14th Amendment: Citizenship
Ratified in 1868, the 14th Amendment defined citizenship for the first time in the Constitution. Its opening clause, including the phrase "subject to the jurisdiction thereof," remains one of the most debated phrases in American constitutional law.
The Text of Section 1
"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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."Why Was It Written?
Before the 14th Amendment, the Constitution contained no definition of citizenship. The Supreme Court's 1857 decision in Dred Scott v. Sandford had declared that Black Americans, whether enslaved or free, could never be citizens of the United States. This ruling barred African Americans from suing in federal court as citizens and from claiming the rights the Constitution gives to citizens.
Congress responded first with the Civil Rights Act of 1866, which declared that all persons born in the United States and not subject to any foreign power were citizens. To put that principle on a permanent constitutional footing beyond the reach of a simple congressional repeal, legislators drafted and passed the 14th Amendment.
Ratified on July 9, 1868, the amendment's first section did four major things: it defined citizenship, it prohibited states from abridging the privileges or immunities of citizens, it guaranteed due process against state action, and it guaranteed equal protection of the laws.
It was the second of the three Reconstruction Amendments: the Thirteenth, ratified in 1865, abolished slavery, and the Fifteenth, ratified in 1870, barred states from denying the vote on account of race.
The Citizenship Clause, Phrase by Phrase
The word "all" is broad and deliberate. It was meant to be a universal rule with no racial qualifications, unlike the Dred Scott decision. It covers two paths to citizenship: birth on U.S. soil (jus soli) and the naturalization process established by Congress.
The Supreme Court tested this clause in United States v. Wong Kim Ark (1898), ruling that a man born in San Francisco to Chinese immigrant parents was a U.S. citizen by birth, even though his parents were themselves ineligible for naturalization under the Chinese Exclusion Act. The ruling confirmed that birthright citizenship does not depend on the parents' citizenship or on whether they are allowed to naturalize. The question of parents who are in the country unlawfully or temporarily was settled later, in Trump v. Barbara (2026).
The Senate added the citizenship sentence in May 1866, drafted by Senator Jacob Howard of Michigan. It built on the Civil Rights Act of 1866, which had declared citizens all persons born in the United States and not subject to any foreign power, and placed the rule in the Constitution so that a later Congress could not repeal it. The Civil War page covers the Reconstruction context.
Wong Kim Ark was born in San Francisco in 1873 and was refused re-entry in August 1895 after visiting China. Justice Horace Gray wrote the March 1898 opinion; Chief Justice Melville Fuller and Justice John Marshall Harlan dissented. The Chinese American history page tells the fuller story.
This is the most debated phrase in the clause. At minimum, it has always been understood to exclude children of foreign diplomats (who are immune from U.S. law) and children born of hostile enemy forces occupying U.S. territory. Its application to children of undocumented immigrants and temporary visitors has been the subject of legal debate for over a century.
In Elk v. Wilkins (1884), the Supreme Court held that a Native American born on a reservation and subject to tribal authority was not 'subject to the jurisdiction' of the United States and therefore not a citizen under this clause. Congress did not extend citizenship to all Native Americans born in the U.S. until the Indian Citizenship Act of 1924.
On May 30, 1866, Senator Howard told the Senate that the clause would not include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers. Scholars still disagree about whether he was describing one narrow group, the families of diplomats, or several separate groups.
The Indian Citizenship Act was signed on June 2, 1924. Citizenship did not guarantee the vote: Arizona and New Mexico barred Native Americans from voting until court rulings in 1948. The Native American history page covers this history.
This established dual citizenship, national and state, for the first time. Before the 14th Amendment, state citizenship was primary and national citizenship was secondary. The amendment reversed that priority, making national citizenship the foundation.
This new national citizenship later laid the constitutional groundwork for the 'incorporation doctrine,' which the Supreme Court used to apply most Bill of Rights protections against state governments, beginning with free speech in Gitlow v. New York (1925). Before the 14th Amendment, the Bill of Rights was understood to restrain only the federal government, per Barron v. Baltimore (1833).
The Supreme Court soon limited what national citizenship meant. In the Slaughter-House Cases (1873), decided 5-4 in a dispute involving New Orleans butchers, the Court read the Privileges or Immunities Clause narrowly, holding that it protected only a short list of rights tied to national citizenship.
The clause has seen only occasional use since. In Saenz v. Roe (1999), the Court relied on it to strike down, 7-2, a California law that paid new residents lower welfare benefits during their first year in the state, protecting the right to travel between states. The landmark Supreme Court cases page covers other rulings built on the 14th Amendment.
The Road to the 14th Amendment
1857
Dred Scott v. Sandford
The Supreme Court rules that Black Americans, free or enslaved, cannot be citizens. Chief Justice Roger Taney writes that they were never intended to be included under the word "citizens" in the Constitution.
1865
13th Amendment ratified
Slavery is abolished, but the legal status of formerly enslaved people remains unresolved. Southern states begin passing Black Codes to restrict the rights of free Black Americans.
1866
Civil Rights Act of 1866
Congress declares that all persons born in the United States and not subject to any foreign power are citizens. President Andrew Johnson vetoes the bill; Congress overrides the veto. Lawmakers worry the act could be repealed, so they move to enshrine its principles in the Constitution.
1866
14th Amendment proposed
The joint resolution proposing the amendment passes Congress on June 13. Senator Jacob Howard introduces the citizenship clause language, explaining on the Senate floor that it will not include persons born in the United States "who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."
1868
14th Amendment ratified
The amendment is ratified on July 9 after being approved by the required three-fourths of states. It immediately makes formerly enslaved people citizens and lays the foundation for future civil rights law.
Did You Know?
The 14th Amendment is often described as the most litigated amendment in the Constitution, with a long line of Supreme Court cases built on its clauses.
Two Northern states, Ohio and New Jersey, withdrew their ratification of the 14th Amendment before it took effect, but Congress counted them as ratified anyway (Oregon also rescinded, later in 1868).
The United States and Canada are among the very few developed nations that grant citizenship based solely on birth within the country, a principle called jus soli.
The phrase "equal protection of the laws" from this amendment became the constitutional basis for Brown v. Board of Education, striking down school segregation in 1954.
"Subject to the Jurisdiction Thereof"
The five most contested words in the citizenship clause
When Senator Jacob Howard introduced the citizenship clause language on the Senate floor in 1866, he described the phrase as excluding "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." That explanation has been at the center of constitutional debate ever since.
There are two main schools of thought on what the phrase means. They differ not on the text itself, but on how broadly or narrowly "jurisdiction" should be read.
The phrase also shapes citizenship outside the fifty states. People born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands are citizens by acts of Congress, not by this clause, and people born in American Samoa are U.S. nationals rather than citizens. In 2021 a federal appeals court held that the clause does not automatically extend to American Samoa, and the Supreme Court declined to review the case.
Children born abroad to American parents also become citizens by statute rather than under the Fourteenth Amendment, under rules Congress sets in the Immigration and Nationality Act. The path to citizenship page explains how people who are not citizens at birth can become citizens.
The Two Core Interpretations
Territorial Jurisdiction (Broad View)
Anyone physically present in the United States is subject to its laws and therefore subject to its jurisdiction. On this reading, virtually all children born on U.S. soil are citizens, with only the narrow exceptions recognized at common law, chiefly children of foreign diplomats and children of enemy forces in hostile occupation.
Supported by: United States v. Wong Kim Ark (1898), most federal courts, majority of legal scholars
Complete/Political Jurisdiction (Narrow View)
"Subject to the jurisdiction" means owing full and exclusive political allegiance to the United States, not merely being subject to its laws while present. On this reading, children of parents who owe allegiance to a foreign country, or who are present temporarily or unlawfully, are not automatically citizens.
Supported by: Elk v. Wilkins (1884), Trump administration (2025), a minority of legal scholars
What the Framers of the Amendment Said
“This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”Scholars disagree on whether Howard was describing diplomatic families alone or foreigners and aliens as separate groups.
“What do we mean by subject to the jurisdiction of the United States? Not owing allegiance to anybody else. That is what it means.”Trumbull's phrasing introduced the allegiance concept, which is cited by both broad and narrow interpreters.
“Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?”Cowan raised the question of children of transient foreigners, suggesting the clause's scope was not fully settled even during debate. Senator John Conness of California answered him on the floor, saying the children of Chinese parents born in California would be citizens.
Established Exceptions: Who Is NOT a Birthright Citizen?
Regardless of the broader debate, certain categories have been consistently recognized as excluded from the citizenship clause since its ratification.
Under international law, accredited diplomats and their families are immune from the jurisdiction of the host country. A child born in Washington, D.C. to an ambassador is not a U.S. citizen at birth. This was recognized as an exclusion by Senator Howard during the 1866 debates and has never been disputed.
The same rule appears in an optional protocol on nationality to the Vienna Convention on Diplomatic Relations of 1961, which provides that members of a diplomatic mission and their families do not acquire the host country's nationality solely through its laws. The United States has not joined that protocol and applies the rule under its own law.
The State Department applies the exception only to diplomats with full immunity. Children born in the United States to consular officers and other foreign officials who have more limited immunity are generally treated as U.S. citizens at birth.
A child born to a diplomat is not left without options. Federal regulations allow such a child to be treated as a lawful permanent resident at birth, which later opens the ordinary route to naturalization described on the path to citizenship page.
A child born in U.S. territory during a hostile military occupation, to parents who are part of the occupying enemy force, is not a citizen. This exception traces to English common law and was recognized in Wong Kim Ark (1898) as one of a few narrow common-law exceptions.
The idea comes from English law on allegiance, especially Calvin's Case (1608), which held that a person's allegiance is owed to the sovereign in whose protection he is born. A child born to an invading army owes allegiance to that army's ruler, not to the sovereign whose land it occupies.
In Wong Kim Ark, Justice Gray listed the common-law exceptions as children of foreign sovereigns or their ministers, children born on foreign public ships, and children of enemies during a hostile occupation, along with the separate category of members of Indian tribes.
The exception has almost never mattered in practice. The closest American example is the British occupation of Castine, Maine, during the War of 1812, which the Supreme Court treated in United States v. Rice (1819) as temporarily placing the town under British control. The military history page covers that war.
The Supreme Court held in Elk v. Wilkins (1884) that Native Americans born as members of tribes were not subject to U.S. jurisdiction in the constitutional sense because they owed immediate allegiance to their tribe, not to the United States. Congress granted citizenship to all Native Americans born in the U.S. through the Indian Citizenship Act of 1924, resolving this category by statute rather than the 14th Amendment.
Before 1924, many Native Americans became citizens by other routes, including treaties, the allotment of tribal lands under the Dawes Act of 1887, and a 1919 law for veterans of World War I. The Native American history page traces these policies.
The 1924 act made citizens of all Native Americans born in the United States who were not already citizens, while stating that citizenship would not impair their rights to tribal or other property.
Voting rights lagged behind. Some states continued to deny Native Americans the ballot through literacy tests and residency rules, and full protection came only with the Voting Rights Act of 1965 and its later amendments. See the voting rights page.
Key Court Cases on Citizenship
Courts have interpreted the citizenship clause in landmark cases spanning more than 150 years.
The Supreme Court ruled 7-2 that Black Americans, whether free or enslaved, could not be citizens of the United States and therefore had no standing to sue in federal court. Chief Justice Roger Taney wrote that the framers of the Constitution had viewed Black people as "beings of an inferior order" with "no rights which the white man was bound to respect." The 14th Amendment was written specifically to overturn this decision.
Scott had lived with his enslaver, an Army surgeon, in Illinois and in the Wisconsin Territory, where slavery was banned, and argued that residence on free soil had made him free. He first sued in Missouri in 1846, and the Supreme Court decided his case on March 6, 1857.
The Court also held that Congress had no power to ban slavery in the territories, striking down the Missouri Compromise line and deepening the crisis that led to the Civil War. Scott was freed by new owners in May 1857 and died the next year. The Black American history page covers the case's legacy.
Why It Matters
Overturning it was a central purpose of the 14th Amendment's Citizenship Clause. Widely regarded as the worst Supreme Court decision in American history.
John Elk, a Native American who had left his tribe and lived among white Americans, claimed citizenship under the 14th Amendment and sued when he was denied the right to vote. The Court ruled 7-2 that Native Americans who maintained tribal allegiance were not "subject to the jurisdiction" of the United States because they owed immediate allegiance to their tribe. This was true even if a tribe member was physically born on U.S. soil outside of tribal territory.
Elk tried to register to vote in Omaha, Nebraska, in April 1880, and the city registrar, Charles Wilkins, refused. Justice Horace Gray wrote the majority opinion, decided November 3, 1884; Justices John Marshall Harlan and William Woods dissented.
Congress resolved the question by statute 40 years later with the Indian Citizenship Act of 1924. The Native American history page covers the long path to citizenship and voting rights.
Why It Matters
Established that "subject to the jurisdiction" meant more than mere physical presence, requiring something closer to complete political allegiance. Cited by narrow interpreters to support limiting birthright citizenship beyond diplomats and enemy forces.
Wong Kim Ark was born in San Francisco to parents who were Chinese nationals lawfully domiciled in the United States. When he was denied re-entry to the U.S. after a trip to China, he challenged the denial as a citizen. The Court ruled 6-2 that under the 14th Amendment, any child born on U.S. soil to parents who are permanent residents, even if those parents cannot become citizens themselves, is a U.S. citizen. Justice Horace Gray wrote that the amendment "affirms the ancient and fundamental rule of citizenship by birth within the territory."
Wong's parents had lived in San Francisco for years before returning to China in 1890. When he came back from a visit in August 1895, customs officials held him aboard ship under the Chinese Exclusion Act. Chief Justice Melville Fuller and Justice John Marshall Harlan dissented from the March 28, 1898, decision.
The Chinese Exclusion Act of 1882 remained in force until Congress repealed it in 1943, during World War II, when China was a U.S. ally. The Chinese American history page covers the exclusion era.
Why It Matters
The controlling Supreme Court precedent on birthright citizenship for over 125 years. Recognized only a few narrow exceptions to birth citizenship: children of foreign rulers and diplomats, children born on foreign public ships, children of enemy occupying forces, and, at the time, members of Indian tribes. In defending its 2025 executive order, the Trump administration argued this case should be read narrowly because the parents in Wong Kim Ark were domiciled residents, not temporary visitors.
Beys Afroyim, a naturalized U.S. citizen, voted in an Israeli election and was subsequently told he had lost his American citizenship. The Court ruled 5-4 that Congress does not have the power to strip a citizen of citizenship without consent. The 14th Amendment's grant of citizenship is a constitutional right, not a privilege Congress can revoke.
Afroyim, an artist born in Poland, was naturalized in 1926, moved to Israel in 1950, and voted in an Israeli election in 1951. In 1960 the State Department refused to renew his passport under a 1940 law that stripped citizenship from Americans who voted in foreign elections. Justice Hugo Black wrote the May 29, 1967, opinion, overruling a 1958 decision.
In Vance v. Terrazas (1980), the Court added that the government must prove a person actually intended to give up citizenship. Americans may still renounce voluntarily, a process handled by the State Department at U.S. embassies and consulates abroad.
Why It Matters
Established that once citizenship is granted, it belongs to the citizen. Congress can set the rules for who becomes a citizen but cannot involuntarily take citizenship away from someone who has it. One exception remains: citizenship gained through naturalization can be revoked if it was obtained by fraud.
Texas denied free public education to children of undocumented immigrants. The Court ruled 5-4 that this violated the Equal Protection Clause of the 14th Amendment, which protects "any person" within a state's jurisdiction, not just citizens. The case addressed equal protection, not the citizenship clause, but it is often cited in citizenship debates because it confirmed that the children of undocumented immigrants are "persons" within the jurisdiction of the United States for purposes of legal protection.
In 1977, the Tyler Independent School District in Texas began charging $1,000 a year in tuition to children who could not prove lawful status. Justice William Brennan wrote the majority opinion, decided June 15, 1982, and Chief Justice Warren Burger wrote the dissent.
The ruling has been tested since. In 1994, California voters approved Proposition 187, which barred undocumented children from public schools, but a federal court blocked it as conflicting with Plyler and the state dropped its appeal in 1999. The immigration page covers the broader law.
Why It Matters
Relevant to the birthright citizenship debate because it treated children of undocumented immigrants as being within U.S. jurisdiction for equal protection purposes, though it did not directly rule on the citizenship clause.
Following President Trump's January 20, 2025 executive order directing federal agencies to deny citizenship documentation to children born in the U.S. to parents who are present unlawfully or temporarily, multiple lawsuits were filed immediately. Every federal court to consider the order blocked it. The Supreme Court agreed in December 2025 to take up the case and heard oral arguments on April 1, 2026. Observers and court reporters noted that a majority of justices appeared skeptical of the administration's position during argument, frequently pressing the Solicitor General on how to reconcile the executive order with Wong Kim Ark.
The order, Executive Order 14160, was titled Protecting the Meaning and Value of American Citizenship and was to apply to children born after February 19, 2025. It covered children whose mother was unlawfully or temporarily present and whose father was not a citizen or lawful permanent resident. The executive orders page explains how such orders work.
In Trump v. CASA (June 27, 2025), the Supreme Court held 6-3 that federal courts generally may not issue universal injunctions, without deciding whether the order itself was lawful. Challengers then brought class actions, and in July 2025 a federal judge in New Hampshire certified a nationwide class of affected children and blocked the order, the case that became Trump v. Barbara. See how cases reach the Supreme Court.
On June 30, 2026, the Court ruled 6-3 against the order; five justices held it unconstitutional. Writing for the majority, Chief Justice John Roberts held that children born in the United States to parents who are unlawfully or temporarily present are 'subject to the jurisdiction' of the United States and are citizens at birth. Justice Kavanaugh concurred in the judgment, saying the order violates federal citizenship law (8 U.S.C. 1401(a)) rather than the Constitution; Justices Thomas, Alito, and Gorsuch dissented.
Why It Matters
The first direct Supreme Court challenge to birthright citizenship in over a century. The ruling reaffirmed Wong Kim Ark's broad reading of the citizenship clause rather than narrowing it to exclude children of parents without lawful permanent status.
Competing Interpretations Over Time
This page presents the arguments made by each school of interpretation as their proponents make them. USGovExplained.org does not advocate for any legal or political position.
The Narrow (Allegiance-Based) Interpretation
Proponents of the narrow view argue that "subject to the jurisdiction thereof" means owing complete and exclusive political allegiance to the United States. Their primary arguments include:
Senator Howard, who wrote the clause, stated on the floor that it excluded "foreigners, aliens." Senator Trumbull defined jurisdiction as "not owing allegiance to anybody else." These statements, narrow interpreters argue, show the framers did not intend to grant citizenship to the children of people who maintain allegiance to a foreign nation.
Howard's full statement described persons who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers. Narrow interpreters read foreigners and aliens as a separate category from diplomats' families, while broad interpreters read the whole phrase as describing diplomats alone. The debate took place in the Senate.
Senator Lyman Trumbull, who chaired the Senate Judiciary Committee and wrote the Civil Rights Act of 1866, offered his definition in the course of debating whether tribal members would be covered, which narrow interpreters say shows jurisdiction meant complete allegiance.
The narrow reading gained academic attention in 1985, when Yale professors Peter Schuck and Rogers Smith published Citizenship Without Consent, arguing that the clause could be read to require the nation's consent to a parent's presence.
The Supreme Court held in Elk v. Wilkins (1884) that tribal members who were born in the U.S. but owed allegiance to their tribe were not subject to U.S. jurisdiction under the 14th Amendment. If physical presence on U.S. soil were sufficient, this case would have come out differently. The same logic, narrow interpreters argue, should apply to people who owe allegiance to a foreign country.
Elk had left his tribe and lived among white Americans in Omaha, yet the Court still held he was not a citizen, reasoning that he could not make himself one without the consent of the United States, for example through naturalization.
Justice Horace Gray wrote both Elk and Wong Kim Ark. Narrow interpreters argue the two decisions must be read together, so that Wong Kim Ark's broad language applies only to parents whose presence the nation had in some way accepted.
Supporters of the broad reading respond that tribes held a unique legal status as separate political communities, so Elk says little about immigrants. The Native American history page explains tribal sovereignty.
Wong Kim Ark's parents were permanent, domiciled residents of the United States, not temporary visitors. The Trump administration's legal briefs defending the 2025 executive order argued that the decision should be limited to its facts, meaning it only guarantees citizenship to children of permanent residents, not those of temporary visa holders or undocumented immigrants.
The Wong Kim Ark opinion refers repeatedly to the fact that his parents had a permanent domicile and residence in the United States, and the status of children whose parents were present unlawfully was not before the Court.
Narrow interpreters also note that unlawful immigration as a category barely existed in 1868. Congress did not pass its first significant restrictions on immigration until the 1870s and the Chinese Exclusion Act of 1882, as covered on the immigration page.
The 2025 order applied this reasoning to children whose mother was unlawfully or temporarily present and whose father was not a citizen or permanent resident. The executive orders page explains the limits of presidential orders.
Narrow interpreters note that the United States is unusual among developed nations in granting citizenship by birth on soil alone. Most countries grant citizenship based on parentage (jus sanguinis). They argue the current broad interpretation was never the intended design and creates perverse incentives, including "birth tourism."
About 30 countries grant automatic citizenship to nearly everyone born on their soil, most of them in the Western Hemisphere, including Canada, Mexico, and Brazil. The United Kingdom ended unconditional birthright citizenship in 1983, Australia in 1986, and Ireland after a 2004 referendum.
Concern over birth tourism led the State Department to adopt a rule in 2020 allowing consular officers to deny visitor visas to applicants whose primary purpose in traveling is to give birth in the United States.
Members of Congress have introduced bills to limit birthright citizenship by statute in most sessions since the 1990s, but none has passed either chamber. See how a bill becomes law.
The Broad (Territorial) Interpretation
Proponents of the broad view argue that "subject to the jurisdiction" means being subject to U.S. laws, which applies to nearly everyone physically present in the country. Their primary arguments include:
The Supreme Court ruled in 1898 that the 14th Amendment extended citizenship to children born of resident aliens, even aliens who were barred from ever becoming citizens. The Court applied the common-law rule of jus soli (citizenship by place of birth) and said the amendment codified that rule. This precedent has stood for over 125 years without being overturned.
Justice Gray's opinion surveyed English common law back to Calvin's Case of 1608 and early American practice before concluding that the amendment adopted the traditional birthplace rule. The Chinese American history page covers the man at the center of the case.
For more than a century, the executive branch followed the same understanding. The State Department has issued passports, and federal agencies have recognized citizenship, for U.S.-born children without regard to their parents' immigration status.
Supporters also cite Plyler v. Doe (1982), in which Justice Brennan wrote that no plausible distinction could be drawn between lawfully and unlawfully present immigrants for purposes of being within a state's jurisdiction. Wong Kim Ark appears among the landmark Supreme Court cases.
Everyone physically present in the United States, regardless of immigration status, is subject to U.S. laws. They can be arrested, prosecuted, and deported. If they commit a crime, they are tried in U.S. courts. Broad interpreters argue that this legal subjection is exactly what "subject to the jurisdiction" means, and that grafting an additional allegiance requirement onto the text rewrites the Constitution.
Broad interpreters point out that diplomats are excluded precisely because they cannot be prosecuted, which is what immunity from jurisdiction means. Undocumented immigrants, by contrast, can be arrested, tried, taxed, and deported under U.S. law.
They also rely on Chief Justice John Marshall's opinion in The Schooner Exchange v. McFaddon (1812), which described a nation's jurisdiction within its own territory as necessarily exclusive and absolute, subject only to exceptions the nation itself accepts, such as for foreign sovereigns and diplomats.
On this view, the narrow reading produces an odd result: if undocumented parents were not subject to U.S. jurisdiction, it would be hard to explain how they can be bound by and punished under U.S. law, including immigration law itself.
The 14th Amendment was written to establish a universal, race-neutral rule of citizenship after Dred Scott. A rule based on parental status, broad interpreters argue, recreates a class of people born on U.S. soil who are nonetheless excluded from citizenship, which is precisely what the framers sought to prevent. The amendment's text uses "all persons," not "persons whose parents meet a status requirement."
Congress had first written the rule into the Civil Rights Act of 1866, passed over President Andrew Johnson's veto on April 9, 1866. Putting it into the Constitution protected it from repeal by a later Congress. The Black American history page covers what the amendment meant for freed people.
The 1866 debates show the drafters considered the children of immigrants they disfavored. When Senator Edgar Cowan of Pennsylvania objected that the clause would make citizens of the children of Chinese immigrants, Senator John Conness of California agreed that it would, and supported the clause anyway.
The amendment was ratified on July 9, 1868, as one of three Reconstruction Amendments. The constitutional amendments page covers the Thirteenth, Fourteenth, and Fifteenth Amendments together.
Challengers to the 2025 executive order argued before the Supreme Court that if the framers had meant to limit birthright citizenship to children of permanent residents, they would have written that into the clause. The text is broad, and the exceptions were narrow and well understood. Extending the exclusion beyond diplomats and enemy forces requires reading words into the Constitution that are not there.
Broad interpreters note that the drafters chose different words than the 1866 statute, which excluded persons subject to any foreign power. The amendment instead used subject to the jurisdiction, which they argue refers to legal authority rather than allegiance.
Changing the rule, on this view, would require a constitutional amendment, which needs two-thirds of both houses of Congress and ratification by three-fourths of the states. The current and proposed amendments page explains that process.
Congress has also written birthright citizenship into federal law. The Immigration and Nationality Act of 1952, carrying forward language from a 1940 law, declares a citizen at birth any person born in the United States and subject to its jurisdiction, as covered on the immigration page.
A Note on Nonpartisanship
Both interpretations above are held by serious legal scholars and have been argued in federal courts. The question of what "subject to the jurisdiction thereof" means is a genuine constitutional dispute with legitimate arguments on both sides. USGovExplained.org presents both views so that readers can understand the debate, not to advocate for either outcome.
Birthright Citizenship Today
Where things stand as of November 2026
Executive Order 14160 (January 20, 2025)
On his first day back in office, President Trump signed Executive Order 14160, directing federal agencies to stop issuing citizenship documentation to children born in the United States whose mother is either unlawfully present or in the country on a temporary visa, and whose father is neither a U.S. citizen nor a lawful permanent resident.
The order argued that this interpretation is consistent with the 14th Amendment's "subject to the jurisdiction" language. It stated that the amendment "has never been interpreted to extend citizenship universally to everyone born within the United States" and pointed to the same phrase in federal citizenship law (8 U.S.C. 1401). The allegiance-based reading drawn from Elk v. Wilkins and the framers' floor statements came later, in the government's court briefs.
The order was signed on January 20, 2025, and was to take effect for children born after February 19, 2025. Lawsuits were filed within hours by a coalition of states and by civil liberties groups, and federal judges in several states quickly blocked it from taking effect.
In Trump v. CASA (June 27, 2025), the Supreme Court limited federal courts' power to issue nationwide injunctions without ruling on whether the order was lawful, and challengers then pursued class actions. The executive orders page explains what presidents can and cannot do by order, and how cases reach the Supreme Court covers the path such disputes take.
Current Status
The executive order has never gone into effect. Federal courts in Washington, Maryland, Massachusetts, and New Hampshire blocked its implementation, first with a temporary restraining order in Washington three days after it was signed and then with preliminary injunctions in February 2025. Every lower court to consider the order's constitutionality found it likely violated the 14th Amendment, and on June 30, 2026, the Supreme Court struck it down in Trump v. Barbara.
Trump v. Barbara: The Supreme Court Case
The Supreme Court agreed in December 2025 to hear Trump v. Barbara, a class-action case brought on behalf of babies born in the United States who would be denied citizenship under the executive order. Oral arguments were held on April 1, 2026.
Representing the Trump administration, Solicitor General D. John Sauer argued that the 14th Amendment was adopted primarily to establish citizenship for newly freed slaves and their children, and that it was not intended to extend citizenship to children of people temporarily present or unlawfully present in the country. He argued that Wong Kim Ark should be limited to its facts, since the parents in that case were domiciled permanent residents.
Representing the challengers, attorney Cecillia Wang argued that "all persons born in the United States" means what it says, and that the 14th Amendment established a fixed rule that does not depend on the parents' immigration status. She argued that undocumented immigrants are domiciled in the United States because they live here with the intent to remain.
Court observers and reporters noted after oral arguments that a majority of justices appeared skeptical of the executive order, frequently pressing the Solicitor General on how his position could be reconciled with the plain text of Wong Kim Ark.
On June 30, 2026, the Court ruled 6-3 against the order. Chief Justice Roberts's majority opinion held that the Citizenship Clause covers children born here to parents who are unlawfully or temporarily present. Justice Jackson wrote a concurrence, Justice Kavanaugh concurred in the judgment and dissented in part, and Justices Thomas (joined by Justice Gorsuch), Alito, and Gorsuch wrote dissents.
What the Supreme Court Decided
The Court Struck Down the Order
Wong Kim Ark's broad interpretation of birthright citizenship was reaffirmed. Children born in the United States continue to receive citizenship at birth regardless of their parents' immigration status, with the same narrow exceptions that have existed since 1868.
What Upholding the Order Would Have Meant
Had the order been upheld, children born in the United States to parents present without legal status or on temporary visas would no longer have been citizens automatically. Experts estimated this could have affected hundreds of thousands of births per year, and a birth certificate alone would no longer have been sufficient proof of citizenship.
How Could Birthright Citizenship Be Changed Permanently?
Because the Supreme Court has now ruled that the 14th Amendment requires birthright citizenship for children born here to parents who are unlawfully or temporarily present, the only way to change that rule permanently would be a constitutional amendment. That process requires:
Step 1
Two-thirds of both the House and Senate must approve the proposed amendment.
Step 2
Three-fourths of state legislatures (38 of 50 states) must ratify the amendment.
Step 3
There is no presidential veto in the amendment process, but the ratification timeline has no formal deadline.
Note
Before the 2026 ruling, some argued that Congress could define "subject to the jurisdiction" by statute under its Article I naturalization authority. After Trump v. Barbara, a statute cannot give less than the Citizenship Clause guarantees.