Does the Constitution Mandate Universal Birthright Citizenship?

Who is a United States citizen by birth? This question has increasingly received national attention, in large part because of President Donald Trump’s promise to “end birthright citizenship.”

As I explain, however, in my recent Heritage Foundation legal memo titled “The Citizenship Clause’s Original Meaning and What It Means Today,” Congress definitively settled that question in 1866 when it passed the 14th Amendment. The problem is that Congress’ answer was far different from what Americans today often assume.

Even though the U.S. government has long abided by a policy of universal birthright citizenship—that is, of treating all persons born in the United States as citizens, regardless of the immigration status of their parents—the reality is that the Constitution doesn’t mandate this policy.

In fact, while the Citizenship Clause eliminated race-based barriers to birthright citizenship, Congress expressly intended to limit birthright citizenship based on the strength of a person’s relationship to the United States.

More importantly, the government today need not amend the Constitution in order to restrict citizenship for the U.S.-born children of illegal or non-immigrant aliens. It could simply stop abiding by a broad policy never required by the Constitution in the first place.

Context and Legislative History:


[Amy Swearer is a senior legal policy analyst at the Meese Center for Legal and Judicial Studies at The Heritage Foundation.]