The Supreme Court and Birthright Citizenship

The U.S. Supreme Court is currently reviewing a legal challenge concerning the denial of citizenship to children born to parents who are in the United States illegally or on a temporary basis. The case originates from an executive order signed by President Donald Trump on his first day in office, which sought to terminate birthright citizenship—a policy that grants citizenship to nearly everyone born on U.S. soil.

The Legal Foundation of Jus Soli

Birthright citizenship is rooted in the legal principle of jus soli, or “right of soil.” This concept was codified in the U.S. Constitution following the Civil War via the 14th Amendment to guarantee citizenship to former slaves. The amendment explicitly states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”

The Supreme Court previously affirmed this interpretation in the case of Wong Kim Ark. Born in the U.S. to Chinese parents, Wong sued after being denied reentry into the country. The Court ruled that the 14th Amendment grants citizenship to all born on U.S. soil, regardless of the legal status of their parents. Currently, the only exceptions to this rule apply to specific groups, such as children born to foreign diplomats.

Global Citizenship Standards

While fundamental to the U.S., birthright citizenship is relatively rare globally. Only about three dozen countries, primarily located in the Americas, offer unconditional citizenship based on territory. Most nations follow jus sanguinis, or “right of blood,” where citizenship is determined by the status of the parents rather than the place of birth.

International Examples

  • European Union: None of the 27 member states grant automatic, unconditional citizenship to children born to foreign citizens.
  • Australia: The country maintained birthright citizenship until 1986. Since then, a child must have at least one parent who is an Australian citizen or permanent resident to qualify.
  • Germany: Historically requiring at least one German parent, the law was liberalized in 2024. Children born to non-German parents now receive citizenship if one parent has held unlimited residency status for more than five years.

The German government noted that these changes were implemented because research indicated that children of immigrants integrate and perform better academically when granted citizenship earlier in life.

The Debate Over Jurisdiction

Proponents of restricting birthright citizenship in the U.S. focus on the phrase “subject to the jurisdiction thereof” found in the 14th Amendment. They argue that this specific language allows the government to deny citizenship to children born to women who are present in the country illegally.