There isn’t a lot of room for interpretative ambiguity there. For well over a century and a half, the “birth” part of this was universally understood to mean exactly what it sounded like. Almost everyone born in the United States is a citizen, regardless of the citizenship status of their parents. The only exception pertains to rare cases, such as the children of foreign diplomats, who are immune from US laws.

Nevertheless, on the first day of his second term, Donald Trump signed an executive order absurdly attempting to reinterpret the Constitution’s guarantee of birthright citizenship out of existence. The aim was to deny citizenship to certain Americans purely because of immigration violations committed by their parents. At the time, pretty much everyone expected that the courts would immediately overturn this daylight raid against the meaning of the Fourteenth Amendment. But in the end, it didn’t quite work out that way.

Twenty-two states challenged the order, and judges in several of those states issued nationwide injunctions to block it. But last week, the Supreme Court ruled in favor of the Trump administration. They declined — for now — to rule on the core constitutional issue. Instead, they ruled on narrow technical grounds, invalidating the longstanding practice of federal judges issuing injunctions that apply to the whole country rather than only ones limited to their districts.

The Court allowed 30 days for further challenges to proceed, but after that, if nothing changes, Trump’s executive order could go into effect in the 28 states that haven’t challenged the order. That means that some babies born in the US will become entirely stateless. While some countries will grant citizenship to children of citizens born abroad, plenty will not.

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Can America control its oligarchs?

By Ben Burgis

Those who seek to minimize the enormity of the Trump administration’s assault on liberal democratic principles often point out that birthright citizenship is rare globally. That’s true enough. It’s far from unique to the United States — about 30 nations have it, including the rest of North America and nearly all of South America. But it’s not the global norm. Then again, neither is the unusually robust protection of free speech and political dissent under the First Amendment.

Just as there are countries without birthright citizenship which nonetheless wouldn’t be classed as extreme ethnostates, there are plenty of nations that have laws against hate speech and blasphemy that haven’t devolved into 1984-style totalitarianism. Still, it would be a serious mistake in either case to assume that nothing important is at stake here. Whether the US continues to honor these protections matters profoundly.

The birthright citizenship clause was born in the aftermath of the Civil War. Just nine years before Congress passed the amendment, the Supreme Court had ruled in the Dred Scott decision that slaves weren’t US citizens, and didn’t become citizens when they escaped to free states. And as morally repulsive as that ruling was, it’s hard to argue that it didn’t conform to the intentions of the Constitution’s authors, who infamously counted each slave as three-fifths of a person when apportioning Congressional districts.

By the war’s end, every freed slave had been born to parents who weren’t citizens. Nevertheless, they themselves all were when the Fourteenth Amendment went into effect in 1868. The principle was very simple and clear: everyone born on American soil and subject to its laws would be an American citizen, full stop.

This was a crucial factor in shaping a unique sense of national identity in America, distinct from the kinds found elsewhere. Most nationalisms fall somewhere between two extremes: pure ethnonationalism, where the nation is an ancestral unit understood in blood-and-soil terms, and pure civic nationalism, where the nation is just all the people in the territory, regardless of race, religion, or ethnicity. Nearly every case is going to contain some elements of both types. But one of the best things about the United States is that American nationalism comes about as close to a pure form of civic nationalism as exists anywhere on the planet.

No one talks about being “a quarter American”, for example. It would sound like a category mistake. That’s why when my family fled from antisemitism in what’s now Ukraine, or when the other side of my family escaped what’s now Croatia as it was plunged into the First World War, these relatives, within a short time, raised children who felt American and who were regarded as such.

I’m a man of the Left, and in the great majority of contexts I’d consider Ronald Reagan to be one of my very least favorite presidents, but he put this point very well in his last speech in office. He said that you can “go to live in France, but you cannot become a Frenchman” and that this is true of many other nations, but that “anyone, from any corner of the Earth, can come to live in America and become an American”. France may have moved closer to pure civic nationalism over the decades, but the underlying point remains. This is one of the most precious aspects of American democracy.

To point this out isn’t to minimize the long and awful history of slavery, Jim Crow, and the mistreatment of the native population. The after-effects survive today in the economic disparities between different demographic groups. But we should be able to recognize this painful history while also celebrating that, as of 2025, we’ve separated American identity from any sort of racial or ethnic or religious or ancestral identity to a far greater extent than most other nations.

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America is lost without idealism

By Robert D. Kaplan

This achievement partly reflects the unique contingencies of American history. Consider France, where national identity has persisted through a number of changes of political and constitutional systems. The French are currently on their fifth republic, and that succession of republics was interrupted at various points by two empires, a monarchist restoration, and the fascism of the Vichy regime. By contrast, America is still in its first republic, meaning that it’s been far easier for us to form a sense of national identity around our allegiance to our founding liberal and democratic principles.

Besides many white Americans have long been able to trace their ancestral roots to many different parts of the world — so many that it would be impossible for there to be a strong association between American identity and, say, ancestral roots in the British motherland (or any other particular county). America exists on its own. And the world-historic victories of the Civil Rights Movement in the Fifties and Sixties undermined any lingering connection between Americanness and even a generic white identity.

In the early 20th century, everyone from Woodrow Wilson to Vladimir Lenin proclaimed a belief in the right of “nations” to self-determination. But what sort of beast is a nation? If the entity seeking self-determination is a particular ethnic, religious or cultural group, such that having achieved it, the resulting state is “for” that group, then a serious problem lingers about the status of demographic minority populations. No matter how well-treated members of those populations may be, there’s always a sense in which they are going to feel (and be treated) more like guests than full, organic members of the nation.

The extent to which the United States isn’t like that is a civilizational achievement. And if the courts really do let the Trump administration get away with redefining Americanness so that you can only be born an American if you have a genetic connection to other citizens, that would be a long step back into the dark.

The vice president’s remarks came in response to the growing list of lower-court judges who have attempted to halt the new administration’s agenda with a slew of injunctions. They have directed Team Trump to release federal grants to nonprofits that the administration has frozen for auditing, for example, and blocked the administration from applying its interpretation of the 14^th Amendment, according to which children born to illegal immigrants aren’t automatically entitled to US citizenship.

Vance hit back at the judges for trying to restrict the president in his own sphere and overriding his decisions as to how best to carry out the law (the execute in the “executive branch”). As the Harvard law professor Adrian Vermeule put it in an X post, reshared by Vance, “judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.”

But the judges’ actions raise another vexing constitutional question: can a lower court with narrow local jurisdiction render so-called nationwide injunctions that purport to bind every American citizen? By refusing to comply, the Trump administration is effectively answering: no. In doing so, according to The New York Times, the Trumpians have triggered an unprecedented “constitutional crisis.” In recent years, as legal progressives have sought to limit presidential power when it’s held by the other side, it’s become a sort of truism that a lower court in Hawaii or, say, New Hampshire can put a stop to a federal policy covering the whole nation.

In fact, the argument isn’t obvious at all, and there is good reason to believe that America’s Founding Fathers would have been baffled by such gross assertions of judicial hegemony.

Start with the constitutional text. The first clause of Article III of the Constitution reads: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Read that carefully once more. This so-called vesting clause has at least two notable elements.

First, the only court that shall be established is the US Supreme Court. All other lower courts exist solely at the discretion of Congress, as they have since the Judiciary Act of 1789 — one of the first statutes the First Congress passed. But something created by statute can be taken away by statute. The Federalist’s Sean Davis might have appeared to be trolling when he noted on X that “Congress would be well within its right to just eliminate” any lower courts. In fact, Davis was restating a basic fact about America’s constitutional structure. That precarious state of the lower courts should already tell us something about their authority to neuter executive-branch policy for the whole country.

Second, and more relevant, is what the “judicial Power” means as it is used in Article III of the Constitution. As the University of Chicago Law School professor Will Baude argued in a highly influential 2008 law-review article, “the judicial power is the power to issue binding judgments and to settle legal disputes within the court’s jurisdiction.”

The deepest question raised by this is the following: what is a federal court’s legitimate jurisdiction when it comes to issuing injunctions — a form of “equitable remedy” in legalese, meaning the court tells one party to perform some act (rather than award damages). In this case, for example, it’s courts ordering the executive branch that it has to automatically grant US citizenship to children born to unlawful migrants.

The answer is simple: when it comes to this kind of remedy, only the named parties to a particular lawsuit are bound by the judgment. So to follow our example: a lower court can only order the federal government to treat as an automatic citizen a specific infant born on US soil to an illegal mother from Honduras. Call him Baby Doe. But a lower court lacks the authority to force the executive branch to grant automatic citizenship to Baby Doe and all other similarly situated children nationwide.

As then-Stanford law professor Jonathan Mitchell argued in a 2018 law-review article, an “injunction is nothing more than a judicially imposed non-enforcement policy” that “forbids the named defendants to enforce the statute” — or executive order — “while the court’s order remains in place.” There is no broader “writ of erasure” that permits a lower court to simply “strike down” a statute or an executive order.

Nationwide injunctions applying to all people across a vast continental nation have no basis in the Anglo-American legal tradition. Rather, the proper scope of a federal court’s power to issue such remedies is restricted to “the defendant’s conduct only with respect to the plaintiff”, as Samuel L. Bray, the Notre Dame legal scholar, argued in a 2017 law-review article

Skeptics of nationwide injunctions aren’t limited to the legal academy. They include Justice Clarence Thomas of the Supreme Court. As Thomas explained in his 2018 concurring opinion in the landmark Trump v. Hawaii case, historically, “American courts of equity did not provide relief beyond the parties to the case”, because “for most of our history, courts understood judicial power as fundamentally the power to render judgments in individual cases”. Presciently, Thomas concluded his opinion by warning: “If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so”.

That day has not yet come, but it might soon enough, as the clash between the second Trump administration and legal progressives reaches a crescendo.

Meanwhile, talk of the administration ushering tyranny by defying nationwide injunctions is overblown, to put it generously. Throughout US history, presidents have contested the scope and the binding nature of the “judicial Power”. As the Yale scholar professor Keith Whittington laid out in his 2009 book, Political Foundations of Judicial Supremacy, the debate over who exactly has the last word when it comes to interpreting and enforcing the Constitution goes back to the beginnings of the republic.

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The US Constitution is anti-democratic

By Matt McManus

Thomas Jefferson, in a 1804 letter to Abigail Adams, asserted that to give “to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch”.

Jefferson’s ideological arch-rival, Alexander Hamilton, agreed with him on this count. It was Hamilton, after all, who famously referred argued in The Federalist No. 78 that the judiciary is the “least dangerous” branch because it has “neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”.

President Andrew Jackson took that Hamiltonian sentiment to its logical conclusion when, in 1832, he responded defiantly to Chief Justice John Marshall’s ruling in an Indian-removal case: “The decision of the Supreme Court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.” (Jackson is widely quoted as saying, “John Marshall has made his decision; now let him enforce it”, but his actual precise quip was similar enough.)

Yet no figure in the American tradition embodied the rejection of judicial supremacy quite like Abraham Lincoln. His 1858 Senate debates with Stephen Douglas focused, more than anything else, on the scope of the Supreme Court’s decision in Dred Scott v. Sandford, in which the high court held that black people weren’t citizens under the federal Constitution. Lincoln argued that the decision should be respected when it came to the named litigants to the suit, the slave Dred Scott and his “owners”, but that it shouldn’t be extended a millimeter further.

Three years later, in his First Inaugural Address as president, Lincoln warned that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers”.

JD Vance, in short, is in good company, with Jefferson, Hamilton, and Lincoln on his side. There is no such thing as a legitimate “nationwide injunction”. And the notion that the judiciary is the sole legitimate final arbiter of constitutional questions, including those having to do with the separation of powers, is also belied by US history. Perhaps the Trump administration will follow through on Vance’s sentiment — the birthright citizenship litigation seems as good an example as any. Or perhaps the lower-court #Resistance will first stand down or get put in its place by the Supreme Court.

But there is a strong constitutional and moral case for limiting birthright citizenship. It’s the argument that led the Trump administration to issue an executive order that defines a new status quo: going forward, children of illegal aliens won’t receive recognition of their citizenship by the US Department of State or any other executive agency.

Start with the Constitution. The question of birthright citizenship goes back to the 14th Amendment, one of the three ratified in the immediate wake of the Civil War. The relevant portion reads: “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 phrase at issue is “and subject to the jurisdiction thereof” (known as the jurisdiction clause). Proponents of birthright maintain that the phrase merely means subject to the laws and courts of the United States.

Yet the debates over the 1866 Civil Rights Act, the legislation that led to the 14th Amendment, as well as the principles of the American founding, suggest a different interpretation.

The 1866 act was meant to secure the full benefits of citizenship for recently freed slaves and their descendants — and all black citizens, for that matter. The law’s proponents were determined to convert it from legislation to constitutional text, thus insulating its protections from change by a future Congress. Hence, the 14th Amendment. This means that the legislative history of the 1866 act can help illuminate what the 14th Amendment was supposed to be all about.

The 1866 legislation’s citizenship clause read: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” A few months later, when the 14th Amendment was debated, the floor manager, Sen. Jacob Howard, described it as “simply declaratory of what I regard as the law of the land already”, namely, that “every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

By the “law of the land already”, Howard meant the recently passed 1866 Civil Rights Act. The then-chairman of the Senate Judiciary Committee, Lyman Trumbull, addressing an objection over the absence of the Civil Rights Act’s phrase “Indians not taxed” from the 14th Amendment, stated that it was obvious that Indians were not “subject to the jurisdiction” of the United States “in the sense of owing allegiance solely to the United States”.

In such language from some of the 14th Amendment’s chief proponents, we can discern the outlines of an argument that the jurisdiction clause meant more than merely being subject to the law and courts on US soil. It had to do with a fundamental tenet of citizenship: loyalty or allegiance.

So how did we end up with the children of even illegal aliens receiving automatic citizenship? The US Supreme Court first addressed the meaning of the citizenship clause of the 14th Amendment in an 1898 case. It concerned the fate of Wong Kim Ark, a child of Chinese nationals who were permanent US residents. In a 6-2 decision drafted by Justice Horace Gray, the high court held that the common law was the proper interpretive guide to the US Constitution’s text. Since the common law mandated birthright citizenship — jus soli as opposed jus sanguine, “right of soil” instead of “right of blood” — the child was a citizen under the 14th Amendment.

To this day, the case remains the controlling precedent for the maximalist position on birthright citizenship, cited by sympathetic judges and law professors on both sides of the aisle. Yet the dissenting opinion, written by Chief Justice Melville Fuller, offers an interpretation of the 14th Amendment’s citizenship clause that is more consonant with American principles of just government than Justice Gray’s opinion.

Fuller argued that the common law couldn’t be the controlling authority, because in separating from the British Crown in 1776, the American colonists had elevated the principles of the Declaration of Independence over the common law. The common law of England contemplated subjects owing perpetual allegiance, rather than citizens of a government based on consent.

Fuller was right. The common law didn’t come up at all during the debate over the 14th Amendment. There were no references to Sir Edward Coke or to Blackstone, the eminent English authorities on common law, and the lawmakers were much more comfortable speaking of the interaction between the principles of America and her institutions than they were citing English precedents on jus soli.

They believed that the principles of the Declaration would control — and, where necessary, overrule — the common law of England. If human equality is a fact of nature, then nobody may rule another without their consent. All ought to enjoy their liberties and the pursuit of happiness alike. The existence of slavery, the ensuing crisis brought on by the conflicts between these principles and American practice, and the subsequent Civil War are the historical context for the 13th, 14th, and 15th Amendments. American citizenship, defined constitutionally for the first time in the 1860s, was never based in blood. But crucially, it was never based in soil, either.

American citizenship was based on consent. Wong Kim Ark, then, should be overturned, and we should have a robust national debate about citizenship, immigration, and national allegiance. Congress is well within its enforcement powers under section 5 of the 14th Amendment to restrict birthright citizenship much more than it does currently.

Let’s start with two issues on which we might reach a broad national consensus: illegal immigration and birth tourism. It seems to go against common sense to allow a million or two immigrants to cross our southern border illegally and then to confer citizenship upon the children they may have here.

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The progressive case against immigration

By Lee Fang

Children of foreign soldiers born on US soil have always been excluded from birthright citizenship, in the same way as the children of ambassadors and diplomats. It’s controversial to call the flood of economic migrants of recent years a slow-moving invasion — but what of the subset of that group that constitute criminals, foreign spies, and terrorists? Does it redound to American national interest or civic health to confer citizenship on any children they may produce on US soil?

Is it prudent, let alone just, to allow wealthy foreigners from China or Russia to purchase birth-tourism packages costing as much as $100,000 and including a final-trimester hospital stay in Florida or California as well as a fresh US passport for the new babies? Should we be in the business of exporting tens of thousands of newly minted Americans every year, with all the attendant privileges and benefits, to the homelands of our foreign adversaries?

To be sure, the meaning of the 14th Amendment’s citizenship clause is contested. The prospects for overturning Wong Kim Ark any time soon are remote. But even under the Wong Kim Ark precedent, controlling emphasis was placed on the importance of Ark’s parents being “permanently domiciled” in the United States. Let’s update and apply that precedent to a world transformed by transportation technology in the ensuing 127 years. If you are not a lawful permanent resident, any children you may have in the United States are permanent residents with you, not automatic citizens.

The next step after Trump’s executive order will be to get the American people more involved, which means Congress should debate, openly and with great fanfare, the meaning of the 14th Amendment on the relationship between birth, citizenship, and government by consent. None of these issues is as settled or obvious as defenders of birthright citizenship insist.