President Donald Trump’s recent executive order attacking birthright citizenship has reinvigorated the debate surrounding the constitutionality of birthright citizenship and whether it should apply to the children of undocumented immigrants who are born here in the U.S. Few debates in American immigration policy are as emotionally charged — or as frequently misunderstood — as the one surrounding birthright citizenship. The common assumption is that the 14th Amendment to the U.S. Constitution guarantees citizenship to every person born on American soil, no matter the circumstances. However, a closer look at the actual text, its historical intent, and legal precedents reveals that the situation is not quite so black and white. From exceptions like the children of foreign diplomats to the rights of children born to U.S. citizens overseas, there are significant nuances that challenge the blanket view of birthright citizenship. Moreover, the original purpose of the 14th Amendment — a response to the atrocities of slavery — offers a compelling reason to reconsider how broadly its provisions were meant to apply. Indeed, the constitutional case against an unrestricted interpretation of birthright citizenship is stronger than many people realize.
A critical, often-overlooked point in the birthright citizenship debate is the exception carved out for children of foreign diplomats. Contrary to widespread belief, being physically born on U.S. soil does not automatically confer citizenship if the parents are not “subject to the jurisdiction” of the U.S. Children born to diplomats from other nations, who enjoy diplomatic immunity, are explicitly excluded. This is because such diplomats owe allegiance to their home countries while stationed in the U.S., and thus are not considered fully “subject to the jurisdiction” of U.S. law.
This exception highlights the importance of the 14th Amendment’s phrase “subject to the jurisdiction thereof.” When the amendment was ratified, lawmakers intended to clarify that while most people born on U.S. soil would be citizens, some were excluded. To the Framers, being “subject to the jurisdiction” of the United States involved more than mere physical presence; it also entailed complete allegiance or at least a recognized legal subjection to U.S. law. Diplomats, with their unique status under international law, do not meet this criterion — hence, their children born on U.S. soil are not automatically U.S. citizens. This raises questions as to whether the children of undocumented immigrants are “subject to the jurisdiction” of the U.S. since their parents arguably have some sort of allegiance to their home country. Now, undocumented immigrants don’t enjoy diplomatic immunity the same way diplomats do, so the law applies to them and their children in such a way that is not the case for diplomats and their children. So, it will be up to the courts to decide if the children of undocumented immigrants are “subject to the jurisdiction” of the U. S. in such a way that ought to grant them citizenship by birth.
Another aspect that is important to note is that U.S. law also follows jus sanguinis, or “right of blood,” under certain conditions. Prominent examples include the late Senator John McCain, who was born in the Panama Canal Zone to U.S. citizen parents, and Senator Ted Cruz, who was born in Canada to an American mother. Both men were citizens at birth — not because they were born on U.S. soil, but because they had at least one parent who was a U.S. citizen.
This facet of U.S. citizenship law underscores that American citizenship at birth can be conferred in more than one way. While many Americans believe that physical birth on U.S. soil is the primary or even only path, the reality is that children born abroad to U.S.-citizen parents often acquire U.S. citizenship automatically. In these cases, the logic is that bloodline — a parent who is an American citizen — establishes a legal and emotional connection to the United States that justifies citizenship.
Understanding the historical context of the Fourteenth Amendment is crucial. Ratified in 1868, the amendment aimed primarily to ensure that formerly enslaved individuals and their descendants would not be denied U.S. citizenship. In particular, the Civil Rights Act of 1866 and the subsequent amendment were designed to guarantee that Black Americans — who had been denied legal recognition as citizens — would now be unquestionably included in the national fabric.
The amendment’s authors, such as Senator Jacob Howard of Michigan, explicitly stated that its purpose was to overturn the 1857 Dred Scott v. Sandford decision and secure citizenship for formerly enslaved people. During the debates, members of Congress made it clear that the citizenship clause was directed at a population that was physically present, legally domiciled, and whose allegiance lay with the United States. Indeed, contemporaneous Congressional records suggest that lawmakers did not want their efforts hijacked to grant sweeping citizenship rights to just anyone who managed to be born on U.S. soil. In fact, Senator Howard himself stated, “This will not, of course, include persons born in the United States who are foreigners … or who belong to the families of ambassadors or foreign ministers.”
These records suggest that the Framers never intended the “subject to the jurisdiction” clause to be interpreted so broadly. The children of foreign ministers were to be excluded, but so too were other children whose parents owed allegiance to a foreign power and had no intention of becoming lawful members of American society. The argument is that children born to undocumented immigrants, whose parents didn’t enter the country legally with the intent of becoming lawful members of American society, should therefore not be granted birthright citizenship.
Now, since this is an opinion piece, let me share my personal stance on the issue. I support an expanded form of birthright citizenship — one that includes not only the children of undocumented immigrants but also the children of foreign diplomats. In fact, I would favor removing the “subject to the jurisdiction thereof” clause altogether. I believe America is stronger and more prosperous when more people have the opportunity to become legal workers with workplace protections and active participants in our democracy. Citizenship fosters social stability, economic growth, and civic engagement, and the path to a thriving nation lies in welcoming more people, not fewer.
As of 2022, there are about 11 million undocumented immigrants living in the United States, accounting for about three percent of the total population. The most practical and humane solution is not mass deportation — an impossible and costly endeavor — but rather granting legal status to those already here and using those resources to modernize and expand our immigration system. Our system is so backlogged and inefficient that it has, in part, contributed to the rise in illegal immigration. By making legal pathways more accessible, we can reduce illegal immigration while strengthening our labor force and economy.
That said, my personal views — however much I suspect many of you may share them — are separate from the legal question of whether birthright citizenship, as it currently stands, applies to the children of undocumented immigrants. Based on the language of the 14th Amendment and the historical and legal context surrounding its passage, there is a compelling argument that birthright citizenship does not automatically extend to this group. How this issue unfolds will depend on the courts.
For now, Trump’s executive order has been temporarily blocked by a judge, but it is almost certain to be litigated all the way to the Supreme Court. If the Court ultimately sides with the Trump administration and rules that the children of undocumented immigrants born in the U.S. are not entitled to automatic citizenship, it would not necessarily be evidence of a rogue Court imposing its ideological will. Rather, it could be the affirmation of a legally plausible — if controversial — interpretation of the 14th Amendment as it is currently written.
