When the 14th Amendment was ratified in 1868, it defined the United States nearly as deeply as the nation’s founding documents. “It’s certainly the most important change in the Constitution since the Bill of Rights,” the historian Eric Foner told me.
The amendment grants citizenship to almost everyone born inside the country — a rare policy for an advanced economy in the 21st century. Among the 20 most developed countries in the world, only Canada and the United States allocate citizenship using the legal principle of jus soli, the right of soil.
President-elect Donald J. Trump has vowed to overturn territorial birthright citizenship. “We’re going to have to get it changed,” he told NBC News during his first extended interview after winning the election in November. “We’re going to end that because it’s ridiculous.”
Trump has said that he will release an executive order denying birthright citizenship to the children of “illegal aliens” on the first day that he takes office. Members of his team have told The New York Times that his administration will not issue passports and Social Security cards to children born to undocumented parents. These moves will inevitably be challenged in court, where the fate of birthright citizenship is likely to be decided.
Efforts to end birthright citizenship for the children of unauthorized migrants date back more than four decades, but Trump’s return will most likely present one of the greatest challenges in the 14th Amendment’s 157-year history. Legal arguments that were once regarded as fringe have moved to the mainstream. The Supreme Court has proved itself willing to break with historical precedent in cases involving other conservative priorities, like abortion and presidential immunity. And Trump, who campaigned on the idea of restricting birthright citizenship, is entering office with a majority of the vote.
If Trump follows through on this promise, it would represent a triumph for a certain vision of America. The United States has always wrestled with two strains of nationalism, explains Gary Gerstle, a historian at the University of Cambridge. On the one hand, “civic nationalism” imagines America as a country open to everyone, regardless of faith, color or creed.
At the same time, “racial nationalism,” Gerstle writes in his book “American Crucible,” imagines America as a place where white people are better suited for self-government and where nonwhite people — which at one time included Southern and Eastern Europeans — “could never be accepted as full-fledged members.”
“These competing ideologies of what constitutes an American are often present in the minds of the same people,” Gerstle said.
That may be especially true now, when the inheritors of a more exclusive nationalism are not just white Americans. Angered by the challenges posed by rising global migration — circumstances that have already led several other industrialized nations to replace birthright citizenship with less welcoming laws — many Black, Asian and Latino Americans would also like to see citizenship allocated along blood and family lines, too.
The battle over birthright citizenship will be a fight between these two nationalisms, as it was when the 14th Amendment was proposed.
Absorbing Millions of Immigrants
The 14th Amendment is not fundamentally about immigration. It is about equality. Before the amendment passed, men and women of African descent could not be citizens, even if they were not enslaved.
As Foner documents in his history “Reconstruction,” after the Civil War, many Americans — including President Andrew Johnson — thought that the country’s four million Black residents should remain barred from citizenship. “This is a White Man’s Country; Let White Men Rule,” read a Democratic campaign badge in 1868.
When the 14th Amendment was ratified — granting citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” — it turned the United States into a multiracial democracy for the first time. Cristina Rodríguez, a law professor at Yale University, has described it as “our constitutional reset button.”
“It prevents tiers of membership from arising in American society,” Rodríguez told me. This is why she has argued that the amendment embodies “an anti-caste or anti-subordination principle.”
But its relevance to immigration policy remained open to debate until the Supreme Court decided the case of Wong Kim Ark r in 1898. At the time, Chinese immigrants were explicitly banned from becoming American citizens. But when asked if a man born to Chinese immigrants in California could claim citizenship, the Supreme Court ruled he could — because he was born on American soil.
To decide otherwise, Justice Horace Gray noted in the majority opinion, “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States.”
Those thousands soon turned into millions. Between 1870 and 1900, 12 million immigrants came to the United States — the vast majority from Europe. Born into citizenship without restriction, their children and grandchildren later became part of America’s “Greatest Generation.” Between 1901 and 1920, the country admitted another 14.5 million immigrants. Though these mass migrations triggered a wave of nativism, the nation was nevertheless able to quickly assimilate the new arrivals. And together with the established Native, Black, Latino and Anglo populations, these new Americans and their descendants helped the United States develop a booming industrial economy and win two world wars.
The absorption of millions of immigrants was part of what made the new superpower unique, then and now. Most countries in Europe privilege family ties in determining citizenship — and they struggle more with the assimilation of immigrants. In Germany, for example, a strict adherence to the principle of jus sanguinis (the right of blood), which allocates citizenship based on bloodlines, left the country with a threat to its status as a liberal democracy in the 1980s. By then, there were millions of German-born noncitizens, the children and grandchildren of guest workers recruited from Turkey and elsewhere during the 1950s and 1960s. To fix this ballooning problem, Germany modified its laws in 1999 to grant birthright citizenship to children whose parents met a residency requirement.
The United States has never had this trouble. Whether their parents are from Estonia or El Salvador, children born in the United States grow up as American citizens. A 2015 report on the integration of immigrants by the National Academy of Sciences found that “birthright citizenship is one of the most powerful mechanisms of formal political and civic inclusion in the United States.”
‘Who Belongs and by What Terms’
Many legal scholars contend that the application of territorial birthright citizenship to all immigrants has been a settled matter in the United States since the Wong Kim Ark decision in 1898. But this assurance belies a more uncomfortable history studded with nationalism and noxious forms of racism.
“We have grappled in every generation, as we are doing today, with the question of who belongs and by what terms,” Martha S. Jones, a historian of citizenship at Johns Hopkins University, told me. “Citizenship has always been highly contested and changeable in this country.”
From 1907 to 1922, American women were stripped of their citizenship if they married foreign nationals. Indigenous Americans were not granted citizenship until 1924. Residents of the American territories Puerto Rico, Guam and the U.S. Virgin Islands were granted citizenship by Congress throughout the 20th century. During World War II, more than 80,000 citizens of Japanese descent were held without trial in “internment camps.”
The current challenges to birthright citizenship have their roots in the 1980s, when two Yale professors, Rogers M. Smith and Peter H. Schuck, began to write about the possibility that birthright citizenship might not apply to the children of unauthorized migrants. At the time, they regarded it primarily as an academic challenge, they told me. “The question was so novel that we were concerned that people would think that it wasn’t of any substantive significance,” Smith said, adding that he had always opposed actually changing the policy.
Their 1985 book, “Citizenship Without Consent,” did not take a stand on the issue, and it has never been reprinted. Nevertheless, it captivated conservatives who appreciated its argument that Congress did not address the issue of children of unauthorized migrants when it wrote the 14th Amendment in the 1860s and that it retained the power to resolve the ambiguity through legislation.
In 1991, when Representative Elton Gallegly, a California Republican, sponsored a bill trying to restrict the Fourteenth Amendment, he referred to Schuck and Smith’s work. California, Gallegly said, had been enriched by the arrival of Latinos, Asians and others, but the rise in illegal immigration was a burden to law enforcement, medical facilities, schools and social welfare agencies. When considered together with the expanded welfare state, he said, the effects of birthright citizenship laws were “clearly harmful.” He also noted that it was harder to deport unauthorized parents if they had children who were citizens.
Gallegly’s bill died in committee, but support for the idea of restricting the application of the 14th Amendment grew. The epithet “anchor babies” gained traction in the early 2000s as a way to suggest that undocumented parents had children in the United States primarily to ward off deportation. For three years beginning in 2013, Texas stopped issuing birth certificates for some children of unauthorized migrants.
Unlike Schuck and Smith, most legal scholars believe that changing birthright citizenship requires ratifying a new constitutional amendment, a process that takes years and is unlikely to succeed. So many proponents of restriction would like to see the Supreme Court issue a decision that defines the amendment more narrowly. If Trump issues an executive order, it could force that court battle.
A New Constitutional Reset
In North and South America, where territorial birthright citizenship is standard, the policy has been a tool for strengthening statehood, said Maarten Vink, the co-director of the Global Citizenship Observatory, since it breaks immigrants’ links with their home nations and fosters deeper ties to their adopted country.
But the identities of these nations are now well-established, and as the global population turns more transient, more countries have tossed out jus soli. Since 1980, England, Australia, Ireland and New Zealand have all redefined citizenship so that it falls primarily along blood lines. In each case, new laws followed a rise in immigration from less developed regions of the world.
“What these things have in common with each other is that basic anxiety over rapid social change and the feeling of not being in control of change,” Bryan Fanning, a professor of migration and social policy at the University College Dublin, told me.
Wars, political upheavals, climate change and advances in communications and transportation have supercharged migration. According to the United Nations, the number of refugees and asylum-seekers in the world has more than quadrupled since 1980, reaching 44.5 million by the end of 2023.
This trend has affected the United States intensely. Millions of immigrants entered America around the turn of the 20th century, but at rates starkly slower than today. According to the Economic History Association, from 1870 to 1920, new arrivals numbered between 260,000 to 892,000 people a year. But the U.S. Border Patrol encountered more than two million migrants a year along the U.S.-Mexico border in 2022, 2023 and 2024.
“There’s a reason all developed countries have gotten rid of it,” Mark Krikorian, the executive director of the Center for Immigration Studies, a right-wing group that advocates drastically slowing migration, said about birthright citizenship. “If we had 500 kids a year born to tourists or students or illegal aliens, there would be no reason to even have this debate.”
Krikorian wants American citizenship limited to children with at least one parent who is a citizen or legal permanent resident, but even he favors implementing a “statute of limitations” that would automatically grant citizenship to those born in the United States after they’ve lived in the country for a given period, like 10 years. Australia and France both have policies like this in place.
Without this sort of safeguard, the United States risks the creation of an underclass composed of millions of native-born residents who are banned from full participation in our nation’s economy and politics. That new “constitutional reset” could leave us with the kind of unequal society that the 14th Amendment was intended to prevent.
But any change to the amendment will have profound implications for America’s future. The 14th Amendment defined the United States as a pluralist democracy where, at least in theory, every child was born equal. To narrow its scope would be to concede that America cannot, or will not, uphold that principle.
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