The first sentence of the Fourteenth Amendment of the Constitution states: “[a]ll 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.”[i] Birthright citizenship has been a cornerstone of American identity ever since the Fourteenth Amendment was ratified in 1868. On January 20, 2025, President Trump signed an executive order effectively ending birthright citizenship for children born to undocumented immigrants in the United States.[ii] This begs the question, can President Trump end birthright citizenship without amending the Constitution?
The common law concept of jus soli, or “right of the soil,” in English common law dates back to 1608 in the case known as “Calvin’s Case,” where it was established that people born in Scotland after 1603 were English subjects and therefore entitled to English law.[iii] Meaning, they were effectively citizens under English law as they were subjects of the English king. This principle was codified in the Fourteenth Amendment, which granted individuals state and federal citizenship if they were born or naturalized in the United States. While the original aim of the Fourteenth Amendment was to grant citizenship to formerly enslaved individuals and their descendants, these rights and liberties have been expanded to encompass “discrete and insular minorities.”[iv]
Crucially, in 1898, the Supreme Court spoke on the issue in the seminal case of United States v. Wong Kim Ark, where the court held that any individuals born on U.S. soil are citizens, regardless of the immigration status of their parents, with few exceptions.[v] A key point in Wong Kim Ark was the fact that the Supreme Court had to rely on the common law since the Constitution does not parse out the meaning of the words of the Fourteenth Amendment.[vi] In this endeavor into the common law, the Court looked to the English common law practice of recognizing birth within an allegiance. This meant any individual born to parents who embraced the King’s allegiance was considered a natural-born citizen.
The phrase, “protectio trahit subjectionem, et subjectio protectionem” was particularly important in the English common law when attempting to decide the issue. The phrase translates to “protection draws allegiance, and allegiance draws protection,” which was critical when determining whether citizenship should be extended to children born to individuals who may have been from other lands or kingdoms in the past but have now maintained some sort of fealty to the land they are now in. The Supreme Court found the precedent to be clearly established and consistent in English common law that children born to individuals, regardless of their own origins, were natural-born citizens of England since both them and their parents “were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign.”[vii]
The Court also highlighted that “there is no authority, legislative, executive, or judicial, in England or America, which maintains or intimates that the statutes . . . conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion.”[viii] The Court recognized that, in the hundreds of years of English common law and the few hundred years of American common law at the time the opinion was written, birth-right citizenship being granted to individuals born within the confines of these nations or kingdoms had long been established. It was an uninfringeable right by the legislature, executive, or judiciary without Constitutional amendment.
Ultimately, the Court held that Wong Kim Ark was, in fact, a citizen of the United States due to the hundreds of years of English and American common law recognizing individuals born within the confines of a nation as natural-born citizens. The Court, however, did still recognize the exceptions to the citizenship clause of the Fourteenth Amendment. These exceptions include no natural-born citizenship to the children of ambassadors, no natural-born citizenship to the children of enemy occupants within the United States, and no natural-born citizenship to the children born on Native American reservations.
The main argument in President Trump’s executive order is that children born to individuals who are not lawful permanent residents of the United States are not “subject to the jurisdiction thereof,” which is what is required by the Fourteenth Amendment to be eligible for birth-right citizenship.[ix] This argument, however, is likely incorrect, both logically and as established by the common law. Furthermore, courts have long held that physical presence within U.S. borders necessitates compliance with federal and state laws, further proving jurisdiction.[x]
The logical argument against President Trump’s executive order is a textual argument on the words “subject to the jurisdiction thereof.” As Attorney General Lane Polozola of Washington stated, “[a]re they not subject to the decisions of the immigration courts? . . . [m]ust they not follow the law while they are here?”[xi] The textual argument to be made is that the mere fact that undocumented individuals can be arrested and deported, implies that they are in fact “subject to the jurisdiction thereof.” Not only are undocumented individuals subject to deportation and criminal liabilities, but they are also subject to civil liability, regardless of their immigration status. Note that the Federal Rules of Civil Procedure do not require that individuals be citizens or lawful permanent residents to be hauled into court.[xii] In other words, undocumented individuals can be criminally prosecuted, civilly liable, and can even pay taxes without any legal status, yet this order seeks to label these individuals as not “subject to the jurisdiction thereof.”
As for the common law argument, the executive order cites Dred Scott v. Sandford, in which the Supreme Court effectively held that individuals of African descent brought to the United States held as slaves nor their descendants (enslaved or freed) are not considered citizens of the United States.[xiii] This holding was remedied and overruled by the passage and ratification of the Fourteenth Amendment, which granted these same individuals, like Dred Scott, citizenship and equal protection of the laws. As mentioned above, Wong Kim Ark held that not only are individuals of African descent citizens of the United States if they were born here, but even Chinese Americans such as Wong Kim Ark himself are citizens so long as they are born in the United States.[xiv] This expansion of the natural-born citizen right has been long recognized by the Supreme Court for over 125 years and American society has progressed and evolved around this constitutional right.
The executive order will have a ripple effect throughout American culture if upheld. This ban would likely create a stateless class within the United States, leading to various issues. These individuals would be more vulnerable to exploitation in the form of human trafficking or indentured servitude. A lack of social cohesion would also likely arise since individuals will be less likely to seek out public systems, such as education. Additionally, this order can have serious economic ramifications for the United States. While most undocumented individuals do not pay income taxes, they still contribute to the overall economic health of our nation by working low-skilled, labor-intensive jobs. Furthermore, regardless of tax filing status, these individuals contribute economically by being general consumers who pay sales taxes that go directly to funding state and local needs.
In conclusion, President Trump’s executive order to end birthright citizenship for children born to undocumented immigrants conflicts with centuries of common law, constitutional text, and well-established Supreme Court precedent. As interpreted in United States v. Wong Kim Ark, the Fourteenth Amendment’s citizenship clause affirms that birth within U.S. borders confers citizenship, barring limited exceptions. By attempting to redefine “subject to the jurisdiction thereof,” the executive order undermines the principles of equality and inclusion central to American identity. If upheld, the order could create a vulnerable, stateless class, erode social cohesion, and disrupt economic stability—ultimately challenging the nation’s foundational values.
[i] U.S. Const. amend. XIV, § 1.
[ii] Protecting the Meaning and Value of American Citizenship, The White House (Jan. 20, 2025) https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/.
[iii] Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608).
[iv] United States v. Carolene Products Co., 304 U.S. 144, 152–53 n.4 (1938).
[v] See United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898).
[vi] See id. at 654.
[vii] See id. at 658.
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
[viii] Id. at 674.
[ix] Protecting the Meaning and Value of American Citizenship, supra note ii.
[x] See Plyler v. Doe, 457 U.S. 202, 215 (1982) (“Use of the phrase “within its jurisdiction” thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory.”)
[xi] Mike Catalini & Gene Johnson, A Federal Judge Temporarily Blocks Trump’s Executive Order Redefining Birthright Citizenship, AP News (Jan. 25, 2025, 3:50 PM), https://apnews.com/article/birthright-citizenship-donald-trump-lawsuit-immigration-9ac27b234c854a68a9b9f8c0d6cd8a1c.
[xii] See 28 U.S.C. § 1332 (2000) (using the language “citizens or subjects of a foreign state” – meaning that individuals do not need to be U.S. citizens or even citizens of other states to be civilly liable).
[xiii] See Dred Scott v. Sandford, 60 U.S. 393, 454 (1857).
[xiv] See Wong Kim Ark, 169 U.S. at 675–76 (stating the Fourteenth Amendment establishes citizenship to those born within the borders of our nation, regardless of race or ethnicity).
