Who is an American? Who is a citizen? That question was definitively answered by the 14th Amendment to the U.S. Constitution, which famously begins: 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.
Ratified in 1868, this clause was designed to overturn the infamous Dred Scott decision (Dred Scott v. Sandford, 1857), which had excluded African-Americans from U.S. citizenship. Subsequently, in United States v. Wong Kim Ark (1898), the Supreme Court affirmed the plain meaning of the amendment, clarifying that this guarantee of citizenship extends to all born in the U.S., including children born to non-citizens. (The "subject to the jurisdiction" clause effectively exempts children of foreign diplomats or of enemy forces during a hostile occupation.)
In response to the most recent challenge to this clear constitutional guarantee by an Executive Order issued by the Trump Administration in 2025, a 6-3 Supreme Court decision (Trump v. Barbara) has struck down that attempt to end birthright citizenship for children born to undocumented or temporarily present parents. The Court's majority ruled that children born in the U.S. to "unlawfully or temporarily present" parents are still within the nation's jurisdiction, again guaranteeing this precious constitutional right that defines our nation as it approaches its 250th anniversary this week.
In his Majority Opinion, Chief Justice Roberts explained that under early English law, children who were born in Britain automatically became British subjects. “This view crossed the Atlantic with the colonists—and was adopted with little fanfare after the Revolution,” Roberts wrote. After the Civil War, the 14th Amendment was adopted to repudiate the Supreme Court’s pre-war 1857 ruling that a Black person whose ancestors were brought to this country and sold as enslaved persons was not entitled to any protection from the federal courts because he or she was not a U.S. citizen. In so doing, the Chief Justice asserted, the framers of that amendment intended to “permanently enshrine” the existing understanding of birthright citizenship. “A child born on American soil and subject to American law was made an American citizen.”
“Citizenship, then and now,” Chief Justice Roberts wrote, “was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
Obviously, that is good news. The sad news, however, is that at least three of the Justices were willing to set aside the plain text of the 14th amendment. A fourth also agreed with the dissenters that the 14th amendment does not automatically confer universal birthright citizenship, but voted with the majority on the grounds that the President lacked authority to act as he did by an executive order, because that violated the Immigration and Nationality Act. That law currently grants citizenship to those born in the U.S. and "subject to the jurisdiction thereof." Therefore, the President cannot use an executive order to override that congressional statute.
Had the majority been looking for a narrower ground on which to rule, Chief Justice Roberts could have made that argument, striking down the President's order but avoiding answering the fundamental constitutional question. But that would have possibly opened the door to Congress to change the basis of citizenship by mere legislation, which would have been an insufferable outcome. Thankfully, the majority opted for the fundamental constitutional argument.
All of which highlights how tenuous, how fragile, even our most fundamental constitutional guarantees have become in the hands of this Supreme Court.
