Why Birthright Citizenship Needs a Second Look

Born in the USA—But Should That Mean Automatic Citizenship? Why a 126-Year-Old Court Ruling Needs a Second Look

After 23 years in litigation, I’ve seen courts follow bad precedents simply because they exist. But not all decisions are correct from the start. One of the most debated rulings today is United States v. Wong Kim Ark (1898), which declared that anyone born in the U.S.—regardless of their parents’ status—is automatically a citizen. It’s time to re-examine this.

• The majority opinion relied on English common law, which follows the rule of jus soli—citizenship by birthplace. The Court decided that Wong Kim Ark, born in the U.S. to Chinese parents who were not citizens, was a U.S. citizen under this doctrine.

• The dissenting opinion argued that the phrase "subject to the jurisdiction" in the Fourteenth Amendment means full allegiance to the U.S., not just being born on U.S. soil. The dissent warned that this ruling would create unintended consequences by granting citizenship too broadly.

• The Fourteenth Amendment, passed after the Civil War, states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The legislative history reveals that its proponents aimed to establish absolute equality of all citizens before the law, regardless of race or color, and to eliminate racial discrimination by states against their citizens. It was not intended to provide automatic citizenship to anyone born within U.S. borders.

It’s about time this issue is re-examined. A decision based on flawed reasoning should not dictate U.S. citizenship policy forever. The Constitution and its history—not outdated foreign laws—should determine who is a citizen.