Donald Trump’s proposal to end birthright citizenship through an executive order raises profound legal and constitutional questions. Specifically, the order seeks to restrict citizenship to children born to U.S. citizens or lawful permanent residents, effectively excluding children born to undocumented immigrants or individuals on temporary visas. While this idea appeals to some as a way to address immigration concerns, it collides head-on with the plain language of the Constitution and over a century of legal precedent.
The Text of the Fourteenth Amendment
The heart of the legal challenge lies in the 14th Amendment, ratified in 1868, 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.”
This language is broad and unequivocal. The only limitation—being “subject to the jurisdiction” of the United States—was never intended to exclude foreigners or their children. As the historical debates surrounding the amendment show, Congress was clear that the phrase excluded only certain narrow categories: children of foreign diplomats, lawful foreign combatants, and members of sovereign Native American tribes (who had unique legal statuses at the time). It was not intended to exclude individuals subject to the laws of the United States, which includes nearly everyone within its borders, regardless of immigration status.
The Supreme Court on Birthright Citizenship
The Supreme Court reinforced this interpretation in United States v. Wong Kim Ark (1898), which explicitly affirmed that children born on U.S. soil to non-citizen parents are citizens under the 14th Amendment. In Plyler v. Doe (1982), the Court further emphasized that undocumented immigrants and their children are “persons” entitled to due process and equal protection under the law. Together, these cases have established a bedrock principle of American constitutional law: birthright citizenship is the rule, and exceptions are narrowly defined.
The Argument Behind Trump’s Order
Supporters of Trump’s order, such as legal scholars John Eastman and Edward Erler, argue that the 14th Amendment has been misinterpreted. They contend that being “subject to the jurisdiction” of the U.S. implies a deeper allegiance or consent to American sovereignty—something they claim undocumented immigrants and temporary visitors lack. However, this interpretation distorts the historical context.
As James Madison explained, birthplace has traditionally been the clearest marker of citizenship, rooted in the principle of jus soli (the law of the soil). Edward Bates, Lincoln’s attorney general, explicitly stated that children born in the U.S. to alien parents are “native-born citizens” and do not require naturalization. This understanding prevailed in 1866 when Congress debated and passed the citizenship clause, despite opposition that highlighted concerns about groups like Chinese laborers or Romani people. The framers of the 14th Amendment firmly rejected arguments to exclude these groups, affirming that all persons born on U.S. soil should be treated equally under the law.
The Limits of Executive Authority
Beyond its constitutional flaws, Trump’s executive order faces practical and legal barriers. An executive order cannot override the Constitution or binding Supreme Court precedent. To change birthright citizenship, a constitutional amendment would be required—a far more rigorous and democratic process than unilateral executive action.
Trump’s attempt to apply the order prospectively, limiting its impact to future births, does not solve the fundamental problem. The doctrine of stare decisis—which respects the stability of long-standing legal principles—will weigh heavily against overturning Wong Kim Ark. Generations of Americans have relied on the principle that birth on U.S. soil guarantees citizenship. Disrupting this reliance could lead to significant legal, social, and economic upheaval.
The Policy Debate
While there may be legitimate policy debates about birthright citizenship and its implications for immigration, this is a question for Congress and the American people, not the president acting alone. Whether we should reconsider birthright citizenship in an era of increased global migration is a separate issue from what the Constitution requires today. Any changes must be made through lawful means that respect our democratic and constitutional framework.
Conclusion
Trump’s executive order to limit birthright citizenship is an audacious attempt to rewrite constitutional law by fiat. The plain text of the 14th Amendment, its historical context, and over a century of Supreme Court precedent all affirm that birthright citizenship extends to nearly all individuals born on U.S. soil. While immigration policy may require thoughtful reform, bypassing the Constitution is not the answer. America is a nation of laws, and those laws—enshrined in our Constitution—must guide us forward.
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