• In one of his first acts as president, Donald Trump signed an executive order restricting birthright citizenship to the children of citizens and permanent residents
  • State attorneys general, federal judges, and legal scholars have all weighed in on the question of whether that order violates the 14th Amendment, and even originalists who usually agree about such matters are divided on the issue 
  • Ultimately, the constitutionality of Trump’s order will be decided by the United States Supreme Court

Under English common law, citizenship was determined by where one was born. That principle, which was known as “jus soli” or “law of the soil,” became the norm throughout the English-speaking world, including in the United States where it became known as “birthright citizenship.”

Under Roman law, citizenship was something one inherited from one’s parents. Known as “jus sanguinis” or “law of the blood,” that principle became the norm throughout continental Europe, and — eventually — in much of the world.

For centuries, birthright citizenship was regarded as one of the many ways in which Anglo-American law was superior to other systems, but with the advent of mass migration it came under attack. Critics pointed out that granting citizenship to the children of illegal immigrants and temporary visitors is unfair to existing citizens and to aliens who have gone through the onerous processes of obtaining lawful admission, permanent residence, and naturalization. They also noted the perversity of rewarding those who violate our immigration laws by entering illegally or abuse them by posing as tourists or temporary workers in order to give birth to so-called anchor babies.

In response to such concerns, most English-speaking countries, including England itself, have restricted birthright citizenship or eliminated it altogether. If birthright citizenship had remained a matter of common law in the United States, something similar could have happened here. Congress could have enacted a statute restricting birthright citizenship, and the president could have signed it into law.

Until recently, most people assumed that sort of statutory change was precluded by the first sentence of 14th Amendment to the U.S. Constitution, 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.

Recently, however, a handful of legal scholars have raised doubts about that assumption, and now, thanks to an executive order signed by Donald Trump, the issue has become a matter for the courts. Under the order, only persons born in the United States to U.S. citizens and lawful permanent residents will be recognized as U.S. citizens by birth.

Democratic attorneys general from 22 states, including North Carolina, immediately filed two complaints in which they challenged the order under the 14th Amendment, and federal judges have already granted preliminary injunctions suspending its enforcement. On the other side of the issue, Republican attorneys general from 18 states have filed an amicus brief supporting the order. Legal scholars and policy experts have also weighed in.

The state attorneys general, the judges who granted the injunctions, and most of the legal scholars and policy experts who have considered the question have concluded that the order does, indeed, violate the 14th Amendment. Nevertheless, the order’s supporters, including several respected legal scholars, insist that it does not. As usual, the arguments on both sides reflect the authors’ theories about how written laws should be interpreted. Unusually, however, even among originalists, who are united their belief that constitutional provisions should be interpreted to mean what they meant at the time they were ratified, there is disagreement about the constitutionality of Trump’s order.

Originalists who oppose the order as unconstitutional generally emphasize the plain meaning of the citizenship clause. Citing historical evidence, they argue that “Subject to a country’s jurisdiction” has always meant “subject to that country’s judicial authority” or “subject to that country’s law.” That’s what the phrase meant when the 14th Amendment was ratified in 1868, and that’s what it still means today.

In their view, the phrase was added to the citizenship clause to reflect the reality that some children born in the U.S. were immune to its judicial authority at the time, and it remains relevant because some of them still are. The children of foreign diplomats are one example. On the other hand, the children of illegal aliens and temporary visitors have never been immune. There were no federal immigration laws in 1868, and no one was classified as an illegal alien or a temporary visitor. Nevertheless, it seems safe to assume that if such classifications had existed at the time, children born to such persons would have been subject to American judicial authority, and, of course, today such children certainly are; if they violate U.S. laws, they can be detained and punished.

Other originalists argue that the plain meaning of citizenship clause may not be what the people who ratified the 14th Amendment had in mind. Citing historical evidence, they have come up with a number of alternative interpretations that would, if accepted, render Trump’s order constitutional.

The most interesting and imaginative of these suggests is that, in the context of the citizenship clause, “subject to [American] jurisdiction” didn’t mean “subject to American judicial authority.” Instead, it meant “entitled to the protection of the United States.” According to this view, the phrase was added to the citizenship clause to reflect the long-standing understanding that only children born in the U.S. to parents who have formally or implicitly pledged allegiance to the United States are entitled to that protection. Illegal aliens and temporary visitors have not and cannot make that pledge. Therefore, their children are not entitled to birthright citizenship.

For readers who want to know more about the arguments on both sides of this debate, I provide links to some of the best of them below. For readers who would prefer to listen to a short introduction to those arguments, I recommend this respectful, good-humored debate between John Yoo and Amy Swearer.

Ironically, despite arguing against the constitutionality of Trump’s order, Prof. Yoo makes what many will regard as a persuasive argument for its implementation. Yoo reminds us that when Kamala Harris was born in California in 1964, both her parents were in the U.S. on temporary visas. If the order had been in effect at the time, he notes, Harris wouldn’t have obtained birthright citizenship, she wouldn’t be a natural-born citizen, and she wouldn’t have been eligible to run for president. Though Yoo makes this observation to show that the order is absurd on its face, I suspect many people, including President Trump himself, would regard that as reason enough to support his order.

Despite Prof. Yoo’s inadvertent case for restricting birthright citizenship, and despite the imaginative arguments some originalists have put forward in defense of Trump’s order, my expectation is that when the case eventually reaches the U.S. Supreme Court, the court will find that it violates the 14th Amendment. If that happens, those who want to restrict birthright citizenship will have no choice but to amend the Constitution.

For more information about why Trump’s order may be constitutional, see:

For more information about why it probably is not, see: