The birthright citizenship clause is the opening sentence of the Fourteenth Amendment, and it makes citizenship automatic for almost anyone born on American soil. It reads: “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.”1Congress.gov. Fourteenth Amendment Because those words sit inside a constitutional amendment, they outrank every federal statute, executive order, and state law. Changing them would take another amendment: approval from two-thirds of both chambers of Congress and three-fourths of the state legislatures.
The Two Requirements
The clause imposes two conditions, and both have to be met. A person must be born in the United States, and that person must be subject to its jurisdiction.
Born in the United States
The geographic requirement covers the fifty states, the District of Columbia, and most U.S. territories. Births in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands all produce U.S. citizens under federal statute, though the specific dates and conditions vary by territory.2U.S. Citizenship and Immigration Services. Policy Manual – Becoming a U.S. Citizen American Samoa is the exception, addressed further down.
Subject to the Jurisdiction
“Subject to the jurisdiction thereof” means being under the authority of American law: bound to follow it, and reachable by American courts. The Supreme Court in United States v. Wong Kim Ark read the phrase broadly, holding that anyone domiciled in the United States owes allegiance to its laws and is within its jurisdiction.3Cornell Law School. United States v. Wong Kim Ark The exceptions are narrow, rooted in international law rather than immigration policy.
Who Is Excluded
Wong Kim Ark identified a small set of people born on U.S. soil who fall outside the clause.
- Children of foreign diplomats. Accredited diplomatic agents enjoy full immunity from U.S. law under the Vienna Convention. Because they cannot be arrested, sued, or compelled by American courts, they are not “subject to the jurisdiction” in the constitutional sense, and their children born here do not automatically become citizens. The State Department distinguishes high-level diplomats who carry that immunity from lower-ranking consular or administrative staff, whose U.S.-born children do receive citizenship.
- Children of enemy forces during hostile occupation. If a foreign military were to occupy U.S. territory, children born to those forces during the occupation would not gain citizenship. The exception has never been applied in modern times.
American Samoa: Nationals, Not Citizens
People born in American Samoa are the one group born on U.S. soil today who do not receive citizenship at birth. They are classified as “U.S. nationals,” a status that lets them live and work anywhere in the United States but does not grant the right to vote or hold certain government positions.4U.S. Department of the Interior. American Samoa Federal law designates people born in “outlying possessions” as nationals rather than citizens.5Office of the Law Revision Counsel. 8 USC 1408 – Nationals but Not Citizens of the United States at Birth
Legal challenges have tried to extend the citizenship clause to American Samoa. The Tenth Circuit ruled in Fitisemanu v. United States (2021) that the amendment does not require it, and the Supreme Court declined to hear the case in 2022. The outcome partly reflects the wishes of American Samoan leaders themselves, who have argued that automatic citizenship could threaten traditional land-ownership customs tied to Samoan ancestry.
A Historical Exception That No Longer Applies
Before 1924, many Native Americans were excluded from birthright citizenship. In Elk v. Wilkins, the Supreme Court held that an individual born as a member of a federally recognized tribe was not a citizen under the Fourteenth Amendment, reasoning that tribal members owed allegiance to their own sovereign nations.6Justia. Elk v. Wilkins, 112 U.S. 94 (1884) Congress closed the gap with the Indian Citizenship Act of 1924, which declared all Native Americans born within U.S. borders to be citizens regardless of tribal membership and preserved existing rights to tribal property.7National Archives. Indian Citizenship Act of 1924
Why Parental Immigration Status Does Not Matter: Wong Kim Ark
The modern reading of the clause comes from United States v. Wong Kim Ark, decided by the Supreme Court in 1898. Wong Kim Ark was born in San Francisco to Chinese parents who were legal residents but, under the Chinese Exclusion Act, could never become citizens themselves. After a trip to China, he was denied re-entry on the theory that he was not a citizen.3Cornell Law School. United States v. Wong Kim Ark
The Court ruled 6-2 that he was a citizen from birth. The majority traced the amendment’s language to the English common-law doctrine of jus soli, under which anyone born within the territory of a sovereign owed allegiance to that sovereign and was entitled to its protection. The clause, the Court said, “affirms the ancient and fundamental rule of citizenship by birth within the territory” and covers “the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States.”3Cornell Law School. United States v. Wong Kim Ark
What matters most for today’s debates is what the Court rejected. The government had argued that “subject to the jurisdiction” should exclude children whose parents were not eligible for citizenship. The Court said no. Jurisdiction meant general legal authority over a person, not parental eligibility. Everyone else born on American soil was a citizen. That reading has controlled every case since.
Why the Clause Exists
The citizenship clause was a direct repudiation of the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which held that Black people, whether free or enslaved, could never be citizens of the United States. After the Civil War and the abolition of slavery by the Thirteenth Amendment, Congress needed to make citizenship unmistakably clear in the Constitution itself. The Fourteenth Amendment, ratified in 1868 during Reconstruction, tied citizenship to a simple, objective fact: where you were born. It did not ask about the citizenship of your parents, your race, or your immigration status. Anchoring the definition in geography rather than lineage was the point. No future court or Congress could redefine who counted as American by ordinary politics.
The 2025 Executive Order and the Current Supreme Court Case
On January 20, 2025, President Trump signed an executive order titled “Protecting the Meaning and Value of American Citizenship.” It directed federal agencies to stop issuing citizenship documents to two categories of children born in the United States:8The White House. Protecting the Meaning and Value of American Citizenship
- Children whose mother was unlawfully present in the United States and whose father was not a citizen or lawful permanent resident at the time of birth.
- Children whose mother was present on a temporary visa (such as a tourist, student, or work visa) and whose father was not a citizen or lawful permanent resident.
The order applied only to children born more than 30 days after its signing, and it defined “mother” and “father” as biological parents only.8The White House. Protecting the Meaning and Value of American Citizenship
Federal courts moved quickly. Multiple district courts issued preliminary injunctions blocking the order, and a federal court in New Hampshire certified a nationwide class of affected children. The reasoning across these decisions was consistent: the Fourteenth Amendment’s text is not ambiguous, Wong Kim Ark already settled the question, and an executive order cannot override a constitutional provision. The case reached the Supreme Court on an accelerated timeline, with oral arguments held on April 1, 2026. A decision is pending.
Whatever the ruling, the Wong Kim Ark point stands until the Court says otherwise: the jurisdiction requirement refers to being subject to American law generally, not to the immigration status of a child’s parents.