Born in the USA
David Cole on birthright citizenship
Tomorrow, the United States Supreme Court will hear oral arguments on the legality of President Trump’s executive order from last year that attempted to overturn the principle of birthright citizenship. In the Review’s April 23, 2026, issue, David Cole writes about “the merits of the case”—or lack thereof.
Below, alongside Cole’s essays, are five articles from our archives about citizenship and immigration in the United States.
Born in the USA
David Cole
Who are we? On April 1 the Supreme Court will take up that question when it hears oral arguments in a challenge to President Donald Trump’s executive order of January 20, 2025—the first day of his second term—denying citizenship to children born in the United States to foreign nationals who are not lawful permanent residents. That order has never gone into effect, because multiple courts have declared it unconstitutional. But the Trump administration has appealed and is now asking the Supreme Court to radically narrow the scope of what is commonly known as birthright citizenship.
The issue pits a xenophobic administration against a well-established understanding that virtually all persons born here are US citizens regardless of their parents’ status. No lower court has sided with the Trump administration on the merits of the case. For the Supreme Court to do so would require it to repudiate the Constitution’s text, the Court’s own precedents, and the enduring understanding of all three branches and of the American people. But more than that, it would literally change our identity as a nation that welcomes all who are born here.
The case, Trump v. Barbara, is governed by the first sentence of the Fourteenth Amendment, adopted in 1868, which 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.” The immediate purpose of this citizenship clause was to overrule the Supreme Court’s decision in Dred Scott v. Sandford (1857) that the children of freed slaves were not citizens of the US. The amendment’s drafters sought to make crystal clear that citizenship extended equally to all those born here.
While the amendment’s specific target was Dred Scott, it was written more broadly, not merely to prohibit racial discrimination or to make the newly freed slaves citizens but to declare citizenship a constitutional right of everyone born in the United States and “subject to the jurisdiction thereof.” Like the Fourteenth Amendment more generally, the citizenship clause was a guarantee of equality. Citizenship, after all, is the foundation of one’s belonging to and status in a political community, and it is the source of important rights. Equal citizenship is the foundation of democracy, and the framers sought to prevent politicans from eroding that foundation.
The central question in the case concerns the meaning of “subject to the jurisdiction thereof.” The Trump administration argues that the phrase restricts citizenship to children of parents who have made the US their “domicile,” or permanent home, and are therefore “completely” subject to our jurisdiction and not subject to the jurisdiction of any other sovereign. Because foreign nationals here on temporary visas, such as students, tourists, and temporary workers, have not made the United States their domicile, the administration argues, they are not “subject to the jurisdiction” of the United States. And because foreign nationals who are here unlawfully are not authorized to make the US their permanent home, even if they would like to do so, they, too, are not subject to US jurisdiction. In this view, only the children of citizens and permanent resident immigrants become citizens by birth.
There is a reason—actually many reasons—why not a single judge has found this argument persuasive. First, the text of the citizenship clause does not use the word “domicile.” That concept, which turns on an individual’s intent to remain in a particular place, is governed by state law and has never been used to define US citizenship. The Trump argument would require the Court to read into the amendment a word that is not there. So much for “originalism,” “textualism,” and merely enforcing the Constitution’s plain terms.
Second, the Supreme Court made clear as early as 1812, in a unanimous opinion by Chief Justice John Marshall in The Schooner Exchange v. McFaddon, that all persons within the US are subject to the federal government’s jurisdiction, even temporary visitors. To be subject to jurisdiction, Marshall explained, means to be obligated to follow US law and to be entitled to its protection. Even temporary visitors must follow our law and are protected by it, and they therefore are subject to our jurisdiction. The same is true for undocumented immigrants, who can be arrested just like everyone else if they commit a crime and are entitled to all the constitutional protections of the criminal process if they are prosecuted. Thus children of the very classes of noncitizens Trump seeks to exclude are in fact subject to US jurisdiction—and therefore fall within the terms of the citizenship clause.
Third, the government’s interpretation is directly contrary to the common law that governed citizenship in England and the US before the adoption of the Fourteenth Amendment. The framers of the amendment explained that they sought to codify that common law approach. Under English common law, virtually everyone born in the king’s dominion was a “subject” or “citizen” of Great Britain, regardless of their parents’ nationality or status. English law recognized only two exceptions: the children of foreign sovereigns or ambassadors and children born in territory occupied by a hostile country. In those rare situations, the child was not subject to the king’s jurisdiction, because representatives of a foreign sovereign were seen as carrying their sovereignty with them, and because if one is born in territory controlled by a foreign adversary, one is subject to its jurisdiction.
The same rule applied in the United States before the adoption of the Fourteenth Amendment. The leading decision on the question, Lynch v. Clarke (1844), a New York State case, ruled that a child born in the US even to foreign parents present only on a “temporary sojourn” was a US citizen. Other courts, two US attorney generals, and the leading treatise on American law, James Kent’s Commentaries, all cited Lynch as stating the American common law rule of birthright citizenship.
Read the full article on the Review’s website here.
From the Archives: A Nation of Immigrants
Sherrilyn Ifill on the endeavor to remake America
Atossa Araxia Abrahamian on the problems posed by statelessness
Sarah Churchwell on the history of eugenics in America
Joseph O’Neill on America’s self-destructive hostility to immigrants
Pramila Jayapal on the imagination of immigrants
There’s something devastating about borrowing Springsteen’s title for a piece about who gets to be born here at all. The song was always about the gap between the myth and the reality of belonging — and this case is, in a way, the legal version of that same rupture.