Who Gets to Be an American?

Birthright Citizenship and the Long Argument Over Who Belongs

A Fair Game Deeper Dive

The contemporary argument over American citizenship appears to turn on five words in the Fourteenth Amendment:

“Subject to the jurisdiction thereof.”

Those five words have carried an astonishing amount of historical weight. They have been used to distinguish citizens from noncitizens, members from outsiders, and people protected by the American promise from people left standing just beyond it.

But as Dr. Gary Kellner reminds us, that is where the contemporary argument begins. It is not where the American story begins.

The American story begins with a more fundamental question:

Who gets to be an American?

Not who may enter the country. Not who may remain here. Not who has completed the paperwork required for naturalization.

Who belongs?

For most of American history, citizenship has never been merely a technical designation.

It has determined who may vote, who may own property, who may testify in court, who receives the protection of the government and, at times, who is even recognized as fully human before the law.

The Constitution originally used the word citizen but did not define it.

The framers established qualifications for members of Congress and the presidency. They referred to “citizens of the United States.” But they never clearly explained how a person became one.

That silence left an opening.

And through that opening came one of the most infamous decisions in the history of the Supreme Court.

Dred Scott and the Citizenship America Denied

Dred Scott was born into slavery in Virginia around 1799.

He was later taken by his enslaver, Dr. John Emerson, into Illinois and the Wisconsin Territory—places where slavery had been prohibited.

Scott eventually returned to Missouri. In 1846, he and his wife, Harriet, sued for their freedom in a St. Louis courthouse. Their argument was based on a principle Missouri courts had previously recognized: once a person had been taken by an enslaver into free territory and lived there, that person became free.

The doctrine was sometimes summarized in four words:

“Once free, always free.”

Scott’s case worked its way through the courts for eleven years. What began as one man’s attempt to establish his freedom became a constitutional confrontation over slavery, congressional power and national citizenship.

On March 6, 1857, the Supreme Court issued its decision in Dred Scott v. Sandford.

Chief Justice Roger B. Taney wrote the majority opinion. The Court ruled against Scott, holding that people of African descent—whether enslaved or free—could not be citizens of the United States within the meaning of the Constitution.

Taney claimed that Black people had been regarded as an inferior class when the Constitution was adopted and therefore were not included within the political community created by it.

In one of the most infamous passages ever written by an American chief justice, Taney declared:

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race.”                              

It is difficult to overstate what the Court did.

Dred Scott did not merely lose his claim to freedom. The Court declared that he did not possess the constitutional standing necessary to bring the case at all. He could not sue as a citizen because, according to the Court, no person descended from enslaved Africans could become a national citizen.

The decision did not apply only to enslaved people. It reached free Black Americans as well—people who had lived in the United States for generations, established homes, built churches and businesses, served communities and, in some states, voted.

Taney’s opinion attempted to place an entire race outside the constitutional nation.

The Court went further.

It held that Congress had no constitutional power to prohibit slavery in federal territories, declaring the Missouri Compromise unconstitutional. Rather than containing the expansion of slavery, the decision opened the possibility that slavery could spread throughout the territories.

The ruling was intended to settle the argument.

It did the opposite.

Abraham Lincoln attacked the decision, warning that the nation was being pushed toward making slavery lawful everywhere. Frederick Douglass condemned it but refused to accept that the Court possessed the final word on the meaning of America.

Douglass called the ruling “open, glaring and scandalous.” Yet he also predicted that the decision would not endure. Courts could make decisions, but decisions could be challenged. Constitutions could be interpreted, but they could also be amended.

Four years later, the nation was at war.

A War Over Union—and Membership

The Civil War began as a struggle over secession and the survival of the Union. But the war could not remain separated from the institution that had caused the rupture.

On January 1, 1863, President Lincoln’s Emancipation Proclamation declared enslaved people in the rebelling states to be free. It was a wartime order, limited by military necessity and geography. It did not abolish slavery throughout the United States.

That required the Thirteenth Amendment.

Passed by Congress on January 31, 1865, and ratified on December 6 of that year, the amendment declared that neither slavery nor involuntary servitude—except as punishment for a crime—could exist within the United States.

Slavery had been abolished.

But freedom and citizenship were not the same thing.

A person could no longer be owned and still be denied the civil standing necessary to participate in American life. Southern states began adopting Black Codes that restricted movement, employment, property ownership and other basic freedoms. The legal machinery of slavery was being replaced by new systems of racial control.

Congress responded with the Civil Rights Act of 1866.

The act declared that all persons born in the United States and “not subject to any foreign power,” excluding Native Americans who were not taxed, were citizens of the United States. It attempted to establish national citizenship by statute and to give Black Americans the same basic civil rights enjoyed by white citizens.

President Andrew Johnson vetoed it.

Johnson argued that Congress was exceeding its constitutional authority and discriminating in favor of Black Americans. Congress overrode the veto on April 9, 1866—the first time in American history that Congress overrode a presidential veto of major legislation.

But the lawmakers who supported the act understood that a future Congress might repeal it. A later president might refuse to enforce it. A hostile Supreme Court might declare it unconstitutional.

Dred Scott had demonstrated what could happen when citizenship depended upon the judgment of political institutions.

The principle needed to be placed beyond the reach of ordinary politics.

It needed to be written into the Constitution.

The Fourteenth Amendment Answers Dred Scott

The Fourteenth Amendment was proposed in 1866 and ratified in 1868. Its first sentence was a direct constitutional answer to Dred Scott:

“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.”

The sentence did something revolutionary.

It placed national citizenship first.

Before the Civil War, many Americans understood their primary citizenship to arise from the state in which they lived. National citizenship was often treated as something derived from state citizenship.

The Fourteenth Amendment reversed that relationship. A person meeting its requirements was a citizen of the United States and of the state in which that person resided. No state could decide that an entire race of Americans did not belong.

The amendment did not say “white persons.” It did not say “people of European descent.” It did not condition citizenship upon the status, nationality or ancestry of a person’s parents.

It said all persons.

The amendment was submitted to the states on June 16, 1866. On July 28, 1868, Secretary of State William Seward formally certified that it had received the necessary ratifications and had become part of the Constitution.

Dred Scott had been constitutionally repudiated.

A Supreme Court decision had removed Black Americans from national citizenship. A constitutional amendment restored citizenship by placing it beyond the authority of any single court, president or Congress to redefine by ordinary means.

The amendment also contained the Due Process and Equal Protection Clauses, which would become central to later battles over segregation, education, marriage, criminal justice and individual rights.

But before all of those protections came a declaration of identity:

You are a citizen.

Five Words—and Their Meaning

The contemporary dispute does not usually center on the phrase “born or naturalized in the United States.”

It centers on what follows:

“And subject to the jurisdiction thereof.”

What did those words mean?

They could not mean merely that a person must obey American law. Nearly everyone physically present in the United States must obey its laws, whether a citizen, visitor or foreign national.

Opponents of broad birthright citizenship have argued that the words require something more: complete political allegiance to the United States. Under that interpretation, a child might be born on American soil but excluded from citizenship because the parents owed allegiance to another country or lacked permanent legal status here.

Supporters of the traditional understanding argue that “jurisdiction” refers principally to the authority of the United States to govern and protect a person.

If a child is born within American territory and is subject to American law, the child is within American jurisdiction.

Historically, there have been narrow exceptions.

The American-born children of accredited foreign diplomats are generally not citizens at birth because diplomats remain under the jurisdiction of the nations they represent and possess immunity from much of American law.

Children born to hostile occupying forces would also fall outside the rule because the United States would not exercise sovereign authority over the occupied territory at that moment.

The original constitutional treatment of Native Americans was more complicated and more troubling.

Tribal nations were recognized as distinct political communities. Native Americans maintaining tribal relations were therefore frequently regarded as owing direct political allegiance to their tribes rather than to the United States.

In Elk v. Wilkins in 1884, the Supreme Court held that John Elk, who had been born into a tribal nation but later separated from it and lived in Omaha, Nebraska, did not automatically become a citizen under the Fourteenth Amendment merely by leaving his tribe and placing himself under American jurisdiction.

Citizenship, the Court concluded, required the consent of the United States.

It was another example of the government deciding that a person born on American land could nevertheless remain outside American membership.

Congress gradually granted citizenship to particular Native American groups through treaties and legislation. Finally, the Indian Citizenship Act of 1924 declared all noncitizen Native Americans born within the territorial limits of the United States to be citizens.

Even then, citizenship did not guarantee equal participation.

Some states continued finding ways to prevent Native Americans from voting. Arizona’s Supreme Court did not overturn one of the state’s principal barriers until 1948.

The lesson is important.

Citizenship may be declared in law and still resisted in practice.

The same was true after the Fourteenth Amendment.

Its language was broad, but America’s willingness to honor it remained uncertain.

That uncertainty would be tested by the son of Chinese parents born in San Francisco.

Wong Kim Ark and the Door America Tried to Close

Wong Kim Ark was born in San Francisco in 1873. His parents were Chinese subjects who had established a permanent residence and operated a business in California.

Wong was born five years after the ratification of the Fourteenth Amendment.

By its language, he appeared to be an American citizen.

But his life unfolded during a period of intense hostility toward Chinese people in the American West. Chinese laborers had been recruited in large numbers during the nineteenth century, particularly during construction of the western portion of the transcontinental railroad.

They performed some of the most dangerous work. They blasted tunnels through the Sierra Nevada, worked through severe winters and faced discrimination even while their labor helped bind the continent together.

When economic conditions deteriorated, Chinese workers became convenient targets. They were accused of taking jobs, depressing wages and refusing to assimilate. Political movements organized around their exclusion.

The Chinese Exclusion Act, signed by President Chester A. Arthur on May 6, 1882, barred the immigration of Chinese laborers for ten years and prevented Chinese immigrants already living in the United States from becoming naturalized citizens.

It was the first major federal law to exclude immigrants on the basis of nationality and class.

The Geary Act of 1892 extended the exclusion system and required Chinese residents to carry documentation proving their lawful presence. Chinese communities were subjected to surveillance, detention, deportation and violence.

Wong Kim Ark’s parents could live in the United States, conduct business and raise their family here. But because they were Chinese, federal law denied them the opportunity to become naturalized Americans.

Their son’s claim to citizenship therefore depended upon the Fourteenth Amendment.

Wong traveled to China in 1890 and was permitted to return to the United States as an American citizen. He made a second trip in 1894.

When he returned to San Francisco aboard the steamship Coptic in August 1895, customs officials refused to allow him to enter.

The government now argued that Wong was not an American citizen.

His parents were subjects of the emperor of China, the government contended. Because they owed allegiance to a foreign sovereign, their American-born son was not completely subject to the jurisdiction of the United States.

Wong challenged his detention.

The case reached the Supreme Court as United States v. Wong Kim Ark. On March 28, 1898, the Court ruled for Wong by a vote of 6–2.

Justice Horace Gray wrote the majority opinion.

The Court traced birthright citizenship to English common law and the principle known as jus soli—the right of the soil. Under that tradition, a child born within the sovereign’s territory generally became a natural-born subject because the sovereign protected the child at birth and the child, in return, owed allegiance to that sovereign.

The exceptions were narrow, principally involving the children of foreign diplomats or children born under hostile occupation.

The Fourteenth Amendment, Justice Gray concluded, embodied that established rule.

Wong’s parents were not diplomats. They were living under the authority and protection of American law. Their inability to become naturalized citizens did not place their American-born child outside the Constitution.

The Court declared that the amendment affirmed “the ancient and fundamental rule of citizenship by birth within the territory.”

Wong Kim Ark was an American.

The importance of the decision went far beyond one man’s right to come home.

Had the government prevailed, a permanent hereditary caste could have developed within the United States: generations of American-born people denied citizenship because of their ancestry.

Chinese parents had been forbidden to naturalize. If their American-born children were also denied citizenship, exclusion could have continued from one generation to the next indefinitely.

The decision rejected that possibility.

The country could regulate entry. It could establish naturalization procedures. Congress possessed broad power over national borders.

But the government could not use the ancestry of an American-born child to erase the command of the Fourteenth Amendment.

That distinction is essential.

The law governing who may enter the United States is not identical to the constitutional law determining the citizenship of a person born here.

One concerns admission.

The other concerns membership.

Citizenship Becomes a Constitutional Right

The twentieth century brought further battles over whether citizenship was a privilege supplied by the government or a constitutional status the government could not arbitrarily remove.

During the Cold War, Congress enacted laws under which Americans could lose citizenship for certain conduct, including voting in a foreign election.

Beys Afroyim was born in Poland in 1893 and became a naturalized American citizen in 1926.

He later moved to Israel and voted in an Israeli election.

When he sought to renew his American passport, the State Department informed him that he had lost his United States citizenship.

Afroyim challenged the government.

In Afroyim v. Rusk in 1967, the Supreme Court ruled that Congress could not involuntarily strip him of his citizenship.

Justice Hugo Black wrote that citizenship is “no light trifle to be jeopardized any moment Congress decides to do so.”

The Fourteenth Amendment, the Court held, protects citizenship against involuntary destruction. Unless a citizen voluntarily relinquishes that status, the government cannot simply take it away.

That ruling completed another part of the transformation begun during Reconstruction.

Dred Scott said that the government could deny citizenship to an entire people.

The Fourteenth Amendment said that citizenship followed from constitutional rules rather than racial permission.

Wong Kim Ark said that ancestry could not nullify citizenship acquired at birth.

Afroyim said that citizenship, once constitutionally established, could not be withdrawn merely because the government disapproved of a citizen’s conduct.

Together, these moments changed citizenship from a favor bestowed by those in power into a constitutional relationship.

The Question Returns

On January 20, 2025, President Donald Trump issued Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.”

The order declared that citizenship would not automatically extend to certain children born in the United States when the mother was unlawfully present or present only temporarily and the father was neither a citizen nor a lawful permanent resident.

Once again, the legal argument turned on the words “subject to the jurisdiction thereof.”

The administration contended that physical presence and subjection to American law were not enough.

It argued that the Fourteenth Amendment required a fuller political allegiance—a relationship absent when parents were in the country unlawfully or temporarily.

Opponents answered that the amendment speaks about the child’s birth and the jurisdiction governing the child, not the parents’ immigration classification.

They also argued that a president could not change the Constitution’s definition of citizenship through an executive order.

The first Supreme Court dispute involving the order, Trump v. CASA, produced a June 2025 decision concerning the power of federal judges to issue nationwide injunctions. The Court did not decide the meaning of the Citizenship Clause in that case.

That merits question arrived the following term.

On June 30, 2026, the Supreme Court decided Trump v. Barbara.

The Court held that children born in the United States to parents who are unlawfully or temporarily present are subject to American jurisdiction and are citizens at birth.

Chief Justice John Roberts wrote the opinion for the Court, joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson. Justice Brett Kavanaugh agreed with the judgment while differing from portions of the majority’s reasoning. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented in whole or in part.

The Court began where the citizenship story must begin: with Dred Scott and the constitutional decision to reject it.

The majority concluded that the Fourteenth Amendment incorporated the traditional rule of birthright citizenship.

A child born on American soil and subject to American law is within the jurisdiction of the United States.

The words used repeatedly in the executive order—“mother,” “father,” “lawful” and “temporary”—do not appear in the Citizenship Clause.

The Court also reaffirmed Wong Kim Ark.

It rejected the attempt to confine that decision solely to children whose parents possessed permanent legal domicile.

“What the Court held in Wong Kim Ark was simple,” the majority explained: the Citizenship Clause grants citizenship to nearly all children born in the United States.

The dissenters presented a different historical reading.

They argued that the Fourteenth Amendment required a more complete form of allegiance and that Wong Kim Ark’s parents’ permanent residence was central to the result in that case.

Justice Alito emphasized that Wong’s parents had settled permanently in the United States and had done everything the law allowed them to do to become Americans. Because Chinese immigrants were legally prohibited from naturalizing, denying citizenship to their children would have left them and their descendants permanently outside the nation.

That history is significant.

But the majority concluded that it could not be transformed into a constitutional requirement that parents possess lawful status or permanent domicile.

The child is the person whose citizenship is being determined.

The child is born here.

The child is subject to American law.

And under the Fourteenth Amendment, the child is a citizen.

What the Decision Does—and Does Not—Mean

The ruling does not prevent the United States from enforcing its borders.

It does not eliminate deportation.

It does not give parents lawful status because their child is an American citizen.

It does not allow a newborn child to sponsor a parent for permanent residence.

Under federal law, a United States citizen generally must be at least twenty-one years old before petitioning for a parent.

Citizenship does not automatically resolve every question surrounding the family.

What the ruling does is preserve the separation between two legal questions that are often treated as though they were one.

The first is whether the parents have a legal right to enter or remain in the United States.

The second is whether a child born within the United States and subject to its authority is an American citizen.

The Constitution answers the second question.

A nation has the right—and the responsibility—to control its borders and enforce its laws. But constitutional rights become most important when political pressure makes exceptions appear attractive.

Citizenship cannot remain a stable constitutional status if it changes according to the popularity, ancestry or legal circumstances of a child’s parents.

The Fourteenth Amendment was written precisely because America had already learned what happens when citizenship is left to political discretion.

Dred Scott was not a failure to possess a constitutional principle.

It was a decision to define the national community by race.

Reconstruction answered that decision with two of the most important words in the Constitution:

All persons.

The American Promise

Dr. Kellner reminds us,

The history of American citizenship is not a smooth march from exclusion to equality.

It is an argument.

The Constitution spoke of citizens without fully defining them.

Dred Scott attempted to define citizenship through race and ancestry. The Civil War destroyed slavery but did not automatically establish equal membership. The Civil Rights Act of 1866 tried to supply an answer by statute. The Fourteenth Amendment placed that answer in the Constitution.

Native Americans born on land claimed by the United States were nevertheless excluded from citizenship because of the nation’s complicated and often brutal relationship with tribal sovereignty. Congress did not establish universal statutory citizenship for Native Americans until 1924.

Wong Kim Ark was born in San Francisco but had to take his claim of citizenship to the Supreme Court because the country that employed Chinese labor had decided it did not want Chinese people to become Americans.

Beys Afroyim had to fight the government for the right to keep the citizenship he had lawfully acquired.

And in 2026, the Supreme Court once again had to decide whether the status of a child’s parents could narrow the promise written into the Fourteenth Amendment.

Each chapter returns us to the same question:

Who gets to be an American?

The most enduring answer is not that everyone may enter the United States, that borders have no meaning, or that laws should not be enforced. It is that American citizenship cannot depend upon race, inherited bloodline or the shifting preferences of political power.

The Fourteenth Amendment did not erase prejudice.

It did not guarantee that citizenship would always bring equality.  It did not end the struggle over who would be treated as a full member of the nation. But it established a constitutional floor beneath that struggle.

Dred Scott had said that ancestry could place a person forever beyond the American political community.

The Fourteenth Amendment answered that birth within the nation and subjection to its authority create citizenship.

Wong Kim Ark confirmed that the promise extended to a child whose parents could never naturalize.

And Trump v. Barbara has now reaffirmed that the government cannot rewrite the Citizenship Clause according to the legal status of a child’s parents.

The argument will continue.

American arguments always do.

But the central promise remains written in words deliberately chosen after civil war, emancipation and one of the Supreme Court’s greatest failures:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.

Not provisional Americans.

Not conditional Americans.

Americans.