Supreme Court’s precedents following Wong Kim Ark (1898). In Plyer v. Doe (1982), the Court ruled that undocumented immigrants are “persons” under U.S. jurisdiction and thus entitled to constitutional protections such as due process and equal protection under the law. These rulings confirm that no citizens, regardless of their immigration status, are fully subject to U.S. jurisdiction.
The ongoing court battles over Executive Order No. 14160 will likely continue to hinge on whether the Supreme Court chooses to uphold or reinterpret the well-established precedent of birthright citizenship—“subject to the jurisdiction thereof.” This legal question is more than a technical debate over jurisdiction—it is a broader struggle over the very meaning of American citizenship, inclusion, and the nation’s commitment to its constitutional principles.
