Birthright Citizenship, Explained

Why Does the U.S. Have Birthright Citizenship?

Birthright citizenship in the U.S. is enshrined in the 14th Amendment to the Constitution, which was ratified in 1868. The specific language that guarantees this right is found in the amendment’s Citizenship Clause, which 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 clause was introduced as part of the broader effort to address the legal status of formerly enslaved individuals following the Civil War. Here’s why the U.S. adopted birthright citizenship and how it fits into the country’s legal framework:

• Post-Civil War Legal Reform and the 14th Amendment: The 14th Amendment was designed to grant citizenship to newly freed Black Americans, particularly the children of formerly enslaved people. It aimed to secure citizenship for all U.S.-born individuals, regardless of their parents’ status, responding to past discriminatory practices that denied Black Americans citizenship rights.
• Preventing Statelessness: Birthright citizenship ensures that children born in the U.S. automatically have nationality, preventing them from becoming stateless — without a country willing to claim them.
• International Practice: While birthright citizenship is rare globally, the U.S. continues to uphold this right, consistent with international human rights principles that protect individuals’ rights, regardless of their parents’ immigration status.
• Legal Precedent and Tradition: U.S. courts have upheld birthright citizenship for over 150 years, with the Supreme Court’s ruling in United States v. Wong Kim Ark (1898) confirming that children born to foreign nationals on U.S. soil are U.S. citizens.

Do Other Countries Also Employ Birthright Citizenship?

Many countries around the world practice birthright citizenship, though the rules and conditions vary. Some countries follow the principle of jus soli (right of the soil), where anyone born within the country’s territory is granted citizenship. Here are some examples:

• Canada: Similar to the U.S., Canada offers birthright citizenship through jus soli, meaning any child born on Canadian soil is granted Canadian citizenship.
• Argentina, Brazil, and Mexico: These countries also follow jus soli and offer automatic citizenship to children born within their borders.
• United Kingdom: The UK used to practice birthright citizenship, but changes in the law have restricted it, especially for children of non-citizen parents.

However, many other countries follow the principle of jus sanguinis (right of blood), which grants citizenship based on the nationality of the parents, not the place of birth. Countries like Japan, Germany, and China primarily use jus sanguinis, meaning a child’s citizenship is determined by the nationality of their parents.

Proposed Changes to Birthright Citizenship under the 14th Amendment

The debate over birthright citizenship in the U.S. is ongoing, particularly regarding whether children born to undocumented immigrants should automatically gain citizenship. The 14th Amendment has been a central point of this discussion. While some argue that the amendment is clear in granting birthright citizenship to all children born in the U.S., others suggest that certain exceptions should apply, especially for children born to foreign nationals who are not in the U.S. legally.

Trump’s Proposal to End Birthright Citizenship

During his 2024 presidential campaign, President-elect Donald Trump reiterated his goal to end birthright citizenship for children born to undocumented immigrants. In a campaign video, Trump promised that on his first day back in office, he would issue an executive order that would end the current policy, which he described as “based on a historical myth and a willful misinterpretation of the law.”

His plan would specifically direct federal agencies to interpret the law in a way that prevents children of undocumented immigrants from automatically receiving U.S. citizenship.

Legal and Political Challenges

• Executive Order vs. Constitutional Amendment: The legal validity of Trump’s possible executive order is uncertain. Many legal experts argue that birthright citizenship is explicitly protected by the 14th Amendment and cannot be undone by an executive order alone. A constitutional amendment, which would require broad congressional approval and ratification by the states, is the only way to legally alter birthright citizenship. This makes Trump’s executive order unlikely to succeed on its own without further legal challenges.
• Potential Actions Beyond an Executive Order: Trump has also proposed other methods for challenging birthright citizenship, including directing the State Department to stop issuing U.S. passports to children of undocumented immigrants. This would inevitably lead to legal battles, particularly concerning the right of U.S. citizens — regardless of their parents’ immigration status — to obtain passports and travel abroad.
• Deportation of Parents: Trump’s team has suggested they would not hesitate to deport the parents of children born in the U.S. under birthright citizenship. His incoming “border czar” Tom Homan said he would deport undocumented parents, even if their children are U.S. citizens. This has led to concerns about the potential separation of families, particularly in cities with sanctuary policies.
• Visa Restrictions for Pregnant Women: In addition to his birthright citizenship proposals, Trump previously attempted to restrict visas for pregnant women seeking to enter the U.S. for “birth tourism” in order to secure U.S. citizenship for their children. In 2020, the Department of State passed a rule allowing consular officers to deny B visa applications if they suspect the primary purpose of travel is to give birth in the U.S. for citizenship benefits.

Bottom Line

Birthright citizenship has been a cornerstone of U.S. immigration law for over a century, guaranteeing automatic citizenship to all individuals born on U.S. soil. While some countries follow the same principle, others have stricter criteria based on parentage. Although the legal status of birthright citizenship remains a topic of debate, especially with proposed changes to the 14th Amendment, It remains central to defining U.S. citizenship.

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