Revisiting Birthright Citizenship

A Constitutional Gap and a Pragmatic Solution

For years, the debate over birthright citizenship has been framed as a battle between constitutional originalists who argue that the 14th Amendment’s “jurisdiction” clause limits automatic citizenship and progressives who claim that the issue is settled law under United States v. Wong Kim Ark (1898).

But the reality is more complicated. The Supreme Court has never explicitly ruled on whether the children of illegal migrants qualify for birthright citizenship. While Wong Kim Ark upheld jus soli (birthright citizenship) for the child of lawful permanent residents, it did not address those whose parents entered the U.S. illegally.

This lack of a clear legal framework creates a problem for both sides. Conservatives want to restrict automatic citizenship but face the challenge of over 125 years of practice. Liberals argue that citizenship should remain universal but struggle to counter the textual ambiguity of the phrase “and subject to the jurisdiction thereof” in the 14th Amendment.

A possible solution? A carve-out based on participation in U.S. legal systems, distinguishing those who have engaged with the jurisdiction of the U.S.—such as by obtaining a Taxpayer Identification Number (TIN) and paying taxes—from those who entered unlawfully and remained entirely outside the system.

Why the Current Framework is Incomplete

The 14th Amendment’s text is often oversimplified. While it guarantees that all persons born in the U.S. and subject to its jurisdiction are citizens, it does not define what “jurisdiction” means in this context.

• In Elk v. Wilkins (1884), the Supreme Court held that Native Americans were not U.S. citizens at birth because they owed allegiance to tribal governments—implying that “jurisdiction” requires exclusive political allegiance to the U.S.

• In Wong Kim Ark (1898), the Court affirmed birthright citizenship for the children of legal residents, but it did not decide whether children of illegal entrants qualified.

That legal gap has never been addressed, leaving the issue ripe for Supreme Court review.

A Carve-Out That Solves the Problem

Instead of eliminating all birthright citizenship for children of illegal migrants—a move that would likely be politically and legally untenable—the Supreme Court could rule that:

• Birthright citizenship applies to children of parents who have some recognized legal or tax presence in the U.S.

• Parents who obtained a TIN, paid taxes, or otherwise formally interacted with U.S. institutions would be deemed sufficiently under U.S. jurisdiction to pass on birthright citizenship.

• Those who entered unlawfully and never engaged with U.S. authorities would not automatically confer U.S. citizenship to their children.

Why This Works for Both Sides

For Conservatives:

• It upholds the original intent of the 14th Amendment by ensuring that only those who are meaningfully under U.S. jurisdiction pass on citizenship.

• It prevents broad misuse of birthright citizenship as an incentive for illegal entry.

• It avoids an abrupt legal reversal that could lead to mass statelessness.

For Liberals:

• It preserves the core holding of Wong Kim Ark while adapting it to modern immigration realities.

• It recognizes children of those who have participated in the U.S. system, ensuring fairness for those whose parents made an effort to comply with U.S. laws.

• It avoids a draconian, sweeping change that could be seen as an attack on immigrants.

A Forward-Looking Rule Without Retroactive Impact

The ruling could apply only moving forward, meaning no one who has already been granted citizenship would lose it. This would prevent constitutional chaos while setting a clear standard for future cases.

Likely Outcome

Given the current conservative-leaning Supreme Court, a 5-4 or 6-3 ruling in favor of this compromise is highly possible. The carve-out allows the Court to:

• Preserve precedent (Wong Kim Ark remains intact).

• Reinterpret “jurisdiction” without overturning a century of law.

• Create a clear standard that can be consistently applied.

This ruling would offer the first definitive Supreme Court interpretation of “subject to the jurisdiction thereof” in the 14th Amendment, addressing a legal void that has remained unresolved for 150 years.

Conclusion: A Constitutional Fix for a Political Problem

Rather than continuing a legal and political tug-of-war, this carve-out could provide a legally sound, middle-ground solution. It protects birthright citizenship while recognizing that “jurisdiction” cannot be an unlimited concept. By distinguishing those who have engaged with U.S. legal systems from those who have not, the Court can resolve this issue in a way that satisfies both legal tradition and modern realities.