Some legal scholars claim that the Citizenship Clause of the Fourteenth Amendment grants citizenship to all children born in the U.S., even if their parents are undocumented immigrants—though, notably, this doesn’t apply to those here legally, like tourists or diplomats. In a recent paper, Professor John Yoo argues that a more limited interpretation of this clause goes against the Constitution’s text, historical context, and a century’s worth of government practices and judicial rulings.
Proponents of birthright citizenship often overlook evidence suggesting that their interpretation might be flawed. The Citizenship Clause states that “all persons born or naturalized in the United States and subject to its jurisdiction” are citizens. Yet, Yoo and other scholars contend that anyone born on U.S. soil is a citizen, regardless of their parents’ immigration status. They often dismiss opposing views as mere modern reinventions by fringe scholars, but numerous academics are contributing to a growing body of research challenging that narrative.
Alongside prominent legal scholars like Professors Kurt Lasch, Ilan Wurman, Randy Barnett, and Samuel Oestreicher, our research critically evaluates the claims supporting birthright citizenship.
Supporters cite 18th-century jurist William Blackstone, but often neglect the insights of American jurist Joseph Story, who, in 1834, indicated that special considerations should exclude children of American-born aliens who were merely temporary residents. The Civil Rights Act of 1866 also tends to be left out of the discussion; it set forth the first parameters of birthright citizenship, asserting that citizens must be born in the U.S. and “not subject to any foreign power.”
Sen. Lyman Trumbull, a key figure in drafting the citizenship clause, argued that Congress intended this language to exclude U.S.-born children of parents with only limited allegiance to the nation—like those from foreign countries whose primary ties remained to their homeland.
Although the Fourteenth Amendment uses slightly different wording, historical records indicate that this phrasing was not meant to contrast with the Civil Rights Act. Instead, it aimed to clarify the status of Native Americans, who were not considered U.S. citizens despite being born in America until the Indian Citizenship Act of 1924. The Supreme Court had determined that these individuals owed their primary allegiance to tribal governments. Sen. Reverdy Johnson, another architect of the Fourteenth Amendment, articulated that the phrase “subject to its jurisdiction” had the same civil rights implications as the Civil Rights Act, basically saying that anyone born in the U.S. not subject to foreign governance would be a citizen.
Moreover, in 1870, Congress reenacted the Civil Rights Act in the same text, maintaining a consistent interpretation across 70 years. Yoo’s historical references don’t acknowledge this continuity.
Even influential legal commentators from the post-ratification period interpreted the citizenship clause differently from what is suggested today. For example, jurist Thomas Cooley argued that “subject to jurisdiction” meant complete allegiance to the U.S., not partial ties to foreign governments. This interpretation might deserve more critical engagement rather than silence.
Interestingly, Yoo asserts that his stance aligns with “more than 140 years” of government practice. Yet, historical instances exist where citizenship claims for U.S.-born children were rejected based on their parents’ immigration status. Cases like Richard Gleisser’s in 1885, where the Secretary of State concluded that he was born under foreign control, and Mary Devereaux’s case in 1890, support this idea. In the latter, the Department of Justice deemed her American-born daughter a non-citizen due to her mother not being allowed entry into the U.S.
Additionally, the Supreme Court’s ruling in a famous 1873 slaughterhouse case indicated that the qualifier for citizenship was to exclude children of foreign officials and nationals born in the States. While some may argue that a majority of justices could support a modern interpretation favoring birthright citizenship, this would entail disregarding historical evidence that clearly indicates children of undocumented immigrants are not granted citizenship.
