Can the Supreme Court End Birthright Citizenship? Understanding How the 14th Amendment Could Be Reinterpreted

Understanding How the 14th Amendment Could Be Reinterpreted ending Birthright Citizenship

Introduction

On January 20, 2025, former President Donald Trump, upon his return to the White House, signed an executive order titled Protecting the Meaning and Value of American Citizenship. This order reignited the debate over birthright citizenship, a principle enshrined in the 14th Amendment of the U.S. Constitution, which grants automatic citizenship to nearly all individuals born on U.S. soil. While the order does not immediately change the law, it aims to provoke a legal challenge, setting the stage for the Supreme Court to reconsider the scope of birthright citizenship.

This article breaks down the arguments surrounding birthright citizenship, explores how the courts might approach this issue, and examines the potential implications for millions of families in the United States. It also delves into the history and meaning of the 14th Amendment, emphasizing the importance of looking beyond rhetoric and understanding the constitutional principles at stake.

What Is Birthright Citizenship?

Birthright citizenship, rooted in the Citizenship Clause of the 14th Amendment, states:

“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 language seems clear, but the phrase “subject to the jurisdiction thereof” has been the subject of legal debate since its inception. Historically, the Supreme Court’s 1898 decision in United States v. Wong Kim Ark affirmed that children born on U.S. soil to non-citizen parents—if they are not diplomats or enemy combatants—are entitled to citizenship.

Trump’s Executive Order: A Strategy for Legal Challenge

Trump’s executive order seeks to reinterpret “subject to the jurisdiction thereof” to exclude children born to undocumented immigrants or temporary visitors. While such a change cannot be made through executive action alone, the order’s primary goal is to spark legal challenges that will lead to Supreme Court review.

This strategy acknowledges that only the judiciary, particularly the Supreme Court, has the power to redefine constitutional principles. With the current Court’s conservative majority, the chances of a reinterpretation of the 14th Amendment are higher than ever before.

Allegiance and Political Subjection: The Core Arguments in Birthright Citizenship

At the heart of the debate over birthright citizenship is the interpretation of “subject to the jurisdiction thereof.” Those advocating for a narrower interpretation argue that:

1. Allegiance: The framers of the 14th Amendment likely intended for “jurisdiction” to require full political allegiance to the United States. Undocumented immigrants or temporary visitors, they argue, do not owe full allegiance, as their primary ties remain to their home countries.

2. Political Subjection: Being “subject to the jurisdiction” of a nation involves more than obeying its laws. It implies a deeper, voluntary submission to its political authority, including renouncing allegiance to any other government. Advocates argue that undocumented immigrants and temporary visitors fail to meet this standard.

3. Historical Context: Supporters of this view point to the framers’ debates during the drafting of the 14th Amendment, as well as the earlier Civil Rights Act of 1866, which explicitly excluded individuals “subject to any foreign power.”

If the Supreme Court finds these arguments persuasive, it could reinterpret “subject to the jurisdiction thereof” to exclude individuals without lawful status or permanent ties to the U.S., such as undocumented immigrants or temporary visitors.

The Supreme Court: Composition and Likelihood of Reinterpretation of the 14th Amendment

The current Supreme Court’s ideological makeup makes it more likely to reinterpret the 14th Amendment rather than completely overturn Wong Kim Ark. The Court is composed of:

• Four Originalists (Justices Thomas, Alito, Gorsuch, and Barrett): These justices often focus on the original meaning of the Constitution, making them more inclined to adopt a narrower interpretation of “jurisdiction.”

• Two Pragmatists (Chief Justice Roberts and Justice Kavanaugh): While conservative, these justices are cautious about overturning precedent outright. They may favor narrowing the application of Wong Kim Ark rather than discarding it altogether.

• Three Liberals (Justices Sotomayor, Kagan, and Jackson): These justices are likely to defend the broad interpretation of the 14th Amendment and oppose efforts to limit birthright citizenship.

Given this composition, a decision to narrow the interpretation of “subject to the jurisdiction thereof” could secure a majority, with the originalists forming the core and one or both pragmatists joining them. This approach would avoid overturning Wong Kim Ark outright while significantly altering its application.

The Contributions of U.S.-Born Children of Immigrants

If birthright citizenship is narrowed, the consequences would extend far beyond legal status. U.S.-born children of undocumented immigrants have long contributed to the nation’s economy, society, and security:

• Military Service: Many U.S.-born children of undocumented immigrants serve in the armed forces, defending the country and embodying the values of loyalty and commitment.

• Essential Workers: These individuals work as teachers, nurses, and in other vital professions that sustain communities and contribute to public welfare.

• Economic Impact: By participating in the workforce, paying taxes, and driving innovation, these citizens play a crucial role in maintaining America’s economic vitality.

Eliminating or restricting birthright citizenship risks depriving the U.S. of a significant segment of its future workforce and military recruits, undermining the nation’s long-term strength.

Historical Context: Why It Matters

The 14th Amendment was ratified in the aftermath of the Civil War to ensure citizenship for formerly enslaved individuals and their descendants. Its broad language reflects a commitment to equality and inclusion, principles that have shaped the nation’s identity.

The debate over birthright citizenship today raises questions about whether the framers anticipated modern immigration issues. While advocates for narrowing the 14th Amendment focus on historical interpretations of allegiance, critics warn that such arguments could erode the amendment’s original purpose of ensuring that all individuals born on U.S. soil have access to the full rights and responsibilities of citizenship.

Conclusion

The future of birthright citizenship hangs in the balance. Trump’s executive order has set the stage for a legal battle that could redefine the 14th Amendment and reshape the meaning of citizenship in America. With the Supreme Court’s current composition, the likelihood of narrowing the interpretation of “subject to the jurisdiction thereof” is high, even if Wong Kim Ark remains technically intact.

As this debate unfolds, it is essential to move beyond soundbites and understand the deeper legal and historical issues at play. The implications of any change to birthright citizenship extend far beyond the immigrant community, touching the core of what it means to be an American.

For millions of families, this is not just a legal question—it is a matter of identity, opportunity, and belonging.

If you’re looking for guidance through the complexities of immigration law, we’re here to help. Call us today to schedule your appointment!