The Citizenship Clause of the 14th Amendment of the Constitution declares that all persons born in the United States and "subject to the jurisdiction thereof" are U.S. citizens. Several commentators have argued, and some courts have held, that the clause confers birthright citizenship on children of undocumented immigrants, because such children are subject to the jurisdiction of United States laws. Some have also argued and held, respectively, that the Supreme Court adopted this view more than a century ago, in United States v. Wong Kim Ark, 169 U.S. 649 (1898). The issue arises in the context of President Trump's executive order, issued on his first day in office, barring birthright citizenship for children of undocumented immigrants, where neither immigrant parent is a U.S. citizen or a permanent and lawful U.S. resident.
(Immigrants who have entered the United States in violation of its immigration laws are sometimes referred to as "illegal immigrants" and sometimes as "undocumented immigrants." This article will opt to use the latter term.)
This article does not address whether the Citizenship Clause confers birthright citizenship on children of undocumented immigrants, or whether the presidential executive order is valid in concluding it does not. Rather, this article contends that the Supreme Court, in Wong Kim Ark and other cases, has not conclusively resolved the issue, and therefore the court could conclude that the Citizenship Clause does not confer such birthright citizenship without overturning any of its precedents. Such a decision would differ in that respect from other recent Supreme Court decisions that directly overturned its precedents, such as Dobbs v. Jackson Womens' Health Organization, 597 U.S. 215 (2022), which overturned the abortion decision in Roe v. Wade, which is 410 U.S. 113 (1973), and Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which overturned the Chevron deference doctrine established in Chevron U.S.A., Inc. v. NRDC, which is 467 U.S. 837 (1984).
Part one of this article will describe the background of the Citizenship Clause, including the Supreme Court decisions prior to Wong Kim Ark that interpreted the clause. Part two will discuss Wong Kim Ark itself and argue that the decision did not conclusively resolve the birthright citizenship issue, and therefore the issue is an unsettled question of constitutional law.
The Congressional debate surrounding
the Citizenship Clause
The 14th amendment, including the Citizenship Clause, was approved by Congress, ratified by the states, and became part of the Constitution in 1868. As the congressional debate made clear, the Citizenship Clause was intended to overturn the Supreme Court's infamous decision in Dred Scott v. Sandford, 60 U.S. 393 (1857), which had held that slaves were not citizens of the United States. To that end, the Citizenship Clause constitutionalized the Civil Rights Act of 1866 -- adopted shortly after the Civil War -- which provided that all persons born in the United States "and not subject to any foreign power" are U.S. citizens. 14 Stat. 27 (April 9, 1886) (emphasis added.) The principal authors of the Citizenship Clause stated that the clause was "simply declaratory" of the Civil Rights Act and did not include persons born in the U.S. "who are foreigners [or] aliens" (Sen. Howard); that the clause was "establishing no new right, declaring no new principle" (Rep. Wilson); and that the clause applied only to those "not owing allegiance to anyone else" (Sen. Trumbull).
The "subject to the jurisdiction thereof" provision was added to the Citizenship Clause to preclude citizenship for children of foreign diplomats and enemy aliens, because they are not subject to the United States' jurisdiction. Wong Kim Ark, 169 U.S. at 655. Also, the clause was not intended to confer birthright citizenship on Indian children, because Indians were not recognized as United States citizens until the Indian Citizenship Act of 1924 (now codified at 8 U.S.C. § 1401(b)). Id. at 680-81.
Thus, the congressional debate indicated that the Citizenship Clause was not intended to confer citizenship on U.S.-born children whose parents are foreign aliens subject to a foreign power. But the debate did not address whether children of undocumented immigrants who entered the United States illegally fall into that category. Congress had not yet adopted laws restricting migration into the United States and did not do so until 1875. Kleindienst v. Mandel, 408 U.S. 753, 761 (1972). Thus, Congress did not consider whether children of undocumented immigrants were U.S. citizens because the issue had not yet arisen.
Supreme Court decisions prior
to Wong Kim Ark
Prior to Wong Kim Ark, the Supreme Court indicated that the Citizenship Clause did not apply to children of foreign aliens, because foreign aliens presumably were allegiant to their native countries. In the Slaughter-House Cases, 83 U.S. 36, 73 (1872), the court stated that the phrase "subject to the jurisdiction thereof" in the Citizenship Clause was intended to exclude children born in the United States whose parents were, inter alia, "citizens or subjects of foreign States." In Minor v. Happersett, 88 U.S. 162, 167-168 (1874), the court stated that the Citizenship Clause must be interpreted under the common law, and that under the common law there are "doubts" whether children whose parents are "aliens or foreigners" are U.S. citizens "without reference to the citizenship of their parents." In Elk v. Wilkins, 112 U.S. 84, 101, 102 (1884), the court held that the Citizenship Clause applies only to children born in the U.S. who owe "direct and immediate allegiance" to the U.S. and owe "no allegiance to any alien power" (and therefore the clause does not apply to Indian children, because as noted above Indians were not recognized as U.S. citizens until 1924).
These Supreme Court decisions cast doubt on whether the Citizenship Clause authorizes birthright citizenship for children of foreign aliens, suggesting that foreign aliens may be allegiant to their native countries rather than the United States. The Supreme Court eventually reached and decided this issue in Wong Kim Ark, which will be discussed in part two of this article.