Despite what some legal scholars claim, the Citizenship Clause of the 14th Amendment does not extend citizenship to children born in the United States whose parents are illegal aliens, or for that matter, legal aliens such as tourists or foreign diplomats.
This also applies to our good friend, Professor John Yoo. On December 10, he published a op-ed It insists that arguments for a narrower interpretation of the Citizenship Clause must “ignore the plain text of the Constitution, the weight of the historical evidence from the time of the ratification of the 14th Amendment, and more than 140 years of continuous government practice and legal interpretation.”
Birthright advocates ignore the contrary evidence that shows their interpretation is wrong. The language in the Citizenship Clause of the 14th Amendment reads: “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens.
Yet Yoo and others argue that everyone born in the US is a citizen, regardless of the legal status of their parents. They dismiss any opposing view as a modern reinvention promulgated by a few outlier academics at the Claremont Institute. But there are many other scholars who have added their voices to a growing number of scholars who challenge this preferred interpretation.
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Olga Urbina and her nine-month-old son Ares Webster take part in a protest outside the U.S. Supreme Court over President Donald Trump’s move to end birthright rights as the court hears arguments on the injunction on May 15, 2025 in Washington, DC. (DREW ANGERER/AFP via Getty Images)
In recent years, we, along with other respected legal scholars such as Professors Kurt Lash, Ilan Wurman, Randy Barnett, and Samuel Estreicher, have produced substantive research that significantly undermines citizens’ birthright claims.
Proponents quote 18th-century English lawyer William Blackstone on the common law rule on citizenship. But they omit any mention of prominent American jurist Joseph Story, who wrote in his 1834 legal treatise that a “reasonable qualification” of the common law rule would be to exclude U.S.-born children of aliens who are only temporarily present in the country.
Also conspicuously absent from most analyzes is the Civil Rights Act of 1866, in which Congress first defined the limits on birthright rights and served as the basis for the 14th Amendment. That statute made citizens only those who were born in the United States and “not subject to any foreign power.”
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Senator Lyman Trumbull – one of the primary authors of the Citizenship Clause and sponsor of the 14th Amendment – explained that Congress deliberately crafted this language to exclude U.S.-born children from parents who owed the nation only qualified and temporary allegiance under the common law rule. This applies to all children born to alien parents who owe their primary and permanent political loyalty to their country of birth, and not to the US
It is true that the 14th Amendment uses different language. However, legislative history makes it clear that the change was not intended to repeal the Civil Rights Act, but to more adequately exclude Native Americans who were not considered American citizens even if they were born in America until the passage of the Indian Citizenship Act in 1924. Why? Because, the Supreme Court said in 1884 in Elk v. Wilkins, they owed their “immediate allegiance” to their tribal governments, not to the United States.
As Senator Reverdy Johnson, another sponsor of the 14th Amendment, explained, Congress understood that “subject to the jurisdiction thereof” constitutionalized the very same principles of citizenship as those in the Civil Rights Act: “The one thing which this Amendment provides is, that all persons born in the United States, and not subject to any foreign power…shall be deemed to be citizens of the United States.”
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Moreover, in 1870, Congress literally re-enacted the Civil Rights Act, and for seventy years both courts and scholars understood the two definitions to be consistent and complementary. Yoo never mentions this history.
Also not mentioned are the influential adherents of American legal commentary who, in the decades following its ratification, interpreted the jurisdictional language of the Citizenship Clause in a manner that is now dismissed as a “misinterpretation” of the phrase “subject to the jurisdiction thereof.” Perhaps the famous jurist Thomas Cooley was wrong when he explained that the phrase meant “the entire jurisdiction to which citizens in general are subject, and not any qualified and partial jurisdiction, such as may consist of allegiance to another government.” But this seems worthy of substantive refutation rather than silence.
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Also conspicuously absent from most analyzes is the Civil Rights Act of 1866, in which Congress first defined the limits on birthright rights and served as the basis for the 14th Amendment.
In the same vein, Yoo emphasizes that his view is consistent with “more than 140 years of continuous government practice.” This is curious given early executive branch decisions rejecting citizenship claims on behalf of U.S.-born children based on their parents’ immigration status.
In the 1885 case of Richard Greisser, his German father and Swiss mother never became permanent residents of the US and returned to Germany with the toddler. Secretary of State Thomas Bayard concluded that Greisser was born “subject to a foreign power” and not “subject to the jurisdiction of the United States,” despite literally being born on American soil. Similarly, in the 1890 case of Mary Devereaux, the Justice Department determined that because Devereaux was ultimately denied entry into the United States, her U.S.-born daughter was also not a U.S. citizen.
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And we cannot fail to mention the famous Slaughter House cases of 1873, in which the Supreme Court said that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign states born in the United States.”
Perhaps five justices will agree with the modern misinterpretation of the citizenship clause that supporters are pushing for. But to do that, they will have to ignore the historical evidence about the proper application of the Citizenship Clause, which does not make citizens of the United States those born to parents who are in this country illegally.
Hans von Spakovsky is a former senior legal fellow at The Heritage Foundation.
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