Who are we? On April 1 the Supreme Court will take up that question when it hears oral arguments in a challenge to President Donald Trump’s executive order of January 20, 2025—the first day of his second term—denying citizenship to children born in the United States to foreign nationals who are not lawful permanent residents. That order has never gone into effect, because multiple courts have declared it unconstitutional. But the Trump administration has appealed and is now asking the Supreme Court to radically narrow the scope of what is commonly known as birthright citizenship.

The issue pits a xenophobic administration against a well-established understanding that virtually all persons born here are US citizens regardless of their parents’ status. No lower court has sided with the Trump administration on the merits of the case. For the Supreme Court to do so would require it to repudiate the Constitution’s text, the Court’s own precedents, and the enduring understanding of all three branches and of the American people. But more than that, it would literally change our identity as a nation that welcomes all who are born here.

The case, Trump v. Barbara, is governed by the first sentence of the Fourteenth Amendment, adopted in 1868, which provides that “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 immediate purpose of this citizenship clause was to overrule the Supreme Court’s decision in Dred Scott v. Sandford (1857) that the children of freed slaves were not citizens of the US. The amendment’s drafters sought to make crystal clear that citizenship extended equally to all those born here.

While the amendment’s specific target was Dred Scott, it was written more broadly, not merely to prohibit racial discrimination or to make the newly freed slaves citizens but to declare citizenship a constitutional right of everyone born in the United States and “subject to the jurisdiction thereof.” Like the Fourteenth Amendment more generally, the citizenship clause was a guarantee of equality. Citizenship, after all, is the foundation of one’s belonging to and status in a political community, and it is the source of important rights. Equal citizenship is the foundation of democracy, and the framers sought to prevent politicans from eroding that foundation.

The central question in the case concerns the meaning of “subject to the jurisdiction thereof.” The Trump administration argues that the phrase restricts citizenship to children of parents who have made the US their “domicile,” or permanent home, and are therefore “completely” subject to our jurisdiction and not subject to the jurisdiction of any other sovereign. Because foreign nationals here on temporary visas, such as students, tourists, and temporary workers, have not made the United States their domicile, the administration argues, they are not “subject to the jurisdiction” of the United States. And because foreign nationals who are here unlawfully are not authorized to make the US their permanent home, even if they would like to do so, they, too, are not subject to US jurisdiction. In this view, only the children of citizens and permanent resident immigrants become citizens by birth.

There is a reason—actually many reasons—why not a single judge has found this argument persuasive. First, the text of the citizenship clause does not use the word “domicile.” That concept, which turns on an individual’s intent to remain in a particular place, is governed by state law and has never been used to define US citizenship. The Trump argument would require the Court to read into the amendment a word that is not there. So much for “originalism,” “textualism,” and merely enforcing the Constitution’s plain terms.

Second, the Supreme Court made clear as early as 1812, in a unanimous opinion by Chief Justice John Marshall in The Schooner Exchange v. McFaddon, that all persons within the US are subject to the federal government’s jurisdiction, even temporary visitors. To be subject to jurisdiction, Marshall explained, means to be obligated to follow US law and to be entitled to its protection. Even temporary visitors must follow our law and are protected by it, and they therefore are subject to our jurisdiction. The same is true for undocumented immigrants, who can be arrested just like everyone else if they commit a crime and are entitled to all the constitutional protections of the criminal process if they are prosecuted. Thus children of the very classes of noncitizens Trump seeks to exclude are in fact subject to US jurisdiction—and therefore fall within the terms of the citizenship clause.

Third, the government’s interpretation is directly contrary to the common law that governed citizenship in England and the US before the adoption of the Fourteenth Amendment. The framers of the amendment explained that they sought to codify that common law approach. Under English common law, virtually everyone born in the king’s dominion was a “subject” or “citizen” of Great Britain, regardless of their parents’ nationality or status. English law recognized only two exceptions: the children of foreign sovereigns or ambassadors and children born in territory occupied by a hostile country. In those rare situations, the child was not subject to the king’s jurisdiction, because representatives of a foreign sovereign were seen as carrying their sovereignty with them, and because if one is born in territory controlled by a foreign adversary, one is subject to its jurisdiction.

The same rule applied in the United States before the adoption of the Fourteenth Amendment. The leading decision on the question, Lynch v. Clarke (1844),a New York State case, ruled that a child born in the US even to foreign parents present only on a “temporary sojourn” was a US citizen. Other courts, two US attorney generals, and the leading treatise on American law, James Kent’s Commentaries, all cited Lynch as stating the American common law rule of birthright citizenship.

Still, there have always been some who viewed this rule as too permissive and advocated for limiting citizenship to children of US citizens. In the 1890s, when the Chinese Exclusion Act barred entry to Chinese nationals, the federal government sought to exclude Wong Kim Ark, a young man who had been born in the US to Chinese parents. The government argued that he was not a citizen because his parents were Chinese foreign nationals. The Supreme Court rejected that argument and instead interpreted the citizenship clause to apply the English and American common law described above. The decision in United States v. Wong Kim Ark (1898) exhaustively reviewed the legal precedents and repeatedly noted that the only two exceptions to birthright citizenship under English common law were children born to foreign ambassadors or those born in hostile occupied territories. It reasoned that the American common law adopted the same exceptions, with a single addition for the children of Native Americans on tribal land. The Court treated Native Americans as having a status similar to that of ambassadors: they were physically within US territory but considered subject to a foreign sovereign’s jurisdiction. (Congress subsequently extended birthright citizenship to all Native Americans by statute in 1924.)

In describing the question presented and its ruling, however, the Court in Wong Kim Ark stated that Wong’s Chinese parents had made their domicile in the United States. The Trump administration, latching on to that fact and noting that the Court used the term “domicile” twenty-two times in its opinion, argues that the decision establishes only that children of lawful permanent residents are citizens and therefore does not foreclose denying citizenship to children of foreign nationals who are not lawfully domiciled here.

But one can reach that result only by ignoring the Court’s extensive reasoning. Nowhere in the 10,000-word decision did the Court ever suggest that a parent’s domicile in the US was a requirement for birthright citizenship. On the contrary, it recognized only the three exceptions noted above. Despite its repeated (and often redundant) discussions of these narrow exceptions, the Court in Wong Kim Ark did not once suggest that children of temporary visitors or of persons unlawfully here were not subject to US jurisdiction and therefore not entitled to citizenship. Indeed, the Court in Wong Kim Ark expressly rejected the notion that only those domiciled in the US are subject to its jurisdiction, quoting Daniel Webster:

Independently of a residence with intention to continue such residence; independently of any domiciliation…an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes as a native-born subject might be.

Though there were two dissenters in the Wong Kim Ark case, the question has been considered settled for many generations. The Franklin Delano Roosevelt administration took the view that children of even temporary visitors were entitled to citizenship by birth, and the Justice Department has long maintained that position. Congress enacted legislation in 1940 and 1952 that incorporated wholesale the language of the citizenship clause, thereby endorsing the view that had been established in Wong Kim Ark and long applied by the federal government. The Trump administration’s brief explains, however, with typical Trumpian modesty, that everyone has been “mistaken” for all these years, and that Trump has now corrected the mistake.

But the established consensus is no mistake. It reflects a fundamental commitment to equality. By guaranteeing that everyone born in the country is equally a citizen, the framers overruled Dred Scott and sought to enshrine citizenship in a simple fact—birth in the US—that could not be manipulated to deny equal treatment. In Wong Kim Ark, the Court reaffirmed that principled commitment to equality in the face of widespread anti-Chinese prejudice. Today a government that fans the flames of prejudice against those deemed different from us seeks once more to deny this guarantee of equality. Against it is arrayed the Constitution’s text, history, and original understanding as well as the long-standing position of all three branches. That should be more than enough for the Supreme Court to tell Trump no.

—March 25, 2026