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All issues · Immigration · No. 46

Birthright Citizenship

Does the Constitution grant citizenship to everyone born on American soil, or only to some?

The Fourteenth Amendment says that people born in the United States and subject to its jurisdiction are citizens. For more than a century that has been read to cover nearly everyone born on American soil. Whether it must be read that way is now being litigated.

The amendment was adopted in 1868 to overturn the Dred Scott decision and secure citizenship for freed slaves. Its citizenship clause has two requirements: birth in the United States, and being subject to its jurisdiction.

In 1898 the Supreme Court held in United States v. Wong Kim Ark that a child born on American soil to Chinese parents who were themselves ineligible for citizenship was nonetheless a citizen. That decision has been the operative reading ever since, and administrative practice has followed it without interruption.

The narrow historical exceptions to jurisdiction are children of accredited foreign diplomats, children born to a hostile occupying force, and, until federal legislation resolved it, some children born on tribal land. Whether the children of unauthorized immigrants or temporary visitors could be added to that list is the contested question.

Most of the world's countries do not grant citizenship by birth alone; unrestricted birthright citizenship is most common in the Americas. Comparisons cut both ways in the debate, since other countries' rules rest on different constitutional texts and histories.

POSITION 1 / 3

Enforcement first

A country that cannot control who enters cannot set immigration policy at all, and orderly systems require credible enforcement.

  • Predictable consequences for unlawful entry reduce the incentive to attempt it.
  • Smuggling organizations profit from and endanger migrants in transit.
  • Rapid processing and removal of unfounded claims preserves capacity for genuine ones.
  • Public support for legal immigration depends on confidence that rules are enforced.

POSITION 2 / 3

Protection and processing

Deterrence alone does not stop people fleeing danger; it changes their route and raises their risk.

  • Asylum is a legal right, and seeking it is not unlawful entry.
  • Harder enforcement historically pushed crossings toward more dangerous terrain.
  • Adequate judges and asylum officers would resolve claims in months rather than years.
  • Addressing violence and instability in origin countries reduces the pressure at its source.

POSITION 3 / 3

Expand lawful channels

Much unauthorized migration reflects the absence of a legal route that matches real labor demand.

  • Employers in agriculture, construction, and care work face persistent shortages.
  • Sufficient visa capacity would move flows into channels that can be screened.
  • Workplace verification is more effective when a lawful alternative exists.
  • Circular migration becomes possible when re-entry is not effectively one-way.
Terms you will hearFind your officials →
Jus soli
Citizenship by place of birth.
Jus sanguinis
Citizenship by parentage rather than birthplace.
Subject to the jurisdiction
The Fourteenth Amendment phrase at the center of the dispute.
Wong Kim Ark
The 1898 Supreme Court decision holding that a child born on American soil to non-citizen parents is a citizen.
What people actually disagree aboutFind your officials →
  1. What work does subject to the jurisdiction do, if not to narrow the birthplace rule?
  2. Could a narrower rule be applied without burdening citizens proving their own status?
  3. Should a change of this magnitude come from courts, Congress, or a constitutional amendment?
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