Birthright Citizenship Under the Fourteenth Amendment

After the Civil War, the nation faced the challenge of Reconstruction. The Southern states’ attempt to secede from the Union had failed, and the Emancipation Proclamation had transformed their societal structure.

With the abolition of slavery, the legal status of four million formerly enslaved individuals was immediately altered. The nation stood in a new place, without a framework to guide it forward. Historians call this period the Reconstruction Era. 

During this time, Congress had several tasks to unify the nation. One of their main tasks was articulating the legal rights of the formerly enslaved population, particularly in the South. They needed to ensure this population enjoyed equal protection under the law. The power dynamics between the formerly enslaved and their former owners did not change overnight. 

President Lincoln issued the Emancipation Proclamation during the war under his war powers, but that was insufficient to change the legal status of the formerly enslaved. The federal government had to intervene.

An earlier U.S. Supreme Court decision, Dred Scott v. Sandford, held that enslaved persons descended from Africans were not American citizens. Congress also had to address the pervasive racial discrimination that the formerly enslaved faced. They tried with the Civil Rights Act of 1866, but it was insufficient to address all the issues this population faced. Numerous state governments in the South exhibited hostility towards the concept of equality, enacting legislation that aimed to curtail the rights of formerly enslaved individuals.

Finally, Congress had to address the rights of these new citizens. The ratification of the Fourteenth Amendment helped them accomplish these goals and more.

The Fourteenth Amendment is a sweeping amendment that has shaped American life since Reconstruction. The Fourteenth Amendment has been at the center of many important civil rights cases, including desegregation in public schools (Brown v. Board of Education) and marriage equality (Obergefell v. Hodges).

This amendment contains several clauses, each addressing a separate issue, such as due process of law. These clauses include the following:

• The citizenship clause
• The privileges and immunities clause
• The due process clause
• The equal protection clause
• The apportionment clause 
• The disqualification clause
• The enforcement clause

This FindLaw article focuses on the citizenship clause of the Fourteenth Amendment of the U.S. Constitution.

The Citizenship Clause

The citizenship clause established birthright citizenship in the United States. You can find the citizenship clause in Section 1 (first sentence) of the Fourteenth Amendment. It reads as follows:

“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…”

The text of this clause is straightforward.  It deals with two types of citizenship: birthright citizenship and citizenship by naturalization. In the United States of America, we acquire birthright citizenship in one of two ways:

• Through birth on American “soil” (this includes U.S. Territories, like the U.S. Virgin Islands and Guam)
• If one or both of our parents were American citizens when we were born (so if you were born in Italy to an American mother)

Citizenship by naturalization occurs when a non-citizen acquires U.S. citizenship after birth.  In the U.S., you can acquire citizenship by naturalization once you meet the requirements of the Immigration and Nationality Act.  Birthright citizenship is not applicable in all circumstances.  For example, children born in the U.S. to diplomats cannot claim birthright citizenship.

Although the clause mentions state citizenship, it does not define it. 

Native American Citizenship

Notably, the citizenship clause excluded Native Americans. At that time, they were usually members of sovereign tribal nations and, therefore, not subject to the jurisdiction of the United States.

That changed with the Indian Citizenship Act of 1924, through which the federal government granted Native Americans full citizenship rights.

Overturning Dred Scott

Through this clause, Congress overturned the Dred Scott decision and guaranteed citizenship rights for the formerly enslaved. 

Supreme Court Interpretation

Although the text of the Citizenship Clause is clear, as was Congress’ intent, the Supreme Court has still had to clarify issues of birthright citizenship. These Supreme Court cases help us understand birthright citizenship today. 

Elk v. Wilkins

Elk v. Wilkins established (for a time) that Native Americans could not claim birthright citizenship. In this case, John Elk, a Native American, was born on a Native American reservation in the United States.  In 1880, he attempted to register to vote in Omaha, Nebraska; the registrar declined his application because he was not a U.S. citizen. 

Although Elk had “severed” his tribal citizenship and claimed U.S. citizenship, the Supreme Court determined he was not a citizen. 

The Court noted that Native American tribes were “alien nations,” and as such, the members of these tribes owed their loyalty to their tribe and not the United States.  Therefore, they were not “subject” to the jurisdiction of the United States. 

But, as noted above, Congress granted Native Americans citizenship with the Indian Citizenship Act of 1924.

United States v. Wong Kim Ark

The Supreme Court had to provide some judicial review and finality to the issue of birthright citizenship in 1898. In United States v. Wong Kim Ark, the Supreme Court held that the Fourteenth Amendment grants citizenship to all persons born in the country without regard to race or nationality. 

In this case, the respondent, Wong Kim Ark, was born in 1873 in the U.S. to Chinese parents who were lawful permanent residents. 

Under the Naturalization Act of 1802, Wong’s parents could not become naturalized citizens because they were not white.  Moreover, in 1882, Congress passed the Chinese Exclusion Act, which banned almost all Chinese immigration for ten years.  In 1895, despite being born in the U.S., Wong was denied entry to the country after a visit to China. 

Interestingly, the Court only considered the narrow question of whether a child born to Chinese parents on U.S. soil is a U.S. citizen. Discrimination in immigration persisted until the Immigration and Nationality Act passed Congress in 1965.

Affroyim v. Rusk

The Supreme Court has also ruled that Congress has no power to strip a U.S. citizen of their citizenship. In Affroyim v. Rusk, the Court determined that the Nationality Act of 1940 was unconstitutional.

Under the Nationality Act of 1940, U.S. citizens who vote in a foreign election lose their citizenship. In this case, the petitioner was a naturalized citizen of Polish descent. In 1951, while living in Israel, he voted in an Israeli election. In 1960, the State Department refused to renew his passport because he lost his citizenship in 1951 when he voted in the Israeli election.

The Court acknowledged that Congress did not have the power under the Constitution to strip away citizenship. It held that the Fourteenth Amendment was designed to protect citizens from any “congressional forcible destruction” of their citizenship.

Trump v. Barbara

In 2026, the Supreme Court addressed the issue head-on in Trump v. Barbara. The case stemmed from Executive Order No. 14160, which sought to deny citizenship to children born in the U.S. to parents who were either unlawfully present or on temporary visas.

In a landmark decision, the Court held that the Executive Order was unconstitutional. Affirming the principle of jus soli (right of the soil), the majority opinion stated that the Fourteenth Amendment‘s phrase “subject to the jurisdiction thereof” refers to the U.S. government’s authority over all people within its territory, with very narrow exceptions.

The Court’s reasoning relied heavily on:

• English common law: It traced the history of birthright citizenship to its English roots, where it applied to children of foreigners even on a “temporary sojourn.”
• The Fourteenth Amendment‘s purpose: It emphasized that the amendment was intended to be a broad repudiation of the race-based citizenship denial in Dred Scott v. Sandford.
• Precedent: The Court confirmed that its 1898 decision in United States v. Wong Kim Ark had already established that the citizenship clause was “declaratory” of the common law rule, granting citizenship to nearly all children born in the country.

The ruling in Trump v. Barbara settled the long-standing political and legal debate, confirming that children born in the U.S. are citizens at birth, regardless of their parents’ immigration status.

Historical Controversies Settled by Trump v. Barbara

Prior to the Supreme Court‘s 2026 decision in Trump v. Barbara, the application of birthright citizenship to the children of non-citizens, particularly undocumented immigrants, was a subject of intense political debate.

Opponents argued that the framers of the Fourteenth Amendment only intended to grant citizenship to newly freed slaves and that the phrase “subject to the jurisdiction thereof” should exclude the children of parents who owed allegiance to a foreign government. They argued that because undocumented immigrants and temporary visitors maintain allegiance to their home countries, their children should not automatically become U.S. citizens.

The Supreme Court decisively rejected this view in Trump v. Barbara. The Court clarified that the “jurisdiction” test was not about parental allegiance but about being subject to U.S. law, which applies to nearly everyone physically present in the country. The Court found that arguments for a narrower, domicile-based interpretation were not supported by the amendment’s text, history, or precedent.

Therefore, while the political debate may continue, the legal question has been settled: The Fourteenth Amendment guarantees birthright citizenship to children of non-citizens born on U.S. soil.