Supreme Court to Review Birthright Citizenship
Table of Contents
The Supreme Court on Dec. 5, 2025, agreed to review the long-simmering controversy over birthright citizenship. It will likely hand down a ruling next summer.
In January 2025, President Donald Trump issued an executive order removing the recognition of citizenship for the U.S.-born children of both immigrants here illegally and visitors here only temporarily. The new rule is not retroactive. This change in long-standing U.S. policy sparked a wave of litigation culminating in Trump v. Washington, an appeal by Trump to remove the injunction put in place by federal courts.
When the justices weigh the arguments, they will focus on the meaning of the first sentence of the 14th Amendment, known as the citizenship clause: “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.”
Both sides agree that to be granted birthright citizenship under the Constitution, a child must be born inside U.S. borders and the parents must be “subject to the jurisdiction” of the United States. However, each side will give a very different interpretation of what the second requirement means. Who falls under “the jurisdiction” of the United States in this context?
As a close observer of the court, I anticipate a divided outcome grounded in strong arguments from each side.
Arguments for automatic citizenship
Simply put, the argument against the Trump administration is that the 14th Amendment’s expansion of citizenship after the eradication of slavery was meant to be broad rather than narrow, encompassing not only formerly enslaved Black people but all persons who arrived on U.S. soil under the protection of the Constitution.
The Civil war amendments – the 13th, 14th and 15th – established inherent equality as a constitutional value, which embraced all persons born in the nation without reference to race, ethnicity or origin.
One of the strongest arguments that automatic citizenship is the meaning of the Constitution is long-standing practice.
## The debate over birthright citizenship
The 14th Amendment to the U.S. Constitution has long been the subject of debate regarding birthright citizenship. While advocates maintain its broad message of equality guarantees citizenship to those born within U.S. borders, opponents argue for a more limited interpretation tied to consent and allegiance.
Arguments for birthright citizenship
Advocates of automatic birthright citizenship conclude that whether the 14th Amendment is interpreted in a living or in an original way, its small set of exceptions do not override its broad message of citizenship grounded in human equality.
Opposition to birthright citizenship
The opposing argument begins with a simple intuition: In a society defined by self-government, as America is, there is no such thing as citizenship without consent. In the same way that an American citizen cannot declare himself a French citizen and vote in French elections without consent from the French government, a foreign national cannot declare himself a U.S. citizen without consent.
This argument emphasizes that citizenship in a democracy means holding equal political power over our collective decisions. that is something only existing citizens hold the right to offer to otherssomething which must be decided through elections and the lawmaking process.
The court’s ruling in Elk v. Wilkins in 1884 – just 16 years after the ratification of the 14th Amendment – endorses “the principle that no one can become a citizen of a nation without its consent.” By making entry into the United States without approval a federal offenseCongress has effectively denied that consent.
Scholars who support this view argue that the 14th Amendment does not provide this consent. Rather it sets a limitation. To the authors of the 14th Amendment“subject to the jurisdiction thereof” conveyed a limit to natural citizenship grounded in mutual allegiance. That means if people are free to deny their old national allegiance, and an self-reliant nation is free to decide its own membership, the recognition of a new national identity must be mutual.
immigrants living in the United States illegally have not accepted the sovereignty of the nation’s laws. On the other side of the coin, the government has not officially accepted them as residents under its protection.
However, the Trump administration, and proponents of restricting birthright citizenship, argue that *Wong Kim Ark* was wrongly decided and based on a misinterpretation of both the 14th Amendment and historical legal precedents. They contend that the amendment’s framers did not intend to grant citizenship to individuals born to parents who are unlawfully present in the country.
### The argument for Citizenship by consent
Opponents of global birthright citizenship assert that the 14th Amendment does not supersede the fundamental principle of national sovereignty – the right of a nation to determine its own membership. They argue that the phrase “subject to the jurisdiction” refers to political allegiance and requires consent from the U.S. government for citizenship to be conferred.
This view emphasizes the importance of the Declaration of Independence, which replaced the concept of subjects owing allegiance to a king with that of citizens forming a sovereign nation. They believe the power to define citizenship was transferred from the monarchy to the American people and their elected representatives.
According to this interpretation, unauthorized entry into the U.S. is a criminal act, not an indication of consent to political membership. Therefore, individuals born to parents in the U.S. illegally are not automatically “subject to the jurisdiction” of the United States in the constitutional sense.They point to historical legal precedents, like Calvin’s Case, a 17th-century English common law case, but argue its relevance was severed by the American Revolution.
### Potential Outcomes and Court Dynamics
The Supreme Court’s decision will hinge on how the six conservative justices interpret the original meaning of the 14th Amendment. The three liberal justices – Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor – are expected to vote to uphold the existing understanding of birthright citizenship.
the outcome will likely depend on whether at least two of the conservative justices – Chief Justice John Roberts, Brett Kavanaugh, and Amy Coney Barrett – are persuaded to join the liberal bloc. A majority of five justices is needed to preserve the current interpretation of the 14th Amendment.
The Trump administration will succeed only if a majority of the conservative justices reject the precedent set by *Wong Kim Ark* and embrace the argument that citizenship requires consent. This would effectively end birthright citizenship as it is currently practiced in the United States.
The court’s decision will have far-reaching consequences for immigration policy, national identity, and the rights of millions of people born in the U.S. to parents who are not citizens. The ruling is anticipated to be a landmark decision with significant political and social ramifications.
Worth a look