Does the Supreme Court ruling on birthright citizenship make sense?

The views expressed by contributors are their own and not the view of The Hill

Nearly one in 11 babies born in the U.S. in 2023 had mothers who were either here in violation of our laws or had only temporary legal status. But all of their babies were U.S. citizens, because they were born on U.S. soil. This is known as birthright citizenship, or “jus soli” (Latin for “right of the soil”).

Birthright citizenship is uncommon. Only 33 of the world’s 191 countries have it.

On Jan. 20, 2025, President Trump tried to end it in the U.S. with an executive order. He declared that the 14th Amendment’s birthright citizenship provision does not apply to babies whose mothers are unlawfully present in the U.S. or have only temporary lawful status, and the father is not a U.S. citizen or lawful permanent resident.

The 14th Amendment provides that “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.” And this week, the Supreme Court held in Trump v. Barbara that the 14th Amendment grants citizenship to nearly everyone born on American soil, including the children of parents who are here unlawfully or with temporary legal status.

But the truth is, the U.S. had birthright citizenship long before the passage of the 14th Amendment.

Before the American Revolution, American colonists were subjects of England’s king. English common law provided that the king owed people “born within the dominions” a duty of “protection.” And “in return for that protection,” those “born within the dominions” owe the King “allegiance.”

This applied even to the children of parents who were subject to expulsion. For instance, gypsies (now called Romani) born in the United Kingdom were citizens, even though British law at the time directed them “to avoid the realm” under “pain of imprisonment” or even death.

This English common law view of birthright citizenship crossed the Atlantic with the colonists. They adopted it without fanfare after the revolution, as subjects of the sovereign became citizens of the states.

This view of birthright citizenship was not changed until 1857, when the Supreme Court issued its decision in Dred Scott v. Sandford. Chief Justice Roger Taney, writing for the court, held that slaves were not citizens and therefore not entitled to any protection from the federal government or the courts.

The Civil Rights Act of 1866 brought back the common law rule on birthright citizenship. It declared that “all persons born in the U.S. and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude … shall have the same right, in every State and Territory in the United States … as is enjoyed by white citizens.”

Opponents of the act argued that Congress did not have the authority to grant such expansive citizenship by statute alone. To dispose of this objection, Congress passed the 14th Amendment. It was ratified by the states in 1868.

Today, the Supreme Court concluded that the constitutional text, historical evidence, reconstruction debates and legal precedent all support the constitutionality of birthright citizenship. If Congress intended to limit American citizenship to the children of parents with the status required by Trump’s executive order, it postulated, it would have included language indicating such an intention. In addition, certain words appearing frequently in Trump’s executive order — “mother,” “father,'” “lawful,” “temporary” — do not appear in the 14th Amendment “for a simple reason: they did not matter.”

What the court did not decide was whether birthright citizenship is good policy.

John Skrentny, a sociology professor at the University of California-San Diego, claims that birthright citizenship was established in North and South America in the colonial days, and that each nation-state had its own unique road to establishing it. But almost all of them were “building a nation-state from a former colony,” Skrentny wrote. “It was a particular strategy for a particular time, and that time may have passed.”

Even England replaced its common law birthright citizenship with parentage-based citizenship 45 years ago, when it passed the British Nationality Act of 1981. The parliament that passed that act believed that “citizenship should reflect a genuine connection to the United Kingdom rather than the fortuity of birthplace.” It provided that a person born in the United Kingdom will be a British citizen if his father or mother is a British citizen or is settled in the United Kingdom.

Maybe the U.S. also should revisit the justification for birthright citizenship. The 14th Amendment was passed and ratified more than 150 years ago in the aftermath of slavery and Dred Scott. The court just ruled that it is the law of the land. It did not rule on whether it still makes sense?

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.

Does the Supreme Court ruling on birthright citizenship make sense?

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