How the 14th Amendment's Promise of Citizenship to Freed Slaves Became Today's Immigration Battleground

Trump's Executive Order Targets Constitutional Principle Rooted in Post-Civil War Justice

WASHINGTON — When President Donald Trump signed an executive order on his first day back in office targeting birthright citizenship, he challenged a constitutional principle that has defined American identity for more than 150 years. The order, currently blocked by federal courts, aims to deny citizenship to children born in the United States to undocumented immigrants or those on temporary visas — a dramatic departure from the 14th Amendment's original promise to ensure that freed slaves and their descendants could never again be denied American citizenship.

The constitutional clash represents a fundamental question about who belongs in America, with roots that stretch back to the aftermath of the Civil War and one Chinese immigrant's fight for recognition as an American citizen.

The 14th Amendment's Revolutionary Purpose and Its Framers' Intent

Ratified on July 9, 1868, the 14th Amendment emerged from the ashes of the Civil War with a clear and revolutionary purpose: to overturn the Supreme Court's notorious 1857 Dred Scott decision, which declared that African Americans "had no rights which the white man was bound to respect" and could never be American citizens.

The amendment's primary architect, Congressman John A. Bingham of Ohio, the primary author of the first section of the 14th Amendment, intended that the amendment also nationalize the Bill of Rights by making it binding upon the states. Bingham explained that his amendment was "simply a proposition to arm the Congress of the United States... with the power to enforce the bill of rights as it stands in the Constitution today."

When introducing the amendment, Senator Jacob Howard of Michigan specifically stated that the privileges and immunities clause would extend to the states "the personal rights guaranteed and secured by the first eight amendments." Critically, Howard clarified the scope of the citizenship clause, explaining that it would not include "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers" but "will include every other class of persons."

The language of the Civil Rights Act of 1866, passed by the same Congress, provided the foundation for the 14th Amendment's citizenship clause. As Representative John Bingham explained, the amendment constitutionalized the act's declaration that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens."

The historical record shows that Congress explicitly rejected attempts to limit the amendment's scope. Congress' debate over the Citizenship Clause shows explicit rejection of Senator Edgar Cowan's anti-Romani sentiment, affirming that birthright citizenship cannot be revoked from children born to disfavored ethnic minorities. The clause constitutionalized the Civil Rights Act of 1866's grant of citizenship to all born within the United States, except the children of foreign diplomats.

How a Chinese Cook Cemented Birthright Citizenship

The 14th Amendment's meaning was tested in 1898 when Wong Kim Ark, a young man born in San Francisco to Chinese immigrant parents, was denied re-entry to the United States after visiting family in China. Under the Chinese Exclusion Act, Chinese immigrants were barred from naturalization, making Wong's case a crucial test of whether birthright citizenship extended to children of those permanently excluded from becoming citizens.

In a 6–2 decision issued on March 28, 1898, the Supreme Court held that Wong Kim Ark had acquired U.S. citizenship at birth and established that "a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China" automatically became a U.S. citizen.

The Court's ruling was grounded in English common law principles dating back centuries, but it firmly established that the 14th Amendment's jurisdiction requirement applied to virtually everyone born on American soil, regardless of their parents' immigration status or ability to become citizens themselves.

The Unique Case of Native Americans: The Exception That Proved the Rule

The exclusion of Native Americans from the 14th Amendment's automatic birthright citizenship provides crucial insight into the framers' understanding of the "subject to the jurisdiction thereof" clause. Native Americans were explicitly excluded not because they were born to non-citizens, but because they maintained their own sovereign tribal governments and legal systems.

At the time of the adoption of the US Constitution under Article One, Native Americans, who were classified as "Indians not taxed", were not considered to be eligible for US citizenship because they were governed by distinct tribes, which functioned in a political capacity. The case of Cherokee Nation v. Georgia (1831) established that tribal members "who maintained their tribal ties and resided on tribal land would technically be considered foreigners" living in the United States as wards of the federal government.

This exclusion was specifically addressed through separate legislation. On June 2, 1924, President Calvin Coolidge signed the Indian Citizenship Act into law, declaring that "all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided that the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property."

The 1924 act read that all Native Americans born in the United States were automatically citizens by birth. Native Americans were the last main group to gain this right set forth in the Fourteenth Amendment. Crucially, under the 1924 Act, Indigenous people did not have to apply for citizenship, nor did they have to give up their tribal citizenship to become US citizens, establishing a precedent for dual citizenship.

The passage of this separate citizenship act for Native Americans demonstrates that the 14th Amendment's jurisdictional requirement was understood to exclude only those who maintained allegiance to separate sovereign governments — not merely those whose parents lacked legal status in the United States.

Even after gaining citizenship, however, while the Indian Citizenship Act of 1924 ensured that all Native Americans born within the United States had citizenship, the Act failed to fulfill the promise of citizenship because Native Americans were not also granted voting rights. It would be decades before all 50 states granted Native American citizens the right to vote, with full voting rights not secured until the Civil Rights Act of 1965.

The Economic and Social Impact of Birthright Citizenship

The economic and social implications of birthright citizenship extend far beyond individual families to shape America's demographic and economic future. Research consistently shows that birthright citizenship serves as a powerful engine of integration and economic mobility.

Economic Benefits: A 2015 report by the National Academy of Sciences found that "[b]irthright citizenship is one of the most powerful mechanisms of formal political and civic inclusion in the United States; without it, the citizenship status of 37.1 million second-generation Americans living in the country (about 12% of the country's population), and perhaps many millions more in the third and higher generations, would be up for debate."

Research shows that children of immigrants are generally very successful in the U.S., surpassing their parents and matching or exceeding their peers with citizen parents in key markers of integration like education, earnings, and home ownership. At a time of unprecedented population aging and with immigrants and their U.S.-born children already driving all labor force growth, birthright citizenship ensures this population can work legally and contribute to economic growth.

The Cost of Repeal: Analysis by the Migration Policy Institute reveals that eliminating birthright citizenship would have consequences opposite to its stated goals. Working with researchers at Pennsylvania State University, the Migration Policy Institute (MPI) has found that ending birthright citizenship for U.S. babies with two unauthorized immigrant parents would increase the existing unauthorized population by 4.7 million people by 2050.

Under a scenario denying U.S. citizenship to babies with one parent who is unauthorized, the analysis finds that the unauthorized population would balloon to 24 million in 2050 from the 11 million today. By 2075, there would be 1.7 million U.S. born lacking citizenship or legal status who were the children of two parents who themselves had been born in the United States.

Current Demographics: In 2014, an estimated 275,000 children were born to undocumented immigrants–7 percent of all births that year–down from 330,000 births in 2009. About 23 percent of children born in the U.S. in 2016 — more than 910,000 children — had mothers who were born in another country, with Mexico accounting for about a third of all children born in the U.S. to foreign-born mothers.

Administrative Costs: Repeal of automatic birthright citizenship would mean abandoning a simple, "bright line" rule for determining citizenship and exchanging it for one that is far harder to implement and that would impose paperwork burdens on citizens, hospitals, and government agencies alike. The inability of this population to work legally would generate a growing group of workers relegated to low-wage jobs, stunting the country's economic growth.

Upon taking office in 2025, Trump issued an executive order asserting that the federal government would not recognize jus soli birthright citizenship for the children of non-citizens. The executive order is currently being challenged in court.

The administration argues that children of undocumented immigrants and temporary visa holders are not "subject to the jurisdiction" of the United States. However, this interpretation has been widely rejected by legal scholars across the political spectrum.

Neuman argues the interpretation is "either a crazy theory or dishonest interpretation of the Constitution. The Supreme Court explained what those words mean in the Wong Kim Ark case. It reflects the fact that there are these traditional exceptions that really do involve people who are not subject to the nation's jurisdiction. The leading example in the 1860s debates was foreign diplomats, who have diplomatic immunity, who are for the most part not subject to our laws."

The Modern Political Battle and Current Supreme Court Status

The term "anchor baby" — not used in constitutional debates but popularized by immigration restrictionists — reflects a fundamental misunderstanding of the 14th Amendment's purpose, according to legal scholars. Gerald Neuman, an expert in immigration and nationality law, says that both history and Supreme Court precedent confirm an intent to grant citizenship to anyone born in the U.S. — regardless of their parents' legal status. Moreover, he adds, "The president of the United States has no authority to change citizenship rules at all."

Upon taking office in 2025, Trump issued an executive order asserting that the federal government would not recognize jus soli birthright citizenship for the children of non-citizens. The executive order is currently being challenged in court.

The administration argues that children of undocumented immigrants and temporary visa holders are not "subject to the jurisdiction" of the United States. However, this interpretation has been widely rejected by legal scholars across the political spectrum.

Neuman argues the interpretation is "either a crazy theory or dishonest interpretation of the Constitution. The Supreme Court explained what those words mean in the Wong Kim Ark case. It reflects the fact that there are these traditional exceptions that really do involve people who are not subject to the nation's jurisdiction. The leading example in the 1860s debates was foreign diplomats, who have diplomatic immunity, who are for the most part not subject to our laws."

Current Supreme Court Status: Procedural Victory, Constitutional Questions Remain

The birthright citizenship case has reached the Supreme Court, but in a complex procedural posture that has left the underlying constitutional questions unresolved. On June 27, 2025, the U.S. Supreme Court handed President Donald Trump a major victory by curbing the ability of judges to impede his policies nationwide, changing the power balance between the federal judiciary and presidents.

The Supreme Court's Ruling: The 6-3 ruling, authored by conservative Justice Amy Coney Barrett, did not let Trump's directive restricting birthright citizenship go into effect immediately, directing lower courts that blocked it to reconsider the scope of their orders. Critically, the ruling also did not address the legality of the policy itself.

What the Court Did: The Supreme Court limited the ability of federal judges to issue nationwide injunctions blocking executive orders, ruling that judges may provide "complete relief" only to the plaintiffs before them. Warning against an "imperial judiciary," Barrett wrote, "No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation."

What the Court Didn't Do: The Supreme Court did not rule on the birthright issue itself. The court's conservative majority left open the possibility that the birthright citizenship changes could remain blocked nationwide. Trump's order aims to deny citizenship to U.S.-born children of people who are in the country illegally, but the constitutional merits of this policy remain unresolved.

Timeline and Next Steps: The court's ruling set a 30-day timeframe from June 27 for any policy implementation, giving more time for legal challenges. Within two hours of the Supreme Court's ruling, immigrant rights attorneys filed a new class action lawsuit on behalf of organizations whose members include people without legal status who "have had or will have children born in the United States after February 19, 2025."

Lower Court Consensus: Multiple federal judges have ruled against the executive order. Three federal district court judges separately blocked Trump's order, with one judge writing that "citizenship by birth is an unequivocal constitutional right" and that the executive order "directly conflicts with 125-year-old binding Supreme Court precedent." No court has ever adopted the Trump administration's position on the constitutional interpretation.

The ultimate constitutional question — whether the president can end birthright citizenship through executive action — remains for future litigation, with most legal scholars expecting the Supreme Court to eventually uphold the traditional interpretation of the 14th Amendment.

The Stakes for American Identity

The current battle over birthright citizenship represents more than an immigration policy dispute — it touches the core of American identity and the 14th Amendment's promise of equality. The amendment was enacted specifically for purposes of assisting newly freed Black people. Although the 13th Amendment ended slavery, it left uncertain the status of those who had been kept in bondage. The infamous Dred Scott case had held that Blacks had no rights that whites were bound to respect and denied them citizenship.

Eliminating birthright citizenship would be un-American. Birthright citizenship has been the rule since the dawn of the Republic. We should have a compellingly good reason to eliminate it—one better than frustration with the federal government's inability to enforce existing immigration laws.

As legal challenges work their way through the courts, the fundamental question remains: Will the 14th Amendment's promise that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens" continue to define American citizenship as it has for more than a century and a half?

The answer will determine not only who can claim American citizenship but also whether the constitutional principles forged in the crucible of the Civil War can withstand contemporary political pressures. For Wong Kim Ark's descendants and millions of other Americans whose citizenship traces back to the 14th Amendment's inclusive promise, the stakes could not be higher.

Sidebar: Evolution of Federal Immigration and Citizenship Control

From the early days of the republic in 1790, congress used Naturalization and then Immigration laws for racist purposes to keep out minorities. Before the Civil War and 14th amendment they were used to limit African and Haitian naturalization. After that, they were used to limit Asian, mainly Chinese. 

Early Period: Open Borders with Citizenship Restrictions (1790-1875)

Citizenship Laws Came First: The federal government began regulating citizenship much earlier than immigration. The Naturalization Act of 1790 was a law of the United States Congress that set the first uniform rules for the granting of United States citizenship by naturalization. The law limited naturalization to "free white person(s) ... of good character".

Constitutional Foundation: Article I, section 8, clause 4 of the Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization. Pursuant to this power, Congress in 1790 passed the first naturalization law for the United States.

Early Citizenship Requirements: The Act provided that any free white person who resided within the limits and under the jurisdiction of the United States for at least two years could be granted citizenship if he or she showed good character and swore allegiance to the Constitution.

Pre-1875 Immigration Policy: During the 18th and most of the 19th centuries, the United States had limited regulation of immigration and naturalization at a national level. Under a mostly prevailing "open border" policy, immigration was generally welcomed, although citizenship was limited to "white persons" as of 1790.

First Federal Immigration Restrictions (1875-1882)

The Page Act of 1875: The Page Act of 1875 was the first restrictive federal immigration law in the United States, which effectively prohibited the entry of Chinese women, marking the end of open borders. The first federal statute restricting immigration was the Page Act, passed in 1875. It barred immigrants considered "undesirable," defining this as a person from East Asia who was coming to the United States to be a forced laborer, any East Asian woman who would engage in prostitution, and all people considered to be convicts in their own country.

Key Transition Point: After certain states passed immigration laws following the Civil War, the Supreme Court in 1875 declared regulation of immigration a federal responsibility. Thus, as the number of immigrants rose in the 1880s and economic conditions in some areas worsened, Congress began to pass immigration legislation.

Chinese Exclusion Act of 1882: After the immigration of 123,000 Chinese in the 1870s, who joined the 105,000 who had immigrated between 1850 and 1870, Congress passed the Chinese Exclusion Act in 1882 which limited further Chinese immigration.

Federal Agency Creation and Expansion (1891-1924)

Federal Immigration Service: The federal government assumed direct control of inspecting, admitting, rejecting, and processing all immigrants seeking admission to the United States with the Immigration Act of 1891. The 1891 Act also expanded the list of excludable classes, barring the immigration of polygamists, persons convicted of crimes of moral turpitude, and those suffering loathsome or contagious diseases.

Ellis Island Opens: On January 2, 1892, the Immigration Service opened the U.S.'s best known immigration station on Ellis Island in New York Harbor.

National Origins System: The Immigration Act of 1924 limited the number of immigrants allowed entry into the United States through a national origins quota. The quota provided immigration visas to two percent of the total number of people of each nationality in the United States as of the 1890 national census. It completely excluded immigrants from Asia.

Key Historical Context

Why Federal Control Emerged: However, only one federal law existed to restrict immigration between 1787 and 1875. That law, which was passed in 1803 but poorly enforced, banned the "importation" of any free "negro, mulatto, or other person of color" to the United States in the wake of the Haitian Revolution.

State vs. Federal Authority: Before 1875, immigration was largely regulated by states and local ports. Passports and visas were not required for entry into America; rules and procedures for arriving immigrants were determined by local ports of entry or state laws. Processes for naturalization were determined by local county courts.

The Pattern: The federal government established a dual system early on:

1. Citizenship control from 1790 - creating legal conditions for who could become American
2. Immigration control from 1875 - creating legal conditions for who could enter America

This progression shows how federal control evolved from regulating who could become American to regulating who could even enter the country, with both systems initially designed to maintain racial and ethnic preferences that favored Europeans while excluding or restricting others.

Sources

Primary Sources

1. U.S. Constitution, Amendment XIV, Section 1 (1868)
2. Indian Citizenship Act of 1924, Public Law 68-175, 43 STAT 253
3. Civil Rights Act of 1866, 14 Stat. 27-30

Supreme Court Cases

4. United States v. Wong Kim Ark, 169 U.S. 649 (1898). Available at: https://www.law.cornell.edu/supremecourt/text/169/649
5. Dred Scott v. Sandford, 60 U.S. 393 (1857)

Government Sources

6. The White House. "Protecting The Meaning And Value Of American Citizenship." January 21, 2025. https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/
7. National Archives. "14th Amendment to the U.S. Constitution: Civil Rights (1868)." March 6, 2024. https://www.archives.gov/milestone-documents/14th-amendment
8. U.S. Constitution Annotated, Congress.gov. "Citizenship Clause Doctrine." https://constitution.congress.gov/browse/essay/amdt14-S1-1-2/ALDE_00000812/

Academic and Legal Analysis

9. Harvard Law School. "Can birthright citizenship be changed?" January 24, 2025. https://hls.harvard.edu/today/can-birthright-citizenship-be-changed/
10. American Immigration Council. "Birthright Citizenship in the United States." October 16, 2024. https://www.americanimmigrationcouncil.org/research/birthright-citizenship-united-states
11. Migration Policy Institute. "Repealing Birthright Citizenship: The Unintended Consequences." December 8, 2024. https://www.migrationpolicy.org/news/repealing-birthright-citizenship-unintended-consequences
12. National Academy of Sciences Report on Immigration Integration (2015)

Historical Sources

13. Teaching American History. "Congressional Debate on the 14th Amendment." July 5, 2024. https://teachingamericanhistory.org/document/congressional-debate-on-the-14th-amendment/
14. Constitution Center. "John Bingham: One of America's forgotten 'Second Founders'." https://constitutioncenter.org/blog/happy-birthday-john-bingham-one-of-americas-forgotten-second-founders
15. Immigration History. "Indian Citizenship Act of 1924." August 25, 2019. https://immigrationhistory.org/item/1924-indian-citizenship-act/

Current Legal Developments

16. Reuters. "Supreme Court in birthright case limits judges' power to block presidential policies." June 27, 2025. https://www.reuters.com/legal/government/us-supreme-court-may-rule-allowing-enforcement-trump-birthright-citizenship-2025-06-27/
17. NPR. "What is birthright citizenship and what happens after the Supreme Court ruling?" June 27, 2025. https://www.npr.org/2025/06/27/nx-s1-5448863/birthright-citizenship-supreme-court-ruling
18. American Civil Liberties Union. "Trump's Executive Order on Birthright Citizenship, Explained." January 22, 2025. https://www.aclu.org/news/immigrants-rights/trumps-remarks-on-birthright-citizenship-explained

Federal judge seeks clarity on whether birthright citizenship order means babies could be deported