Birthright Citizenship: The Constitutional Stakes and the Transient Problem

The constitutional case against birthright citizenship is strongest when dealing with the children of transients through the country.

T he Supreme Court will hear arguments this morning in Trump v. Barbara, the birthright citizenship case. It arises from a Trump executive order excluding from birthright citizenship the children born here of two classes of parents: illegal aliens and transients through the country, i.e., people who have never established a residence in the United States. These are sometimes colloquially referred to by critics as the “anchor baby” problem (illegal residents having a citizen child) and the “birth tourism” problem (pregnant foreigners coming here to endow their children with American citizenship).

There are weighty policy arguments on both sides. Birthright citizenship has important virtues: It is administratively simple, it reflects our republican ideals of citizenship as a thing not derived from ancestry or blood descent, and it precludes the creation of a multigenerational class of second-class helots on our shores. The two latter concerns animated the Republicans who drafted and ratified the citizenship clause of the 14th Amendment in 1866–68, with the primary purpose of ensuring citizenship for freed slaves and their children. It also has important drawbacks, which once led even leading Democrats to call for its restriction: It encourages illegal immigration and allows the accidents of birth to deprive our sovereign government of choices in whom it permits to attain citizenship by right rather than by merit.

In construing the original meaning of the citizenship clause, of course, the Supreme Court will consider those policy arguments only to the extent that they drove the language of the 14th Amendment. But the Court is not only considering from scratch what the citizenship clause means. It also faces three questions:

• What was already decided by the Court’s long-settled decision in United States v. Wong Kim Ark (1898) — and if the justices disagree with Wong Kim Ark, should the Court overturn it?
• Congress has the power to grant citizenship more broadly than the minimum the Constitution requires. When Congress enacted a 1952 statute incorporating the language of the citizenship clause, did it aim to simply track the scope of the 14th Amendment, or did it statutorily endorse Wong Kim Ark, in which case an executive order can’t overturn what Congress did even if Wong Kim Ark was wrongly decided?
• Are the U.S.-born children of illegal immigrants and the U.S.-born children of transients treated the same way under the citizenship clause — or does the Trump administration have a stronger case as to one than the other?

Setting the Stage

I’ve written in depth on five previous occasions about the constitutional status of birthright citizenship. I’ll reiterate here some of what I’ve written before, but I’ll also link to my previous writings rather than reprint all of it.

In September 2018, I walked through the basic historical and textual case for a broad reading of birthright citizenship, including drawing on the work of my old RedState colleague Jake Walker here on the leading pre–Civil War writings on the “natural-born citizen clause” and here covering from the 1850s to the 1890s, as well as the work of James Ho, now a Fifth Circuit judge (see this 2015 essay by Ho at The Federalist). At the time, I had to scrap a follow-up post because my law firm didn’t want me to keep engaging on the issue. Bluntly, the work of Claremont scholars who were pushing the issue at the time rested uncomfortably heavily upon a misrepresentation of a quote from Senator Jacob Howard, one of the principal authors of the clause. There has been more substantial scholarship in the succeeding years by originalist and conservative scholars on both sides of the issue.

I revisited the question in more summary form in January 2025 when Trump issued his executive order. I returned to the pre–14th Amendment views of James Madison, who wrote in 1789 of the natural-born citizen clause:

It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. [Emphasis added.]

There’s also Abraham Lincoln’s attorney general Edward Bates (who before the Civil War had been a member of the nativist Know-Nothing Party), who opined in 1862:

I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship. [Emphasis added.]

In February 2025, I took a deep dive into Wong Kim Ark, concluding that its holding and five-pronged reasoning are not just scholarly and formidably reasoned, but inconsistent with how they were misrepresented by the Trump legal team. The facts of Wong Kim Ark involved the American-born child of Chinese-born longtime residents who were in the country legally but had never sought citizenship and had no formal legal status under the permissive immigration regime of the day. The case thus squarely held that one need not be a child of American citizens to be entitled to birthright citizenship, and its logic was broad. But it didn’t deal specifically with either the children of transients or the question (never really considered by anyone in the 19th century) of the children of aliens illegally in the country.

When the case came to the Court last year, I reviewed in April and May 2025 the constitutional and separation of powers stakes, but also how the case (Trump v. CASA, Inc.) ended up focusing on the scope of nationwide injunctions rather than the constitutional citizenship rules.

The Issues

As I have previously explained, and as the subsequent scholarship and briefing have clarified, the field of legal dispute has narrowed a good deal. The 14th Amendment provides that “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 (emphasis added).” The amendment passed Congress in June 1866 and was ratified in 1868. The question, for constitutional originalists, is what it was generally understood at the time to mean. Among the contending sides on this question there are seven areas of general agreement:

First, the general phrase “All persons born or naturalized in the United States” is extremely broad. If it is not qualified further, it covers literally everyone born in the United States.

Second, any limitation to that general rule must be found in the phrase “subject to the jurisdiction thereof.” That was the core of the argument in the 19th century, and it’s still the core of the argument today.

Third, the central purpose of the citizenship clause was to ensure citizenship for black Americans, and specifically to overturn Dred Scott v. Sandford. The Supreme Court in Dred Scott ruled, very wrongly, that the Constitution was meant to permanently exclude black Americans, whether free or slave, from citizenship.

This was not a unanimous ruling. One of the two dissents (by Justice Benjamin Curtis, who shortly thereafter resigned in protest from the Court) argued at length that “it is a principle of public law, recognised by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights of citizenship,” and that this right of citizenship by birth had long been understood to include black Americans. The Curtis dissent was much quoted and paraphrased by Abraham Lincoln and other Republicans in 1858–60, but the Dred Scott majority opinion was still the law unless and until overturned by the Court or overruled by constitutional amendment.

Fourth, once the Republican Congress focused on the definition of citizenship, it decided — as it did throughout the 13th, 14th, and 15th Amendments — to write in broad language not specific to any racial category. Thus, while the 14th Amendment should be read with an eye to its intended core purpose, it was never meant or understood to grant rights only to black Americans. It instead aimed to define the parameters of American citizenship by birth.

Fifth, this was the second crack at this question in the same Congress. Congressional Republicans previously attempted to extend citizenship to black Americans in the Civil Rights Act of 1866, which provided that “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The resistance to this effort, including a veto message by President Andrew Johnson declaring the act unconstitutional, persuaded congressional Republicans to enshrine their definition of citizenship in the Constitution itself. There was not a Republican majority on the Supreme Court until mid-1867, so the survival of the Civil Rights Act was a real concern.

Sixth, the original Constitution never defined citizenship. It referred in several places to American and state citizenship, including requiring the president to be “a natural born Citizen,” but aside from empowering Congress to establish “an uniform Rule of Naturalization” for immigrants, it left unstated exactly who is a citizen or who gets to define citizenship. These remained contested questions in 1866. For a good deal of the originalist scholarship, as in Dred Scott and as in cases interpreting the citizenship clause of the 14th Amendment, it is important to understand what Americans believed about citizenship before 1866.

Seventh, immigration law was very different in the 1860s, when nearly half of the country remained unsettled frontier needing to be populated. While immigration was not completely unrestricted, the first law limiting who could enter the country was the Page Act of 1875, and the documentation of immigration status didn’t exist until the 20th century. It was not uncommon for people to just invent new identities upon arriving in the United States. Thus, while nativism and hostility to mass immigration were major features of American politics in the 1790s and the 1850s, concepts such as illegal immigration and lawful permanent resident status were not even in the congressional vocabulary in the 1860s. On the other hand, in the age before air travel, it was relatively rare for people to make short trips through the United States and very arduous for pregnant women to do so if they did not intend to establish a permanent residence here.

The Disputes, Sharpened

To simplify an extensive body of legal scholarship for space, the debate has divided into two camps.

The “sovereignty” camp, advancing the broader view of birthright citizenship, argues that the exceptions to birthright citizenship should be read narrowly to be consistent with the classes of exceptions everyone recognized during the congressional debates: the children of Native Americans, foreign diplomats, foreign sovereigns, and invading foreign armies, all of whom were to some extent outside of the ordinary jurisdiction of American law. In this view, being “subject to the jurisdiction” of American law is equated with having no immunity from the full weight of American law, and so the exceptions are only the children of those people who are still effectively on foreign soil here, such as Indians subject to their own tribal courts, and of diplomats cloaked with sovereign immunity.

Adherents of the sovereignty view (to which I largely, but not entirely, subscribe) argue that the burden is on those arguing for exceptions not obvious in the text or ever discussed in the debates, and that “jurisdiction” in the citizenship clause of Section 1 of the 14th Amendment shouldn’t have a radically different meaning from “jurisdiction” in the next sentence of Section 1, which guarantees that every state must provide equal protection and due process to those “within its jurisdiction.”

The sovereignty argument also invokes antebellum understandings of the natural-born citizen clause, as well as the English common-law doctrine of jus soli, or “law of the soil,” by which anyone born on the king’s soil was his subject — in contrast to jus sanguinis, or “law of the blood,” by which subjects were determined by the allegiance of their parents. Americans adopted English common law, but they also modified it to reflect their republican principles. One of these was the right to renounce the allegiance of one’s birth — whereas the monarchical view of jus soli held that a subject of the king is a subject for life. The fallacy, however, of critics of jus soli is to assume that if Americans modified the doctrine, they must not have adopted it at all. We surely never adopted jus sanguinis, the only widely accepted principle of international law at the time.

Nothing in any of the 1866–68 debates deals with illegal immigration, or anything analogous to it except by very attenuated projections of modern assumptions onto those mid-19th-century arguments. There was a lot of contention at the time about whether the citizenship clause would create citizens out of the children of Chinese workers in California, and ultimately everyone agreed that it did, whether they considered this a good thing or a bad thing. Even this can be argued both ways: Most Chinese workers were male and intended to return home, but those who brought wives who bore children tended to intend to settle here.

The “allegiance” camp, including respectable voices such as Amy Swearer and Kurt Lash who have backed their arguments with detailed scholarship into the 19th-century debates, contends that the framers of the 14th Amendment intended it to grant citizenship only to the children of those people who were completely subject to American jurisdiction, in the sense of owing undivided allegiance to our government to the exclusion of all other governments. But even if the allegiance camp is more right than the sovereignty camp, where does that get it? Holding that illegal immigrants who have settled and resided in America for years or decades are actually still the subjects of foreign governments is a notion that requires a good deal of modern projection onto 19th-century thinking.

I have, however, come around to the view that the Trump camp may have a stronger case with regard to the children of transients. A little history may be appropriate. One of the biggest controversies of the era involved the circumstances under which governments would intervene militarily in relation to people abroad that they regarded as their own. Two examples were especially prominent. The first involved Don Pacifico, a Portuguese Jew residing in Greece who claimed British citizenship by virtue of having been born in Gibraltar. In a celebrated 1850 incident that set the tone for British foreign policy for decades, Lord Palmerston (then the long-tenured British foreign minister, and later prime minister for most of the 1855–65 period) declared after an antisemitic Greek mob wrecked Don Pacifico’s property that he could invoke civis Britannicus sum, on the model of ancient Roman citizenship: I am a British citizen, so its long arm will protect me against all comers no matter where I may roam or reside. It was the most famous incident of Palmerston’s career and defined an entire era of British policy. But it also reflected the strong jus soli assumptions of British law. Americans did not always respect those on our soil.

Americans felt their own oats in the Martin Koszta case. Koszta, a Hungarian rebel against the Austrian Empire in 1848–49, fled ultimately to New York, where he established his residence. He was not an American citizen, and no such category as a green-card holder existed, but he filed in the New York state courts what was then called a “first paper,” a declaration of intention to become a citizen. No federal agency oversaw this. On a business trip in mid-1853 to Smyrna in Turkey (then in the Ottoman Empire), Koszta was abducted by Austrian authorities, who regarded him as a traitorous subject of Austrian emperor Franz Joseph. As far as Austrian law was concerned, Koszta was still subject to Austrian jurisdiction. But Captain Duncan Ingraham, the U.S. Navy officer on the spot in Smyrna commanding the USS St. Louis, considered it decisive that Koszta had filed his first paper, invoking (however unilaterally) the protection of the United States government. Ingraham threatened to open fire on the Austrians if they didn’t release Koszta, which at length they did. Ingraham was backed up by Franklin Pierce’s secretary of state, William Marcy, in a precedent-setting case, and American policy has long honored his decision; multiple Navy ships have been named for Ingraham in spite of his later service for the Confederate navy, and Ronald Reagan told the Koszta story as a parable about American protection of its people abroad.

The Koszta case isn’t directly relevant here, but it hung heavy in the air of the 1860s. Indeed, Marcy’s opinion in the Koszta matter is quoted at length even in the solicitor general’s reply brief, which contends that “The Citizenship Clause Ties Citizenship To Domicile” — a position that may support the administration’s position on transients, but sits more uncomfortably with arguing that the children of resident illegal aliens form a class of permanent stateless persons. As Republican John Broomall argued in 1866: “Civilized man must of necessity be a citizen somewhere. He must owe allegiance to some Government. There is some spot upon the earth’s surface upon which it is possible for him to commit treason.” But would Americans of his day consider that a child of decades-long illegal residents of the country could still commit treason against Mexico or China?

Combined with the Wong Kim Ark case’s defenses of birthright citizenship for the children of longtime residents whether or not they were citizens, the Koszta case reflects a broader ethos that Americans of that era would treat as subject to their own jurisdiction those who set down roots on our soil and left behind their old lands, and would reject all foreign claims to protection of such people. That is the divide on allegiance that really mattered to mid-19th-century American statesmen. But much of the history of the debates on the citizenship clause takes a different view of “sojourners” on our soil who still resided somewhere else. Foreign powers would be expected to defend them, and we might not have insisted that they were wrong. To me, that suggests that the scholarly evidence may weigh in the other direction as to the citizenship of their children born here.

There’s a further textual clue, cited by the solicitor general, that residence may carry heavier weight in this case in ways that result in a split decision, with the children of illegal aliens winning and the children of transients losing. The citizenship clause makes children born here citizens of the United States “and of the State wherein they reside.” That strongly suggests that the framers of the amendment expected that the birthright citizenship they were granting applied to residents, not to transients.

I’ll follow up with more on the statutory question.