In his first hours in office, President Donald J. Trump issued an executive order curtailing the practice of unlimited birthright citizenship. Many think the Fourteenth Amendment calls for citizenship for everyone born in America. Left-wing attorneys general in 18 states have filed suit to stop the order. But the case isn’t as clear cut as some would contend.
At the heart of the debate is this phrase: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
This central clause raises questions about its application for some children of non-citizens and illegal immigrants. By revisiting the original debates surrounding the amendment’s language and reviewing its implications, Trump’s call for limiting the scope of birthright citizenship appears reasonable.
Particularly relevant is U.S. Sen. Mike Lee’s response on X to what he considered to be deceptive reporting by “Meet The Press,” noting that they omitted a portion of the amendment to make their point, “Meet The Press omits six words about birthright citizenship from the 14th Amendment. The omitted text is set off by asterisks: ‘All persons born … in the United States, *and subject to the jurisdiction thereof,* shall be citizens of the United States.’ Those words matter … Nothing in the Fourteenth Amendment limits Congress’s ability to enact legislation limiting birthright citizenship along the lines of what Senator Harry Reid proposed in 1993.”
Original Intent: ‘Subject to the Jurisdiction Thereof‘
The framers of the Fourteenth Amendment crafted the “subject to the jurisdiction” clause with specificity. Sen. Jacob Howard, who introduced the Citizenship Clause, explicitly stated that it would exclude children of diplomats, foreign ministers, and others not fully subject to U.S. laws.
This restrictive interpretation aligns with Sen. Lyman Trumbull’s clarification that “subject to the jurisdiction” means “complete” jurisdiction, not merely physical presence.” He noted that the clause excludes those “not owing allegiance to anybody else.” Thus, it is clear that the amendment intended to deny citizenship to individuals who, by virtue of their parents’ allegiance to another sovereign, were not entirely under U.S. jurisdiction.
Legislative Precedent and Ambiguity
From the outset, American legal practice has balanced jus soli (birthright citizenship) with restrictions. The Civil Rights Act of 1866, a precursor to the Fourteenth Amendment, limited citizenship to those “not subject to any foreign power.” While this language was refined, the principle of allegiance persisted.
The exclusion of Native Americans at the time reinforces this interpretation. Native Americans, though born on U.S. soil, were considered members of sovereign tribal nations and thus outside the scope of the Citizenship Clause. This exclusion persisted until 1924, when Congress extended citizenship through statutory means, further demonstrating that legislative action can refine the scope of citizenship.
Birth Tourism and Border Crossings
The practice of birth tourism and the deliberate crossing of borders by pregnant women — a common occurrence in Texas border communities — to secure U.S. citizenship for their children calls for legislative clarity through statute, something allowed under the Fourteenth Amendment’s language. Such practices impose significant burdens on taxpayers, who fund health care, education, and other services for individuals who may not reside in or fully contribute to the U.S. economy — or even see themselves as owing allegiance to a foreign power.
Sen. Mike Lee pointed out that Congress retains the power to define what it means to be “subject to the jurisdiction thereof.” His December 2024 observations on X emphasize that legislative action could lawfully limit automatic citizenship to children born to U.S. citizens or legal permanent residents. This interpretation aligns with earlier proposals, such as Sen. Harry Reid’s 1993 Immigration Stabilization Act, which sought to restrict birthright citizenship to children of U.S. citizens or lawful residents.
Wong Kim Ark’s Case and Its Limits
Critics of a restrictive interpretation often cite United States v. Wong Kim Ark (1898), which affirmed the citizenship of a child born in the U.S. to Chinese parents who were lawful residents. However, the court’s ruling did not address children of individuals in the country unlawfully or temporarily. Applying this precedent to today’s unauthorized immigrants overextends its scope.
Moreover, as Justice Scalia remarked in Hamdi v. Rumsfeld (2004), such individuals are “presumed citizens” under current practice but without a definitive constitutional mandate. This ambiguity supports the argument that Congress should act to clarify the matter.
Legislative Action Needed
As Lee’s analysis emphasizes, Congress has the authority to refine the application of the Citizenship Clause. This power includes:
- Defining “jurisdiction” to exclude children born to non-citizens present unlawfully or temporarily.
- Ensuring that U.S. citizenship reflects both allegiance and mutual consent.
- Addressing the modern challenges of illegal immigration and birth tourism in a manner consistent with constitutional principles.
A Principled Approach to Citizenship
The Fourteenth Amendment was a strong and needed step toward equality in the aftermath of the Civil War, designed to protect the rights of freed slaves and their descendants. However, its Framers did not foresee today’s challenges, including widespread illegal immigration and border exploitation.
By acknowledging the historical intent of the amendment, Congress can ensure that U.S. citizenship remains a meaningful bond of allegiance and responsibility. Limiting automatic birthright citizenship to those truly subject to U.S. jurisdiction — as defined by allegiance and legal presence — is not only constitutional but necessary to preserve the integrity of our nation. As Lee aptly noted, “Those words matter.” It is time we act accordingly.
Should Congress not act, Trump may have an avenue to force the matter, by declaring that illegal aliens residing in so-called sanctuary cities or states are not “subject to the jurisdiction” of the United States and thus, their children born in a sanctuary jurisdiction do not qualify for birthright citizenship by definition.
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