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Birthright citizenship is meant to be universal

by Allan J. Lichtman, opinion contributor - 04/01/26 8:00 AM ET

Olga Urbina holds her son, Ares Webster, nine months, as people gather outside the Supreme Court of the United States on Thursday May 15, 2025 in Washington, DC. The court is hearing arguments about lower courts ability to block President Donald Trump’s policy to end birthright citizenship. (Photo by Matt McClain/The Washington Post via Getty Images)

At moments of political anxiety, Americans challenge first principles. Few are more foundational or more misunderstood than birthright citizenship.

The text of the 14th Amendment is plain: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Plain too was the intent of its framers. Their language was not narrow or provisional. Their phraseology was positive, not negative, like that of the amendment’s predecessor, the Civil Rights Act of 1866, which referred to those “not subject to any foreign power.” The framers meant to settle, for all time, the question of who belongs in the American polity, including but not limited to the children of former slaves.

The Birthright Clause did not invent a new idea: it constitutionalized an old one. Under centuries of Anglo-American common law, citizenship followed birth within sovereign territory. The rule was simple: Birth on the soil conferred jurisdiction, which, in turn, conferred citizenship. With rare and well-defined exceptions, such as children of accredited foreign diplomats, children born to enemy forces occupying U.S. territory and, at the time, members of sovereign Native American tribes not subject to U.S. jurisdiction, the place of birth determined citizenship.

The 14th Amendment embedded that principle into the Constitution after the Civil War. It did so because the Supreme Court had declared in Dred Scott that Black Americans could never be citizens. Reconstruction lawmakers understood that if citizenship could depend on ancestry, race or inherited status, it could be denied to anyone. So they wrote the rule in universal terms: citizenship would attach at birth, not by race, parentage, or status.

Sen. Lot Morrill (R-Maine), a key backer of the 14th Amendment, explained that the birthright provision was not innovative legislation but the affirmation of a “grand and fundamental principle.” He asked whether anyone could deny that “the native born is a citizen…by virtue of his birth alone.” Congress acted, he explained, when slavery’s abolition demanded a clear rule.

The architects of the amendment were equally clear about its universal scope. Sen. Lyman Trumbull (R-Ill.), author of the preceding Civil Rights Act of 1866, said that it would make citizens of everyone born in the U.S. “who are subject to our laws,” with only the narrow and obvious exceptions recognized under the common law. Neither race nor immigration status was the dividing line; jurisdiction was.

The Supreme Court confirmed this understanding in 1898 in United States v. Wong Kim Ark. The court held that a child born in San Francisco to parents who were Chinese citizens barred from U.S. naturalization was nonetheless a citizen by birth. At a time of intense anti-Chinese sentiment, the justices traced the rule back to the common law and Reconstruction debates, concluding that the Constitution’s language was “general, not to say universal.” Birth within the United States, with subjection to its laws, was enough.

Even earlier, American courts had recognized this principle. In Lynch v. Clarke (1844), a New York court held that an American-born child was a citizen regardless of her parents’ allegiance to Britain. “Whatever were the situation of his parents,” the judge wrote, birth within the nation’s dominion conferred citizenship.

History makes something else clear. When the 14th Amendment was ratified in 1868, the U.S. had not yet created the elaborate immigration categories debated today. There was no modern distinction between “lawful” and “unlawful” presence. But Congress had already outlawed the international slave trade. Africans smuggled into the country after that ban were brought here in violation of federal law. Yet their American-born children were citizens, instantly and without controversy, under the 14th Amendment.

That fact undermines modern claims that undocumented presence disqualifies a child from citizenship. Reconstruction lawmakers understood that individuals could reside in the United States in ways the law did not authorize or approve. They did not conditi