Birthright Citizenship is Much More Complex than the Media Wants You to Believe

The second Trump Administration must soon decide how to deal with the controversy over “birthright citizenship.” Indeed, determining citizenship is an essential role of any nation. The United States’s pronounced slumber on the issue is speeding toward an uncertain end.

The Nature of Birthright Citizenship

The Supreme Court’s decision to limit its ruling in the case of Trump v. Casa (2025) to universal injunctions is understandable, but perhaps also unfortunate. That distinction only delays the need to determine the nature and limits of birthright citizenship. Such a definition is increasingly necessary, and only the Supreme Court appears able to provide it. Refusing to do so only perpetuates the chaos that reigns over immigration law.

The concept of birthright citizenship is ancient. From time immemorial, children have been assumed to acquire the citizenship of their parents at birth. However, there were always exceptions, and these varied from place to place. Most exceptions involved conditions in which the two parents came from different countries, which often occurred in border areas.

Another vital idea largely absent from the public debate is the fact that all nations have the inherent ability to determine whether foreigners enter and stay in their territories. In such matters, no country is bound by decisions made by other countries or any authority like the United Nations or an International Court. Even Holy Mother Church has long accepted that such decisions are “prudential judgements” in the hands of each sovereign nation’s government.

The Fourteenth Amendment

From the very beginning, the United States, a land largely populated by immigrants, struggled with such issues. However, the first truly national policy came in 1868, three years after America’s Civil War ended. That year, Congress and the States ratified the Fourteenth Amendment to the Constitution.

The background of the Amendment is easily understood. The Civil War resulted in the formerly enslaved people gaining freedom, but they faced an uncertain citizenship status. The Supreme Court’s disastrous Dred Scott v. Sanford (1857) decision, which held that those of African heritage could never be citizens, regardless of other conditions, remained in effect. Finding a solution was essential.

In that light, the Amendment begins with a simple-sounding statement: “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.” Its original purpose had nothing to do with immigration, a crucial fact often ignored.

The Wong Kim Ark Case

The Supreme Court’s first attempt to apply that language to immigrants came in the case of United States v. Wong Kim Ark (1898). Wong Kim Ark was born in San Francisco to Chinese immigrant parents in 1870 or 1873 (sources disagree). As an adult, he went to China to visit relatives. When he returned, he was not allowed to re-enter the country under the terms of the 1882 Chinese Exclusion Act. He sued, basing his claim on the assumption that he was a native-born citizen of the United States. The Supreme Court agreed.

For 127 years, this case was interpreted to mean that any children born in the United States, regardless of their parents’ status (except for children born to officials of foreign governments temporarily stationed in the US), were automatically citizens.

That interpretation was far from perfect, but the exceptions were relatively few, and the courts seem to have taken the attitude that they “should leave well enough alone.”

New Pressures Break an Old Consensus

Unfortunately, any chance that such a loose application would be workable vanished as the Biden Administration allowed an estimated 7.3 million illegal immigrants—a number exceeding the populations of thirty-eight states—to cross into the United States. Even the leftist “fact checkers” at Snopes confirmed that number. Other credible estimates exceed ten million. The number of children born to these migrants is uncertain, but massive, placing incredible pressures on local schools, governments and healthcare systems. These officials need answers about the status of these people, and they need those answers now.

Some legal scholars and the Trump Administration promote arguments that center around the logical position that an illegal act cannot convey legal rights. Proponents of this viewpoint point out that Wong Kim Ark’s parents arrived and lived in the United States legally. On the other hand, illegal immigrants have no legal status themselves, and cannot, therefore, claim it for their children.

The best solution would be for the one organization with the undoubted power to regulate immigration—the United States Congress—to sort out this legal conundrum. Given the partisanship that rules under the Capitol’s dome, such an outcome is unlikely. Legislators see only the shark-infested waters that could prevent re-election.

That leaves the Supreme Court as the only body able to resolve the birthright citizenship conflict. Absent a miracle, the current chaos will continue until they do.

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