Overview
The principle of jus soli—Latin for "right of the soil"—stands as one of the most consequential pillars of American constitutional law. Codified in the Citizenship Clause of the Fourteenth Amendment, this doctrine guarantees automatic citizenship to virtually every child born within U.S. territory, regardless of the parents' immigration status. For over a century, this interpretation has distinguished the United States from most modern nations that rely on jus sanguinis (right of blood) systems.
On January 20, 2025, President Trump signed Executive Order 14160, marking the first presidential attempt to restrict birthright citizenship via executive action. This triggered immediate nationwide litigation and the most significant challenge to American citizenship law since the Reconstruction Era.
The Constitutional Text
"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."
— U.S. Constitution, Amendment XIV, Section 1
The critical interpretive battle centers on five words: "subject to the jurisdiction thereof." For 127 years, courts have interpreted this phrase to mean territorial and legal jurisdiction—if you're subject to U.S. laws, you're subject to its jurisdiction. The modern challenge argues it requires complete political allegiance, which undocumented immigrants and temporary visitors allegedly lack.
Historical Origins
To understand American birthright citizenship, one must navigate the feudal laws of England from which the American legal tradition sprang. Unlike Roman civil law, which favored jus sanguinis, English common law operated on the principle of jus soli.
Calvin's Case (1608): The Feudal Foundation
The seminal articulation of jus soli occurred in Calvin's Case, decided by the Court of Exchequer Chamber. Sir Edward Coke established that "subjecthood" (later citizenship) was determined by "ligeance" (allegiance)—a natural, mandatory bond formed at the moment of birth tied to the land itself.
Allegiance was "ascriptive"—ascribed to the individual by birth circumstances rather than chosen. Crucially, this applied even to children of "aliens in amity" (foreigners from friendly nations) born within the realm. Physical location of birth was the determinative factor.
Republican Transformation
American colonists carried common law across the Atlantic. Upon independence, they faced a dilemma: translating the feudal concept of "subject" (implying submission to a monarch) into the republican concept of "citizen" (implying participation in a sovereign people). Despite the shift in terminology, the underlying mechanic of jus soli remained the default rule.
- "Subject" = submission to monarch
- Allegiance = mandatory at birth
- Birth on soil = subjecthood
- "Citizen" = member of sovereign people
- Terminology changed
- Jus soli mechanic preserved
The 14th Amendment
The tragic exception to common law citizenship was the status of African Americans. In Dred Scott v. Sandford (1857), Chief Justice Roger Taney ruled that persons of African descent could not be citizens—they "had no rights which the white man was bound to respect." This radical rejection of jus soli precipitated a constitutional catastrophe requiring complete overhaul after the Civil War.
Civil Rights Act of 1866
Following Union victory, the 39th Congress passed the Civil Rights Act of 1866, declaring that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens." However, Republicans feared a future Congress might repeal this statute. To place birthright citizenship beyond ordinary politics, they enshrined it in the Constitution.
The 1866 Congressional Debates
The Congressional Globe records reveal nuanced understanding of "jurisdiction" that sought to balance universal inclusion with specific, narrow exceptions rooted in international law.
The Conness exchange is perhaps the most dispositive evidence against the restrictionist view. The Framers explicitly considered application to children of non-white, non-citizen immigrants and affirmatively decided to include them.
Key Supreme Court Cases
Three Supreme Court cases form the jurisprudential triad governing birthright citizenship interpretation for over a century.
John Elk, a Native American who renounced tribal allegiance, was denied citizenship. The Court held that tribal members were born into allegiance to a "distinct political community." Being "subject to the jurisdiction" required not just territorial presence but complete political subjection that tribal members lacked at birth.
Elk remains the strongest pillar for modern restrictionist arguments, as it suggests citizenship requires mutual consent—the individual's submission and the state's acceptance.
Wong Kim Ark was born in San Francisco to Chinese parents who were legal residents but legally prohibited from naturalizing under the Chinese Exclusion Acts. In a 6-2 decision, Justice Gray affirmed jus soli, ruling the phrase "subject to the jurisdiction" excludes only:
- Children of foreign diplomats (who enjoy immunity)
- Children born to hostile occupying forces
- Native Americans (per Elk logic)
Wong Kim Ark has been the controlling authority for 127 years. It distinguished "political jurisdiction" from "territorial jurisdiction"—parents subject to U.S. laws means their child is subject to jurisdiction.
The Fuller Dissent
Chief Justice Fuller, joined by Justice Harlan, dissented, arguing for jus sanguinis and a "consensual" theory: a nation cannot have citizens forced upon it without consent. This dissent forms the intellectual basis for the modern challenge—the Trump administration explicitly cites it in Executive Order 14160.
Native American Path to Citizenship
While Wong Kim Ark secured citizenship for immigrant children, Native Americans remained in legal limbo created by Elk v. Wilkins. Their path was statutory rather than constitutional, highlighting Congress's plenary power over Indian affairs.
Offered citizenship to Native Americans who accepted individual land allotment and "adopted the habits of civilized life"—a conditional offer requiring assimilation and dissolution of tribal identity.
Granted citizenship to all non-citizen Indians born within U.S. territorial limits—finally rectifying the exclusion. Crucially, Congress granted citizenship while tribes remained sovereign entities.
Because the 1924 Act was a statutory grant, restrictionists argue the constitutional meaning of "jurisdiction" (as defined in Elk) remains intact. They claim Congress could similarly restrict citizenship to children of undocumented immigrants via statute—or that the Executive can "restore" the original meaning.
Modern Intellectual Challenges
For most of the 20th century, Wong Kim Ark was viewed as settled law applying to all U.S.-born children. Starting in the 1980s, a conservative legal movement emerged to challenge this interpretation, driven by concerns over illegal immigration.
Schuck & Smith: "Citizenship Without Consent" (1985)
Peter Schuck and Rogers Smith proposed distinguishing "ascriptive" citizenship (automatic by birth) from "consensual" citizenship (requiring the polity's consent). They argued: while the U.S. consents to legal residents' presence, it has explicitly denied consent to undocumented immigrants. Therefore, their children are not born "subject to the jurisdiction" in the political, consensual sense.
John Eastman: The Originalist Critique
Legal scholar John Eastman argued Wong Kim Ark was wrongly decided or over-read. He contends "subject to the jurisdiction" means "complete, political jurisdiction"—not just being subject to traffic laws. Under this view, if a parent owes allegiance to a foreign sovereign, their child cannot be a birthright citizen unless granted permanent residency.
Legislative Failures (1990s–2019)
Attempted to deny public education to undocumented children. Largely defeated or struck down.
"Birthright Citizenship Act" introduced repeatedly by Rep. Steve King. Never passed either chamber—failed to gain sufficient traction even among Republicans.
These legislative failures solidified the strategy among restrictionists that executive action or a new Supreme Court ruling—bypassing Congress—would be required to effect change.
Executive Order 14160
Signed January 20, 2025 • Effective Date: February 19, 2025
The first presidential attempt to restrict birthright citizenship via executive action in American history.
Key Provisions
The Order directs federal agencies (State Department, SSA, DHS) to cease issuing citizenship documents to children born after February 19, 2025, unless at least one parent is:
- U.S. Citizen
- Lawful Permanent Resident (Green Card)
- Children of undocumented immigrants
- Children of temporary visa holders (students, H-1B, tourists)
Legal Justification
The Order explicitly cites the dissent in Wong Kim Ark and the ruling in Elk v. Wilkins, asserting that "subject to the jurisdiction" requires total, exclusive allegiance that temporary visitors and undocumented immigrants do not possess. It frames the policy as a "restoration" of the original 14th Amendment meaning, correcting what it calls a century-long "misinterpretation."
Trump v. CASA, Inc.
Within hours of EO 14160's signing, lawsuits were filed across the country. Federal district judges issued "universal injunctions" blocking the Order nationwide, citing Wong Kim Ark as binding precedent. The DOJ appealed—not initially on the merits of citizenship, but on the scope of lower courts' power.
Writing for the majority, Justice Amy Coney Barrett held that a single district judge should not be able to dictate national policy through injunctions that bind the government regarding non-parties.
The Court did NOT rule on whether EO 14160 is constitutional. By striking down nationwide injunctions, the Order could potentially take effect in states or against individuals not party to specific lawsuits—creating a fragmented legal landscape where citizenship depends on which state you're born in.
The Fractured Landscape
Led by Washington, including CA, NY, IL, MA, NJ
Order could take effect absent class certification
Trump v. Barbara
Following the CASA ruling, the ACLU successfully certified a nationwide class of "all children born in the U.S. to non-citizen parents" in the Barbara case in New Hampshire. The First Circuit upheld the preliminary injunction. On December 5, 2025, the Supreme Court granted certiorari to decide the substantive constitutional question.
Arguments Before the Court
- Elk parallel: tribal allegiance = foreign allegiance
- Consent theory: U.S. must accept parents' presence
- Policy: Framers never intended "birth tourism"
- Wong Kim Ark is controlling for 127 years
- 1866 debates: Conness explicitly included immigrants
- 8 U.S.C. § 1401 codifies birthright; EO can't repeal statute
Amicus Landscape
The case has drawn enormous attention from amici curiae. Supporting the administration: conservative scholars, Claremont Institute, and states like Tennessee and Iowa. Supporting respondents: 208 Members of Congress (House Democrats), historians, and constitutional law scholars detailing English common law roots and explicit 1866 Congressional intent.
Global Context
The controversy places the United States at a crossroads between two competing global norms of citizenship acquisition.
Citizenship inherited from parents, regardless of birthplace. Dominant in Europe, Asia, Africa.
- UK: Abolished automatic jus soli in 1981
- France: Requires residency period
- Japan/S. Korea: Strict jus sanguinis
Citizenship automatic by birth on territory. Standard in the Western Hemisphere.
- United States: Unrestricted (challenged)
- Canada: Unrestricted jus soli
- Mexico/Brazil/Argentina: Jus soli standard
Opponents of restriction argue jus soli is a distinct American constitutional value that rejects hereditary underclasses—a "caste system" the 14th Amendment specifically abolished. Restricting citizenship would create a population of native-born non-citizens, similar to ancient Athens' permanently excluded "Metics."
Stakes & Outlook
Trump v. Barbara represents the most significant challenge to American citizenship definition since the Reconstruction Era. The Court must resolve the tension between two interpretations of "jurisdiction."
The Central Legal Question
"You are subject to U.S. laws → you are subject to jurisdiction → your child born here is a citizen."
"You must owe exclusive allegiance and be accepted by the sovereign for your child to be a citizen."
If Court Upholds EO 14160
- Statelessness Risk: Millions of children potentially born stateless if parents' home countries don't recognize them
- Bureaucratic Transformation: Every birth requires parental immigration status vetting; hospitals become enforcement nodes
- Constitutional Reversal: Effectively overturns 127 years of precedent; opens door to further restrictions
If Court Strikes Down EO 14160
- Reaffirmation: Cements jus soli as unalterable constitutional right
- Legislative Endpoint: Likely ends statutory attempts to restrict birthright citizenship
- Amendment Push: Intensified calls for constitutional amendment among restrictionists
Current Litigation Status (December 2025)
| Case Name | Jurisdiction | Status | Key Issue |
|---|---|---|---|
| Washington v. Trump | W.D. Wash. | Active | 22 States suing; protected by injunction |
| Trump v. CASA, Inc. | Supreme Court | Decided | Universal injunctions prohibited (6-3) |
| Trump v. Barbara | Supreme Court | Cert Granted | Substantive constitutionality; decision 2026 |