Birthright Citizenship

A recurring argument in some segments of American politics holds that the framers of the Fourteenth Amendment did not intend to confer automatic citizenship on the children of individuals the nation preferred to exclude, and that the longstanding legal consensus is based on a fundamental misreading of the Amendment. In this essay, I argue that this interpretation is incorrect, and I will demonstrate that the question was explicitly debated and resolved on the Senate floor in 1866. The lawmakers involved had both the opportunity and motivation to include exceptions yet deliberately chose not to do so. Their decision reflects an intentional and considered legislative judgment, rather than an oversight or ambiguity.

California's Senator Wanted a List of Exceptions

On May 30, 1866, the Senate discussed the Citizenship Clause of the Fourteenth Amendment. The wording was clear: all people born or naturalized in the United States, and subject to its jurisdiction, are citizens. Senator Edgar Cowan of Pennsylvania, a Republican, quickly objected, not about the amendment’s main goal of securing citizenship for freed Black Americans after Dred Scott, but about whether it would also apply to groups he considered undesirable. He specifically mentioned the Chinese community in California and Romani immigrants in Pennsylvania, using language that would not be acceptable today.¹

Cowan directly asked the Senate if California was supposed to accept, as he put it, a flood of immigration from the Mongol race.² He argued that the state should have the right to exclude or expel people for these reasons. He tried to add language to the amendment to make an exception for children of Chinese immigrants and Romani families.³ This was not a theoretical concern or a modern historian’s argument. Cowan raised the issue because he knew the amendment’s wording already answered it, and he disagreed with that answer.

Senator John Conness of California, also a Republican, gave him the plain text answer. Conness told Cowan to give himself no further trouble on the matter, and said the Senate was entirely ready to accept that children born in California to Chinese parents would be entitled to citizenship and equal protection under law, same as anyone else.⁴ He wasn't hedging. He restated the point later in the same debate to make sure it stuck. The two men agreed on what the clause meant. They only disagreed about whether that outcome was good policy, which is a different argument than the one currently being resurrected about what the words actually say.

Conness lost his Senate seat a few years later, partly because of the stand he took that day. California voters did not support him for it. The state legislature also refused to ratify the Fourteenth Amendment, and did not officially change its mind until almost a hundred years later.⁵ In American history, it is not unusual for someone to make the right constitutional decision and face political consequences, or for a state to resist parts of the Constitution it does not like.

Then Somebody Actually Tested It

It is one thing for Congress to put something in the record, but another to see the government try to enforce a stricter interpretation anyway. That is what happened thirty years later. Wong Kim Ark was born in San Francisco in the early 1870s to Chinese immigrant parents who, under the Chinese Exclusion Act of 1882, could never become naturalized citizens.⁶ When Wong left the country to visit family, he was denied re-entry because officials claimed that, as the son of Chinese nationals, he was not a citizen, no matter where he was born.

The case went to the Supreme Court, and in 1898 the Court ruled 6 to 2 that Wong Kim Ark was a citizen from birth.⁷ Justice Horace Gray’s majority opinion did what critics of birthright citizenship say was never done: it looked for the original meaning. Gray tracked the rule of citizenship by birthplace through English common law and found it had always been part of American law, even before the amendment. He concluded that the framers wrote the Citizenship Clause to protect this rule from a hostile Congress or future Court, not to create a stricter rule.⁸ The ruling made only two exceptions: children of foreign diplomats and children born during a hostile military occupation. It did not make an exception for children of immigrants the government found inconvenient, because the government had argued for that and lost.

Take a moment to consider the timeline, because it is often overlooked. Sixteen years after passing a law that barred Chinese immigrants from becoming citizens, the federal government still had to recognize their American-born children as citizens at birth, because the Constitution required it. Congress could deny citizenship to the parents but still had to grant it to the children, since the amendment allowed no exceptions. This contradiction was not a mistake for future courts to fix, as, according to Wong Kim Ark, it was exactly how the amendment was meant to work.

The Same Argument, in a Different Suit

Executive Order 14160, signed by President Trump on his first day back in office in January 2025, revived an argument that the Senate rejected in 1866 and the Supreme Court rejected in 1898, but with updated language. The order, called "Protecting the Meaning and Value of American Citizenship," aimed to deny automatic citizenship to children born after February 19, 2025, if their parents were in the country unlawfully or on a temporary visa.⁹ This legal theory did not use the old racial arguments like Cowan’s. Instead, it concentrated on the word domicile, which is not in the Citizenship Clause. The argument, later supported by three dissenting justices, claimed that "subject to the jurisdiction thereof" really means permanent legal residence and political allegiance, so children born here to parents without legal status would not be covered.¹⁰

Every lower court that reviewed the order found it unconstitutional, and one federal judge even called it blatantly so.¹¹ When the Supreme Court first looked at the case in June 2025, it did not decide on the main issue. Instead, it focused on whether district courts could block the order nationwide with universal injunctions. The Court ruled that they usually could not, which allowed the order to take effect in some states while legal challenges continued elsewhere.¹² In July, a federal judge in New Hampshire certified a nationwide class of affected infants and blocked enforcement against them. The administration appealed directly to the Supreme Court, and the justices agreed to hear the main arguments.¹³

The Supreme Court heard oral arguments on April 1, 2026, and issued its decision on June 30, 2026, in Trump v. Barbara. Chief Justice Roberts wrote for the majority, stating that children born in the United States to parents who are here unlawfully or temporarily are subject to U.S. jurisdiction and are citizens at birth under the Fourteenth Amendment.¹⁴ Roberts relied on Wong Kim Ark, saying the 1898 decision had already confirmed the Fourteenth Amendment follows the common law rule of citizenship by birth, with only the same narrow exceptions.¹⁵ Justice Kavanaugh agreed with the outcome but based his decision on narrower statutory grounds, so six justices still agreed the order could not stand.¹⁶ Justices Thomas and Gorsuch dissented, arguing that citizenship should only go to those born and domiciled in the country, so children of parents here unlawfully or temporarily would not qualify.¹⁷ Justice Alito also dissented, employing similar arguments about allegiance, and warned that the ruling could spur more people to enter or stay in the country illegally.¹⁸

If you compare that dissent to Cowan’s speech from May 1866, the similarities are clear. Cowan’s real issue was not with the word jurisdiction. He questioned whether people he saw as outsiders, no matter their legal status, could truly belong in the country in a way the Constitution had to respect. In 1866, Conness replied that the text did not care about those opinions, and in 2026, a slim majority of the Court said the same thing, more than 160 years later.