The Law and You: What does 'birthright citizenship' mean?
It is not simply waving a pen or a magic wand. The Constitution itself, in Article V, defines the process. For a proposal to become an official Amendment to the U.S. Constitution, two steps are required. First, the proposed Amendment must be passed by a two-thirds majority vote in both the House of Representatives and the Senate. Second, it must be ratified (approved) by vote in three-fourths of the state legislatures, that is 38 of the 50 states.
This strict multi-layered procedure must be followed to change anything that is in the Constitution. These steps were designed to help ensure that we are a stable 'government of laws, not of men,' according to John Adams in 1776.
There are only 27 Amendments. The first ten are our Bill of Rights, and were adopted in 1791.
To undo an Amendment that has been passed by two-thirds of the members in both Houses of Congress and the legislatures of at least three-fourths of the states is just as difficult, requiring the passage of another Constitutional Amendment. Only one Amendment has ever been repealed; that was Prohibition, which was adopted in 1919 by the 18th Amendment, then repealed by the 21st in 1933.
The challenges to passing an Amendment are illustrated by two proposals regarding the rights of women. After decades of effort, beginning in the 1840's, women achieved the right to vote through the 19th Amendment in 1920. Trying to accomplish an Equal Rights Amendment, so that the Constitution guarantees women the same rights as men, has not yet been successful.
Since 1868, what is called 'birthright citizenship' has been part of the U.S. Constitution. It is clearly stated in the 14th Amendment 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.'
There are at least 33 countries that have unrestricted birthright citizenship. These include Canada and all but one country in North and South America.
Even before this Amendment, it was generally recognized that everyone born in the U.S. or its territories automatically became a citizen. A person born elsewhere could be a 'naturalized citizen' after living here for the required number of years and then formally renouncing allegiance to their birth country and swearing allegiance to the United States.
This part of the 14th Amendment was adopted (1) to ensure that citizenship by birthright could not easily be taken away, and (2) to overturn the 1857 U.S. Supreme Court decision in the Dred Scott case, which held that free African-American people born in this country could never be citizens.
The Congressional debates on the language of the 14th Amendment document that the phrase 'and subject to the jurisdiction thereof,' was understood to exclude only the children of foreign ministers and invading armies, and 'Indians not taxed.' They knew that the clause would extend citizenship to everyone else born on U.S. soil, even, as they said, 'Chinese and Gypsies.'
The son of Chinese immigrants went all the way to the U.S. Supreme Court and established his birthright citizenship in United States v Wong Kim Ark (1898).
Congress anticipated the possibility of a future government that opposed birthright citizenship. Consequently, they not only asserted it in a statute, the Civil Rights Act of 1866, but also in the Constitution. In the words of Sen. Benjamin Wade, their purpose was to 'fortify and make [the citizenship guarantee] very strong and clear.'
The President does not have a role in the amendment process; it is entirely a legislative matter. However, apparently seeking to negate birthright citizenship all by himself, the President issued an Executive Order on January 20, 2025 declaring that a child born in the U.S. is not a citizen unless both parents are either U.S. citizens or 'lawful permanent residents' at the time of the child's birth.
Lawsuits were immediately brought challenging the Constitutionality of that Executive Order. The courts hearing the cases promptly issued injunctions stopping the order from going into effect while the litigation continues.
Eventually, the Supreme Court will likely decide.
— Penny Clute has been an attorney since 1973. She was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.
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RESOURCES
Explanation of Birthright Citizenship and the issues: https://www.npr.org/2025/01/23/nx-s1-5270572/birthright-citizenship-trump-executive-order
Text of Executive Order:
https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/
Explanation of 'government of laws, not of men' quote: https://www.socratic-method.com/quote-meanings-and-interpretations/john-adams-a-government-of-laws-and-not-of-men
United States v Wong Kim Ark, 169 U.S. 649 (1898).
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