OPINION: Fixing birthright citizenship: Aligning law with founders’ vision

The 14th Amendment to the U.S. Constitution (1868) declares:

“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.”

Many Americans interpret this language to mean that any child born on U.S. soil is automatically a citizen. However, the critical phrase “subject to the jurisdiction thereof” deserves closer scrutiny. The framers aimed to ensure newly freed slaves and their descendants were recognized as full citizens — not to create universal birthright citizenship.

Republican Sen. Jacob Howard of Michigan, who introduced the citizenship clause, made this intention crystal clear during the debates in Congress. He stated:

“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 ...”

Howard’s words underscore the framers’ understanding that birth within U.S. borders alone was insufficient for citizenship, as "jurisdiction" excluded citizens of another nation, distinguishing between territorial jurisdiction — being subject to U.S. laws while present — and complete jurisdiction, which includes voting, jury duty, running for office and obtaining a passport.

Today’s broad interpretation of birthright citizenship has created significant legal and practical challenges. Critics argue it incentivizes illegal immigration and “birth tourism,” where foreign nationals travel to the U.S. to give birth and secure citizenship for their child. This exploits a system meant to address historic injustices, not to grant advantages to transient individuals.

For example, the Supreme Court case United States v. Wong Kim Ark (1898) is often cited by advocates of universal birthright citizenship. In that case, the court ruled that a child born in the U.S. to lawful, permanent residents was a citizen under the 14th Amendment. However, this precedent does not cover children of illegal immigrants, tourists, or temporary visitors.

Millions of children born in the U.S. to illegal immigrants access public benefits, placing significant strain on taxpayers and social systems. Furthermore, national security concerns arise when adversarial elites exploit birthright citizenship for their offspring, undermining U.S. sovereignty.

The legislative history of the 14th Amendment underscores the framers’ intent to limit birthright citizenship. Modeled on the Civil Rights Act of 1866, the amendment granted citizenship to those born in the U.S. but excluded individuals "subject to any foreign power."

The Supreme Court affirmed this principle in the Slaughterhouse Cases (1872) and Elk v. Wilkins (1884). In Elk, the Court ruled that Native Americans affiliated with tribal governments were not U.S. citizens because they owed allegiance to their tribes. These cases demonstrate that the framers did not view physical birth location alone as sufficient for citizenship. (The Indian Citizenship Act of 1924 later granted U.S. citizenship specifically to Native Americans born in the U.S.)

Revisiting birthright citizenship is not an attack on immigration or America’s heritage as a nation of immigrants. Instead, it is an opportunity to realign citizenship policies with the principles the 14th Amendment was designed to uphold. Citizenship should signify a genuine connection to the nation, rooted in allegiance and shared responsibility.

Proposed reforms could include requiring at least one parent of a U.S.-born child to be a legal permanent resident or citizen. Alternatively, the legal definition of “jurisdiction” could be clarified to exclude individuals with dual allegiances or transient ties. These changes would ensure citizenship reflects both rights and responsibilities, honoring the framers’ original intent.

Former and soon-to-be President Donald Trump has repeatedly vowed to challenge the modern interpretation of birthright citizenship. During his first term, he targeted birth tourism through visa restrictions, and he has suggested issuing an executive order to redefine eligibility for birthright citizenship. Such an order could limit automatic citizenship to children of citizens, forcing a reevaluation of the 14th Amendment by the courts.

Trump’s strategy will provoke a constitutional challenge, ultimately leading to a Supreme Court review. The court would then have the opportunity to reconcile the amendment’s original meaning with modern realities.

Notably, a reevaluation could center on the difference between “temporary jurisdiction” (applying to foreigners physically present in the U.S., legally or illegally) and “complete jurisdiction” (over U.S. citizens). If successful, this approach could restore the framers’ understanding of citizenship, addressing both the immediate concerns of illegal immigration and the broader issue of birth tourism.

Trump’s return to office and the current composition of the Supreme Court could make this the most viable moment in decades to reexamine birthright citizenship. By revisiting the 14th Amendment’s original intent, the nation has an opportunity to craft a citizenship policy that honors its history, addresses its challenges, and secures its future.

Courtney served 20 years as a nuclear engineering officer aboard submarines and 15 years as a graduate school instructor. A political independent, he spends his time chasing his eight grandchildren around Moscow.