History of Birthright Citizenship: A Founding Principle of the U.S.

Zeynep Karatas, Impact Fund Spring Grants Intern

EO 14160 and Barbara v. Trump

On January 20th, 2025, President Donald Trump issued Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship,” aiming to end birthright citizenship. In response, numerous civil rights groups, including the ACLU, the Asian Law Caucus, and the NAACP Legal Defense and Education Fund, filed a class action lawsuit named Barbara v. Trump. The lawsuit, one of many pending cases on the issue, argues that EO 14160 is incongruent with the history and text of the 14th Amendment, Supreme Court case law, federal statute, and the understanding and practice of all three branches of the federal government for more than a hundred years.

Within one month of Barbara’s filing, the court issued a preliminary injunction enjoining the government from enforcing the Executive Order against a nationwide class of babies targeted by the Order. On April 1, 2026, the Supreme Court heard oral arguments in the case and will likely decide by July 2026. The results of this case will not only determine the fate of the Executive Order, but also the meaning of the Fourteenth Amendment and the definition of who can be an American.

The Supreme Court will likely rule on Barbara v. Trump in the next few weeks. This ruling may terminate birthright citizenship, a vital right that has protected the rights of children born in the U.S. since the country’s founding.

This blog post explores the history of birthright citizenship and the 14th amendment.

Jus soli: Right of the Soil

In the United States, birthright citizenship traces its roots to the British common law system; more specifically, it is known as jus soli, a Latin phrase meaning the “right of the soil.” Jus soli citizenship indicates that individuals who are born in a country’s soil are automatically granted that nation’s citizenship, regardless of their family’s status. This approach differs from other frameworks such as jus sanguinis that tie citizenship to the parents’ status.

The Big Exception: Dred Scott Decision and African Americans’ Experience

While jus soli has been a core principle of the country since its inception, enslaved peoples or even free African Americans were not granted citizenship under it uniformly. Such inconsistencies were codified by the Supreme Court’s Dred Scott v. Sandford decision, which held that Black people could not qualify as citizens on the basis of their race.

The 14th Amendment has been instrumental in ensuring jus soli’s universal application across the U.S. and addressing the marginalization of Black Americans.

The debate over African Americans’ citizenship rights was tightly bound to the conflict over slavery and its expansion, which ultimately culminated in the outbreak of the Civil War. Even after the Union’s success, many ex-Confederate states criminalized African Americans to reintroduce slavery under the guise of prison labor. To address these efforts, Congress passed the Civil Rights Act of 1866 and later the Fourteenth Amendment in 1868 to legally enshrine Black Americans’ citizenship rights.

The 14th Amendment

During the debates for the 14th Amendment’s passage and scope, discussions around extending birthright citizenship to other groups also emerged. Congress recognized the common law exception to birthright citizenship for the children of foreign diplomats, who remain direct subjects of their home countries. Congress also excepted children born to Native American sovereign tribes because of the analogous inter-sovereign dynamics between the tribes and the federal government.

However, Congress determined that the children of immigrants would be entitled to birthright citizenship, regardless of their parents’ documentation status. For example, Senator Edgar Cowan of Pennsylvania stressed that passing the 14th Amendment with such universal language would also grant citizenship to the children of Romani communities in Pennsylvania and Chinese communities in California. In response to this, Senator John Conness of California said that he was “entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”

The Supreme Court and Congress have both legally codified birthright citizenship throughout U.S. political and legal history.

These debates illustrate that the original drafters of the 14th Amendment were aware that its language would generally grant citizenship to children born in the United States—regardless of their parents’ immigration status—and still went ahead with its passage. Thus, the evidence refutes the foundational premise of EO 14160, that the 14th Amendment’s citizenship clause applies only to formerly enslaved peoples. 

Supreme Court Rules in United States v. Wong Kim Ark

The Supreme Court further affirmed these interpretations in the 1898 case, United States v. Wong Kim Ark. Wong Kim Ark was born in the United States to parents who could not become naturalized citizens because of the Chinese Exclusion Act. He was not allowed to return to the U.S. after a trip to China, and the justification given was that he was not considered a citizen. In a 6-2 majority opinion, the Supreme Court held that all people who were born on U.S. soil were U.S. citizens under the 14th Amendment, regardless of their parents’ immigration status, underscoring the basic jus soli principle.

Congress Further Codifies Birthright Citizenship

Congress wrote birthright citizenship into law in 1940, at 8 U.S. Code § 1401, Nationals and citizens of United States at birth. The statute borrowed language directly from the 14th Amendment. Congress acted with knowledge of the lengthy precedent of the 14th Amendment, knowing that its language had provided birthright citizenship to all individuals born on U.S. soil, regardless of their ethnic identities, for the previous 75 years.

In 1940, the use of the 14th Amendment’s language legally entrenched universal birthright citizenship. Embracing the jus soli principle has allowed the U.S. to build a diverse nation.

Today, we must continue to defend birthright citizenship as the vital right that it is. 

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Production Credits:

Author: Zeynep Karatas

Editors: Winnie Kao, Lindsay Nako, Rena Lu, Joshua Kay, Amy Daniewicz

Web Producer: John Henry Frankel

Web Editor: Teddy Basham-Witherington