The debate over birthright citizenship is one of the most misunderstood constitutional questions in American law. Many claim that the Fourteenth Amendment grants citizenship to anyone born on U.S. soil, regardless of parental status. That interpretation, however, overlooks the framers’ intent, the context of the amendment’s adoption, and more than a century of legal precedent.
The issue is not whether the Constitution protects the children of illegal immigrants. They are, as the Supreme Court held in Yick Wo v. Hopkins (1886) and reaffirmed in Plyler v. Doe (1982). The question is whether the Citizenship Clause itself extends citizenship to children of parents who were never legally part of the American system. On that point, both the text and history of the Fourteenth Amendment weigh strongly against automatic citizenship.
The clause is specific: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens…”
The critical phrase—“subject to the jurisdiction thereof”—has never meant simple physical presence. When the amendment was ratified, children of Native Americans under tribal authority were excluded, despite being born within U.S. borders. Children of foreign diplomats and enemy occupiers were also excluded. The common factor was allegiance. Jurisdiction meant full and lawful subjection to U.S. authority, not mere location.
Illegal immigrants do not meet that standard. Their very presence is unlawful, and their allegiance remains to their country or origin. Just as foreign diplomats in Washington remain under their governments’ jurisdiction, illegal immigrants are not constitutionally “subject to the jurisdiction” of the United States. They may be prosecuted or deported, but they are not members of the political community the framers envisioned.
Recommended
Supreme Court precedent reinforces this understanding. In United States v. Wong Kim Ark (1898), Justice Horace Gray held that a child born to Chinese parents lawfully residing in the United States was a citizen. He emphasized that “[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”
The word “domiciled” is decisive. Wong’s parents were legal residents with long-standing ties to the United States—not people whose entry violated immigration law.
Earlier, in The Slaughter-House Cases (1873), Chief Justice Salmon P. Chase explained that the phrase “subject to the jurisdiction” was not meant to cover everyone born on U.S. soil without qualification. The Court stated that the amendment excluded “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
The framers themselves drew the same line. Senator Jacob Howard of Michigan, who authored the Citizenship Clause, said it would not include children of “foreigners, aliens, [or] families of ambassadors.”
The amendment was meant to secure the citizenship of freed slaves, not create an incentive for illegal migration. If mass illegal immigration had existed in 1868, the framers would have excluded it by the same principle that excluded diplomats, tribal members, and hostile armies: lack of lawful allegiance.
The Court has also drawn a clear line between equal protection and citizenship. In Plyler v. Doe, the justices held that states could not deny education to children of illegal immigrants, but they confined the ruling to equal protection. Equal protection guarantees access to legal safeguards—it does not transform unlawful presence into lawful allegiance or citizenship.
Congress has the power to address this issue. The Fourteenth Amendment explicitly gives Congress authority to enforce its provisions through legislation. Historically, Native Americans were excluded from the Citizenship Clause but remained protected under the Equal Protection Clause. That distinction shows that equal protection under the law does not equate to citizenship.
Congress ultimately granted citizenship to Native Americans through the Indian Citizenship Act of 1924. Likewise, Congress can clarify the jurisdiction standard today in line with the amendment’s original meaning.
Roughly 250,000 children of illegal immigrants are born in the United States each year. This practice incentivizes unlawful entry and fuels industries such as birth tourism, where foreign nationals come solely to deliver children on U.S. soil.
Meanwhile, lawful immigrants wait years, pay fees, and comply with strict procedures to obtain the same rights. Granting citizenship automatically to children of illegal immigrants erodes respect for the law and diminishes the value of legal immigration.
The Fourteenth Amendment was written to protect freed slaves and ensure their citizenship could never again be denied. It was not intended as a blanket reward for unlawful entry. Citizenship is the highest civic recognition a nation can grant. It should rest on lawful allegiance—not on geography combined with violation of immigration law.
Editor’s Note: The Schumer Shutdown is here. Rather than put the American people first, Chuck Schumer and the radical Democrats forced a government shutdown for healthcare for illegals. They own this.
Help us continue to report the truth about the Schumer Shutdown. Use promo code POTUS47 to get 74% off your VIP membership.
Join the conversation as a VIP Member