Birthright citizenship in the United States

[4] The Fourteenth Amendment was the Reconstruction Committee's primary post-Civil War response to this decision via the guarantee of the same federal "privileges and immunities" to all citizens of all states, thus necessitating the explicit definition of the term.

[5] The term "jurisdiction" was carefully chosen to intentionally exclude U.S.-born children of foreign diplomats[6] and Native Americans living under tribal sovereignty.

Upon taking office in 2025, President Trump issued an executive order asserting that the federal government would not recognize jus soli birthright citizenship for the children of non-citizens.

[25] From 1940 until 1978, a child born abroad who acquired U.S. citizenship at birth but had only one U.S. citizen parent had to fulfill a "retention requirement" of residing, or being physically present, in the United States or its outlying possessions for a certain number of years before reaching a specified age.

"[46] The Supreme Court stated that the rule was "ancient and fundamental", i.e., well-established common law, in 1898: "the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes."

[49]: xxiii  Judicial rulings on domestic relations held that infants, slaves, and women were unable to participate in public life, because they lacked sufficient judgement and could not control either their own will or property.

[36] The law stated that widows and children of aliens who had complied with the declaration of intent to become a citizen specified in the Act of 1802, but died prior to being naturalized were entitled to the rights and privileges of citizenship, if they took the necessary oath.

[59][60] In 1862, Secretary of the Treasury Salmon P. Chase sent a question to Attorney General Edward Bates asking whether or not "colored men" can be citizens of the United States.

If this be a true principle, and I do not doubt it, it follows that every person born in a country is, at the moment of birth, prima facie a citizen; and who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the natural born right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.

[64] Representative John Bingham of Ohio affirmed that the clause was "simply declaratory of what is written in the Constitution," with specific reference to the "natural-born citizen" qualification for presidential office.

Though it did not provide specific requirements to do that, subsequent court cases, such as that of Nellie Grant Sartoris, ruled that marriage to an alien was a voluntary expatriation.

Further clarifications from rulings maintained that a married woman could lose her citizenship if she lived abroad with her alien spouse or if her marriage automatically bestowed upon her the nationality of her husband.

[71][72][73] Professor Garrett Epps of the University of Baltimore disagrees: "The Expatriation Act is not, as Erler imagines, 'a necessary companion piece to the citizenship clause.'

Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent.

[76]The Attorney General clarified this remark as follows: The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father.

However, to re-enter the United States and apply under a petition for naturalization, required that her return did not exceed the restricted the number of immigrants from each country specified in the Emergency Quota Act of 1921.

[85]: 420 The McCarran–Walter Act of 1952 recognized that previous nationality laws had discriminated against married women and sought to remove inequalities by replacing gendered identifiers with the term "spouse".

Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.In the Slaughter-House Cases, 83 U.S. (16 Wall.)

She alleged she had not lost her nationality under the Expatriation Act of 1907 by virtue of the birthright citizenship provisions of the Fourteenth Amendment to the United States Constitution.

[91] John T. Regan, Grand Secretary of the Native Sons of the Golden West (NSGW), with the backing of the American Legion, sued Cameron King, registrar of voters in San Francisco County, to disenfranchise US citizens of Japanese descent and to subsequently deprive them of their citizenship.

The lower courts had dismissed the case by referencing United States v. Wong Kim Ark and upholding the principle of birthright citizenship for all Americans.

In 1943, the former California Attorney General U.S. Webb presenting Regan appealed to the Supreme Court, which officially declined to hear the case.

During the original debate over the 14th Amendment Senator Jacob M. Howard of Michigan—the sponsor of the Amendment, though the Citizenship Clause was written by Senator Wade—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes American Indians who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers".

The most notable of these is Edward Erler, a member of the Claremont Institute and professor emeritus of Political Science who wrote an article for the Heritage Foundation in 2005 arguing that the Supreme Court has "casually" mishandled the issue by understanding the term jurisdiction as a reference to authority rather than allegiance.

In Elk v. Wilkins (1884), the Supreme Court decided that a native Indian who had renounced allegiance to his tribe did not become "subject to the jurisdiction" of the United States by virtue of the renunciation.

"The alien and dependent condition of the members of the Indian Tribes could not be put off at their own will, without the action or assent of the United States" signified either by treaty or legislation.In a 2007 Claremont Institute book on the same topic, he and his co-authors applied this result to the common interpretation of Wong Kim Ark, thus finding that a ruling on the child of documented immigrants had no relevance for children of undocumented immigrants.

If the 14th Amendment’s drafters had wanted "jurisdiction" to exclude children of aliens, they could have simply borrowed the exact language from the 1866 [Civil Rights] Act to extend citizenship only to those born to parents with no "allegiance to a foreign power."

"[135] Upon taking office in 2025, President Trump issued an executive order instructing that the federal government not recognize jus soli birthright citizenship for the children of non-citizens.

[136][137][138] Twenty-two states and the American Civil Liberties Union have filed lawsuits against the Trump Administration to declare the executive order unconstitutional and to block its enforcement.

[138] The same day, civil rights and immigrant advocacy organizations, along with twenty-two states, challenged the order in court, asserting that it violated the Fourteenth Amendment.