A History of the Fourteenth Amendment at the Supreme Court and the Future of Birthright Citizenship in the United States 

Shiza Saad is a first-year in the College of Arts and Sciences at Georgetown University majoring in Political Economy. 

The Fourteenth Amendment to the United States Constitution grants citizenship to all persons born in the United States and provides equal protection and due process to all citizens.¹ In 1898, a case brought to the Supreme Court by Wong Kim Ark tested the amendment’s application. Ark was born in San Francisco in 1873; his parents were laborers and Chinese subjects but maintained a permanent residence in San Francisco.² In 1895, Ark made a temporary trip to China but was denied permission to land at the port of San Francisco and was detained due to the Chinese Exclusion Act, which was enacted in 1882.³ The Chinese Exclusion Act prevented people of Chinese descent from entering the United States and from naturalization.⁴

Ark argued that since he was born in the United States, he was a citizen of the country and thus the Chinese Exclusion Act could not be applied to him.⁵ The Supreme Court ruled in Ark’s favor in a 6-2 decision, and Justice Horace Gray’s majority opinion pointed out that there is no definition of citizenship besides what the Fourteenth Amendment states.⁶ The majority opinion indicated that “the opening sentence of the Fourteenth Amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship.”⁷ The opinion also noted that “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.”⁸ Gray emphasized that although the Fourteenth Amendment had been established to grant citizenship to Black and formerly enslaved people born in the United States, the amendment is not restricted “by color or race.”⁹ The dissenting opinion of Justices Melville Fuller and John Marshall Harlan argued that since Ark’s parents were not citizens of the United States, they were still subjects of and had a duty to the emperor of China, and that sentiment extended to Ark as well.¹⁰ Fuller wrote that the Fourteenth Amendment does not “arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.”¹¹ 

About 126 years later, shortly after being sworn into office for his second term as President of the United States, Donald Trump issued an executive order ending birthright citizenship, claiming that the citizenship should not be granted to children of unauthorized immigrants or those in the country temporarily.¹² Only three days after the signing of the order, a Seattle federal judge, Senior United States District Judge John Coughenour, who was appointed by Ronald Reagan, temporarily barred the Trump administration from enforcement of the order and called it “blatantly unconstitutional.”¹³ In the weeks following, twenty-four states and other organizations, including the American Civil Liberties Union, filed lawsuits to challenge the executive order.¹⁴ Considering the current Supreme Court’s originalist approach and their concern for history and tradition in the United States, it seems as though the justices will be unlikely to reverse the precedent set by United States v. Wong Kim Ark.¹⁵ Harvard Law School Professor Gerald Neuman when asked if birthright citizenship could be changed or altered unilaterally by the president, responded, “Absolutely not. The president has no authority to change the citizenship rule at all. Congress can change the rule, but only to the extent of making it broader. Neither Congress nor the president can reduce it below the constitutional minimum.”¹⁶

According to the precedent set by United States v. Wong Kim Ark, experts on constitutional law, and the current Supreme Court’s traditionalist approach, it seems incredibly unlikely that birthright citizenship in the United States will be revoked. The Court is rigid in its interpretation of the United States Constitution, so it would be contradictory to interpret the Fourteenth Amendment as one that does not guarantee birthright citizenship. The definitive language of the Fourteenth Amendment is explicit in its assertion, stating, “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.”¹⁷

1. U.S. Const. amend. XIV, § 1. ↩︎
2. United States v. Wong Kim Ark, 169 U.S. 649 (1898). ↩︎
3.  Id. ↩︎
4. Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882). ↩︎
5. United States v. Wong Kim Ark supra at 2. ↩︎
6.  Id. ↩︎
7.  Id. ↩︎
8.  Id. ↩︎
9.  Id. ↩︎
10.  Id. ↩︎
11.  Id. ↩︎
12. Amy Howe, A History of Birthright Citizenship at the Supreme Court, SCOTUSBLOG (Feb. 5, 2025, 9:57 AM), https://www.scotusblog.com/2025/02/a-history-of-birthright-citizenship-at-the-supreme-court/.
    ↩︎
13.   Id. ↩︎
14.  Joan Biskupic, How the modern Supreme Court might view the 14th Amendment and birthright citizenship, CNN (Jan. 23, 2025, 2:17 PM), https://www.cnn.com/2025/01/23/politics/supreme-court-birthright-citizenship-14th-amendment-wong-kim-ark/index.html. ↩︎
15.  Id. ↩︎
16.  Rachel Reed, Can Birthright Citizenship Be Changed?, HARV. L. SCH. (Jan. 24, 2025), https://hls.harvard.edu/today/can-birthright-citizenship-be-changed/. ↩︎
17.  U.S. Const., supra note 1. ↩︎