President Donald Trump’s executive order seeking to end birthright citizenship has reignited debates over the 14th Amendment and the meaning of citizenship in America. Legal experts Gabriel Chin of the University of California, Davis School of Law; Amanda Frost of the University of Virginia School of Law; Kurt Lash of the University of Richmond School of Law; and Ilan Wurman of the University of Minnesota Law School analyze the legal challenges surrounding birthright citizenship, explore the constitutional and historical arguments on all sides of this debate, and discuss its broader implications for immigration. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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Gabriel "Jack" Chin is the Edward L. Barrett Jr. Chair of Law, Martin Luther King Jr. Professor of Law, and Director of Clinical Legal Education at the University of California, Davis School of Law. His scholarship has appeared in the Penn, UCLA, Cornell, and Harvard Civil Rights-Civil Liberties law reviews and the Yale, Duke and Georgetown law journals among others. The U.S. Supreme Court cited his work on collateral consequences of criminal conviction in Chaidez v. United States and in Padilla v. Kentucky. Justice Sotomayor cited his Penn Law Review article in her dissent in Utah v. Strieff.
Amanda Frost holds the David Lurton Massee, Jr. Professorship of Law and the John A. Ewald Jr. Research Professorship at the University of Virginia School of Law, where she also directs the Immigration, Migration, and Human Rights Program. She is the author of You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers and writes the “Academic Round-up” column for SCOTUSblog. Before entering academia, Frost spent five years as a staff attorney, worked for the Senate Judiciary Committee, and served as acting director of the Immigrant Justice Clinic at American University.
Kurt Lash is the E. Claiborne Robins Distinguished Professor of Law at the University of Richmond School of Law. Founder and director of the Richmond Program on the American Constitution, Lash has published a number of works on the subjects of constitutional history, theory and law, including The Fourteenth Amendment and the Privileges or Immunities of American Citizenship, The Lost History of the Ninth Amendment, and The American First Amendment in the Twenty-first Century: Cases and Materials (with William W. Van Alstyne). He is also the author of a two-volume collection titled “The Reconstruction Amendments: Essential Documents” and is currently working on A Troubled Birth of Freedom: The Struggle to Amend the Constitution in the Aftermath of the Civil War.
Ilan Wurman is the Julius E. Davis Professor of Law at University of Minnesota. He is the author of A Debt Against the Living: An Introduction to Originalism and The Second Founding: An Introduction to the Fourteenth Amendment. His next book, The Constitution of 1789: An Introduction, is also forthcoming.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Trump v. CASA, Inc., United States Court of Appeals for the Fourth Circuit (2025)
- Trump v. Washington, United States Court of Appeals for the Ninth Circuit (2025)
- Trump v. New Jersey, United States Court of Appeals for the First Circuit (2025)
- Amanda Frost, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers (2021)
- Amanda Frost, “The Coming Assault on Birthright Citizenship,” The Atlantic (Jan. 7, 2025)
- Ilan Wurman and Randy Barnett, “Trump Might Have a Case on Birthright Citizenship,” The New York Times (Feb. 15, 2025)
- Ilan Wurman, “Jurisdiction and Citizenship,” Minnesota Legal Studies Research Paper No. 25-27 (April 14, 2025)
- Gabriel “Jack” Chin and Paul Finkelman, “Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation,” UC Davis Law Review, Vol. 54 (April 8, 2021)
- Gabriel J. Chin, “America Has Freaked Out Over Birthright Citizenship For Centuries,” Talking Points Memo (Aug. 2015)
- Kurt Lash, “Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment's Citizenship Clause,” SSRN (Feb. 22, 2025)
- Kurt Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014)
Excerpt from interview: Kurt Lash explains that post-Civil War lawmakers sought to ensure Black citizenship through an allegiance-based rule, though defining it proved difficult.
Kurt Lash: The black codes were denying equal civil, and by civil, we mean citizen, equal citizen rights to black Americans in the Southern states. So that was their key purpose. And they wanted to. Whatever else happened, it had to be clear that there was no longer a color bar to becoming a United States citizen. What was not clear, however, was how to frame it in a way that would only bring on board those with requisite allegiance to the United States. And you're not going to find anyone talking about a bright line rule there. Instead, when you go to the congressional debates, you're going to find mayhem. They struggled and struggled with finding words and approaches that covered not only every international kind of situation with ambassadors, but also how to deal with the experience of Native American tribes. And once they got language that they thought would cover the Native American tribes, then they learned while they were debating that they were members of Native American tribes that had separated from the tribal government but yet were still considered to be foreign citizens. So they struggled mightily to come up with a rule that all the way to the very end they felt was the best they could do in order to create a rule that would require some type of requisite allegiance.
So we shouldn't be surprised at all if it's a difficult kind of clause to interpret. They found it difficult to craft, but they were very clear about what kind of rule it was that they were seeking. And that was an allegiance based rule. Now, in terms of the Confederacy, which I think is kind of a fun example, but I think Ilan has really put his finger on it, note there is an allegiance based reading. You are presumed to owe allegiance. Amanda, this kind of goes to your point about whether or not babies owe allegiance. Ilan's presented wonderful work about the jurisprudence that birth within a country kind of raises a natural form of allegiance for protection. He has a wonderful analysis along those lines. Anyhow, all the Confederates were born citizens and they couldn't get out of treason by claiming that they had somehow dissolved. They had successfully seceded from the Union. No, you hadn't successfully succeeded from the Union. And so when they tried to pass, Thaddeus Stevens tried to pass legislation based on the idea that they had to prove their citizenship. Again, here's John Bingham, my go to person for understanding the 14th amendment, quote, rebel treason and revolt does not make them a foreign nationality, nor put them or the states in which they reside beyond the jurisdiction of the United States States, nor absolve them from their allegiance to this government.
The allegiance rule. Again, very much informing what he's doing. And of course, yeah, you are still Confederates, you're born in the United States, you're still citizens, you still can be subject to treason. Now, as for the existence of former slaves who had been illegally brought into the United States through the horrific practice of the international slave trade, Jack, I think your article's outstanding. Was you and you and Bethany, who would. Who had produced that?
Excerpt from interview: Amanda Frost argues the 14th Amendment guarantees birthright citizenship to ensure equality and prevent government from denying rights based on parental status.
Amanda Frost: First of all, about half, even more than of our undocumented immigrant population entered legally and then overstayed. It's quite possible under immigration law to overstay and then to adjust status and become legal again. My question is, if you happen to give birth in the month in which you're out of status, which the immigration law recognizes can happen and allows you to get back in status, your child's automatically not a citizen because you violated immigration laws at the moment the child's born. Then the parent goes on to be legal, but the child is illegal. Or what about the fact that I am a birthright citizen with a passport, but I do have to follow immigration laws. For example, I can't employ undocumented immigrants, something, by the way, that this administration does not enforce, even though it seems to be enforcing every other law. And also, I can't enter outside of the port of entry or without showing my passport. So if I violate that law and enter my country in violation of law, do I now lack allegiance and lack citizenship. It's nonsensical. And finally, I'll go back to the original understanding, which was a couple of pieces here that I think are worth emphasizing.
One, as Jack so eloquently said, undocumented immigrants were not unknown in 1866. Congress was well aware of that problem with many different groups, not just formerly enslaved people, but also people who came in in violation of state laws that barred people from coming in with disease or who had been convicted of crimes or were impoverished. People came in in violation of the laws then, just as they do now. Congress knew it well. Congress didn't include them. Also, tourism is not new, and temporary visitors are not new. Congress was well aware of them. The only group it mentioned accepting from this universal birthright citizenship rule that it was creating were the children of diplomats, Native Americans, and hostile armies. Why even mention diplomats if all temporary immigrants aren't covered by definition? Diplomats are temporary. They're not planning to stay. So why even bother carving that out? It just makes sense. And the fact, of course, that what Congress wanted to do, and here I'll quote from Jacob Howard, he said this new law, this citizenship clause that I have proposed, which was adopted exactly as he proposed it, he said, I want to remove all doubt as to what persons are or are not citizens of the United States.
If he was here right now, he'd say, the last thing I want is to be debating this in the courts of America. He just saw what the Supreme Court did in Dred Scott. He certainly wouldn't have trusted the executive. Several other senators said the same thing. They wanted a clear bright line rule so that we wouldn't allow our executive branch and our courts to pick and choose who was an American based on somebody else's view of who had allegiance to the United States. And the last point I'll mention is the consequences of this would be devastating. 300,000 children under that executive order every year would be born, some of them stateless. All of them could be deported the day they're born. All of them could be denied the rights and benefits of citizenship. It would put in question all of our citizenship, including anyone who has an ancestor who violated the law and give the government enormous control over which members of the population could remain in the US with the rights of citizenship to vote and hold office, and which could be deported or deprived of those rights. That is the last thing this Reconstruction Congress wanted when enacted the 14th Amendment to create equality for all born in the United States, which was the overarching goal of that amendment.
Ilan Wurman argues that under international law, birthright citizenship excluded children of temporary sojourners, emphasizing domicile over mere birth.
Ilan Wurman: And in a nutshell, a rule of international law provided that one sovereign did not exercise a complete municipal, domestic, legislative or judicial jurisdiction over the municipal rights and relations of dependent nations, right and their members. Now, this is important because this also explains other exceptions like ambassadors and armies. Why couldn't we exercise jurisdiction over ambassadors, for example. Chief Justice Marshall said, we could if we wanted to. It's our choice not to do that. But the point is, under international law, it would have been illegitimate to do that. So there was an international law exception to the exercise of a complete legislative or judicial jurisdiction.
Why does this matter? Because the traditional view of birthright citizenship that Professor Frost says is just well accepted and not a difficult question ignores a substantial amount of evidence that the drafters, the principal drafters of the citizenship clauses of the fourteenth Amendment and Civil Rights act thought that the children born of temporary sojourners would be excluded. Okay, the traditional views cannot explain that. So when I say who thought this, Lyman Trumbull, the chair of the Judiciary Committee in the Senate who introduced the Civil Rights Acts provision, wrote in a letter to Andrew Johnson, it would make citizens of children born to domiciled aliens.
Jacob Howard, Excuse me. William Fessenden, the chair of the Joint Committee on Reconstruction, suggested strongly that it wouldn't include that it was in a slightly different context. James Wilson, the chair of the House Judiciary Committee, when introducing the Civil Rights Act system citizenship clause, said it would not include the children born of ambassadors or of temporary sojourners. Jacob John Bingham, the principal author of the rest of Section 1 in 1859, suggested the domicile was important. Two secretaries of state in the 1880s denied passports to persons born in the United States because they were born to parents who were temporarily sojourning.
And the court Wong Kim Ark emphasized time and again the domicile mattered. Maybe they were all wrong, but that's a lot of people who really were in the know more than anybody else right to be wrong about this and the international law might provide an explanation, namely, under international law, it was generally held that a sovereign did not have complete legislative jurisdiction over all the municipal rights of temporary visitors, particularly related to capacity, personal status, marriage, citizenship. Okay, they could decline to exercise judicial jurisdiction in cases involving transient visitors. And another example is they were transient visitors, but were not subject to militia duty, but domiciled foreigners were. In this sense, they didn't exercise complete jurisdiction. So, the last sentence. An international law framework of complete jurisdiction, of exceptions to a complete jurisdiction explains not only the traditional exceptions, not only native tribes, but all this evidence about domicile and how the domicile mattered that the traditional views cannot explain.
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