Does the Constitution Guarantee Birthright Citizenship?

The liberty principle for this Freedom Friday concerns birthright citizenship. This topic sprung into the national spotlight on January 20, 2025, when newly inaugurated President Donald Trump signed an executive order to end birthright citizenship. Soon thereafter, 22 states sued to block the executive order, and nationwide debates began over who is granted birthright citizenship under the Fourteenth Amendment to the U.S. Constitution.

Most people today believe that everyone born on American soil is automatically a citizen of the United States. However, Amy Swearer, a senior legal fellow at The Heritage Foundation, questioned in a recent Prager University video if the Constitution really grants citizenship to anyone born on U.S. soil.  What are the legal issues behind birthright citizenship? Quinn Delamater reported on the Swearer video in his article published at The Daily Signal. 

While the 14^th Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” Swearer said that this raises the question, who is born subject to U.S. jurisdiction?

She cited the case of Dred Scott v. Sanford, where the Supreme Court rules in 1857 that black Americans could never be U.S. citizens. The Dred Scott decision was overturned by the 14^th Amendment, solving the issue of citizenship, but only as it related to race, Swearer said.

Today, we “now interpret these words to make citizens of virtually anyone born on U.S. soil, under all circumstances,” said Swearer.

The legal scholar cited two specific cases from the 1800s that clearly indicated the understanding that only those “born within the jurisdiction and allegiance of the United States” be granted citizenship.

In 1885, Richard Gresser’s citizenship was rejected because he was born on American soil while his parents were visiting from Germany, where they returned to soon after his birth.

In 1890, Mary Devereux, an Irish citizen visiting America, was taken off a harbor ship in New York to give birth to her child before reboarding the ship. The child’s citizenship was also denied.

In both instances, a grant of citizenship was not seen as necessary when the person had no political allegiance to America, according to Swearer.

Swearer said that a case often cited to back arguments for birthright citizenship is the Supreme Court ruling in United States v. Wong Kim Ark in 1898. In that case, the court ruled in favor of a Chinese man claiming citizenship after being born to immigrant parents in America.

While some claim this set the precedent for a mandate for all birthright citizenship, Swearer said that this is a misinterpretation.

“The Wong decision was meant to undo the immoral Chinese Exclusion Act of 1882,” Swearer said. “So, universal birthright citizenship isn’t required by the 14^th Amendment’s text or historical context. It’s inconsistent with the earliest legal interpretations of the amendment. And it isn’t compelled by Supreme Court precedent.”