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Could U.S. birthright citizenship be lost?

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Image by PublicDomainPictures from Pixabay
Image by PublicDomainPictures from Pixabay

Birthright citizenship in the United States has a long and complex history that is intertwined with the nation’s racist past. The question of addressing who has birthright citizenship can be traced back to 1790 when the first naturalization law was passed. This law limited citizenship to "free white persons" who had lived in the United States for two years and had a good character. The children of these citizens were also given citizenship.

The Dred Scott decision, which was handed down by the Supreme Court in 1857, has had a significant impact on the debate over birthright citizenship in the United States. The decision held that Black people, whether enslaved or free, were not citizens and could never become citizens. This ruling effectively denied birthright citizenship to Black children born in the United States.

To repudiate the Dred Scott decision in 1868, the Fourteenth Amendment to the Constitution was ratified. This amendment defined citizenship as applying to "All persons born or naturalized in the United States, and subject to the jurisdiction thereof." This was a major expansion of birthright citizenship, as it included children of all races and ethnicities.

The Supreme Court has upheld the Fourteenth Amendment's guarantee of birthright citizenship on several occasions. In the 1898 case of Wong Kim Ark, the Court ruled that a Chinese American man who was born in the United States was a citizen by birthright. The Court's decision in Wong Kim Ark has been cited in subsequent cases upholding birthright citizenship.

There have been some attempts to challenge birthright citizenship in recent years. While president in 2018, Donald Trump said he planned to issue an executive order to limit birthright citizenship, but never followed through. Many legal scholars at the time were skeptical that Trump could use executive authority to roll back the right.

Today Trump is again promising that if elected president he would seek to end automatic citizenship for children born in the United States to immigrants in the country illegally. And Trump isn’t alone. His rival for the GOP nomination, Florida Governor Ron DeSantis is also pledging to end birthright citizenship.

The future of birthright citizenship in the United States is uncertain. There is some political support for ending birthright citizenship, but it is unclear whether such a change would be constitutional. For now, birthright citizenship remains the law of the land.


Katherine Hawkins is the senior legal analyst at The Project on Government Oversight (POGO), a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing.

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*This interview will be recorded on Wednesday, July 12.

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David Martin Davies can be reached at dmdavies@tpr.org and on Twitter at @DavidMartinDavi