Explainers/Constitution
Birthright citizenship and the 14th Amendment, explained
The Citizenship Clause has governed who is a citizen at birth since 1868. Here is the text, the case law behind it, and where the current legal dispute sits.
8 min read|Updated August 5, 2026
The first sentence of the 14th Amendment says 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 where they live. Congress ratified it in 1868 to overturn Dred Scott v. Sandford and secure citizenship for formerly enslaved people. In United States v. Wong Kim Ark (1898) the Supreme Court held that the clause covers children born on U.S. soil to non-citizen parents. The current dispute turns on the phrase "subject to the jurisdiction thereof" and whether it excludes children of parents who are in the country unlawfully or temporarily.
- The text
- "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." — 14th Amendment, Section 1, ratified July 9, 1868.
- Controlling case
- United States v. Wong Kim Ark (1898), decided 6-2, held that a man born in San Francisco to Chinese national parents was a U.S. citizen by birth.
- Statutory parallel
- 8 U.S.C. 1401 repeats the rule in federal law, granting citizenship to a person born in the United States and subject to its jurisdiction.
- Recognized exceptions
- Children of accredited foreign diplomats, children born to hostile occupying forces, and, historically, members of sovereign tribal nations — a gap Congress closed with the Indian Citizenship Act of 1924.
- How it could change
- By constitutional amendment, or by a Supreme Court ruling reinterpreting the clause. Lower courts have consistently applied Wong Kim Ark.
Why was the clause written?
In Dred Scott v. Sandford (1857) the Supreme Court held that people of African descent could not be citizens. Congress responded first with the Civil Rights Act of 1866, which declared all persons born in the United States and not subject to any foreign power to be citizens, and then wrote the guarantee into the Constitution so a future Congress could not repeal it. The Senate debated the jurisdiction language in 1866, with sponsors saying it excluded foreign diplomats, foreign armies and tribal members who owed allegiance elsewhere.
What did Wong Kim Ark decide?
Wong Kim Ark was born in San Francisco to parents who were Chinese subjects lawfully living there. After a trip abroad he was denied re-entry under the Chinese Exclusion Act. The Court held that the 14th Amendment adopted the English common-law rule of jus soli — citizenship by place of birth — and that being subject to the jurisdiction of the United States means being subject to its laws, which non-citizen residents are. It listed the narrow exceptions for diplomats, hostile occupiers and, at that time, tribal members. The holding has been applied ever since.
What does 'subject to the jurisdiction thereof' mean in practice?
Courts have read it as meaning subject to U.S. law and to prosecution, taxation and legal process. A foreign visitor who commits a crime in the United States is tried in a U.S. court; an accredited diplomat has immunity and is not. That contrast is the traditional line. Those who argue the clause excludes children of unauthorized immigrants read jurisdiction to mean complete political allegiance, not merely obedience to law. Every federal appellate decision to consider the question has rejected that reading.
Which countries have similar rules?
Unrestricted birthright citizenship is common in the Americas — Canada, Mexico, Brazil, Argentina and most of the hemisphere. Most of Europe and Asia use jus sanguinis, citizenship by parentage, sometimes with residency-based exceptions. The United Kingdom narrowed its rule in the British Nationality Act 1981, and Ireland did so by referendum in 2004.
Could Congress change it by statute?
Bills to redefine the clause by statute have been introduced repeatedly since the 1990s and none has passed. Most constitutional scholars in both parties say a statute cannot narrow a constitutional guarantee, so a change would require either a constitutional amendment or a Supreme Court decision reinterpreting the Citizenship Clause. An amendment requires two-thirds of both chambers and ratification by 38 states.
What is at stake administratively?
Birth on U.S. soil, documented by a state-issued birth certificate, is the primary proof of citizenship for most Americans. Any rule conditioning citizenship on parental status would require a new documentation system in which parents establish their own immigration status to register a child's citizenship, affecting passport issuance, Social Security enrollment and benefits eligibility for citizens and non-citizens alike.