Majority of Americans oppose ending birthright citizenship, NPR/Ipsos poll finds

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WASHINGTON — As the Supreme Court takes up President Trump’s push to end birthright citizenship today, a new NPR/Ipsos poll finds that less than a third of all Americans want to drop the longstanding principle that any child born on U.S. soil is automatically a citizen, even as other parts of the White House’s immigration crackdown draw wider support.

The poll shows that public attitudes toward Trump’s hardline immigration policies remain remarkably stable so far, though the data also show subtle signs of softening in support for some of those policies since January.

“I agree with what he’s trying to do,” said poll respondent Randy Crabtree of Vermillion, Ohio, in a follow-up interview. Crabtree, a Republican who voted for Trump last year, supports the White House’s push to deport anyone in the country illegally and to send alleged members of criminal gangs to a counterterrorism prison in El Salvador.

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“Removing those that are gang-affiliated and sending them to the prison down there in El Salvador, I wholeheartedly applaud,” Crabtree said.

The White House says the deported men have ties to Tren de Aragua and other gangs, but has released little evidence to support its allegations. Friends and family members of many of the deported men dispute that they’re gang members, saying they were targeted largely for their tattoos.

Nearly half of poll respondents say they support quickly deporting alleged members of the Venezuelan gang Tren de Aragua under a seldom-used 18th-century wartime law known as the Alien Enemies Act, while only 31% say they’re opposed. Among Republicans, that support jumps to nearly four out of five; for Democrats, it’s about one in four.

Public opinion on Trump’s proposal to end birthright citizenship, which the vast majority of legal scholars believe is enshrined in the 14th Amendment to the Constitution, has shifted very little since he announced the plan in an executive order in January. 53% of poll respondents oppose the idea, with only 28% in favor. That’s virtually unchanged since an NPR/Ipsos poll in February, when 31% supported the idea of ending birthright citizenship and 54% opposed it.

The latest NPR/Ipsos poll was conducted from May 9 to 11 with 1,019 respondents. The margin of error is 3.7% for all respondents.

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A subtle shift on hardline deportation policies?

The public is more evenly split when it comes to Trump’s promise to build the largest deportation operation in U.S. history.

In our latest poll, 40% of respondents say they support “mass deportation of everyone who is in the country without legal status,” with 42% opposed. That’s virtually the same as the split in our previous poll , when 44% were in favor of mass deportation and 42% were opposed.

But that decline was more pronounced among political independents. Their support for mass deportation has fallen from 44% in February to 37% now — a drop of 7 percentage points, which is within the poll’s margin of error.

Still, it suggests that some Americans who voted for Trump last year may be having second thoughts about his high-profile crackdown on immigrants, which has included workplace and courthouse raids and sped-up deportations that have drawn scores of legal challenges, and raised deep concerns about due process and the constitutionality of many of his actions.

“I think it’s a little bit too far,” said Crystal Thomas, a poll respondent from Louisville, Ky. Thomas describes herself as a Republican-leaning independent who voted for Trump despite some misgivings because he was “the lesser of two evils for me,” as she put it in a follow-up interview.

But Thomas said she has watched with growing concern as immigrants who’ve lived and worked in her community for years have been swept up in the Trump administration’s crackdown.

“It’s too much,” Thomas said. “They’re just doing this stuff, I think, to pump up numbers like, ‘Oh, hey, we got this many people out of the country,’ and everyone’s just cheering them on like, ‘oh wow, you guys are doing such a good job.’ But at the end of the day, these are real people and these are real families that they’re ripping apart.”

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Deep divisions over due process

The poll also posed a series of questions about due process, and whether respondents believe that immigrants here without legal status deserve the same legal protections as American citizens to defend their rights and to have a fair hearing when their freedom is at stake. The answers reveal a wide range of views that sometimes appear to be in conflict with each other.

“The American public sees a lot of shades of gray around immigration,” said Mallory Newall, a vice president at Ipsos.

“One of the big questions here — this issue of who is deemed an American, and how we proceed with immigrants who don’t have legal status — is one of the biggest political fault lines in our society today,” Newall said.

On the one hand, the poll found that 45% of Americans say that First Amendment protections for free speech should apply equally to immigrants, regardless of their legal status. And less than a third of respondents support canceling visas for international students who participated in pro-Palestinian protests.

But on the other hand, 46% of poll respondents agreed with Trump’s complaint that it would take too long to give trials to millions of immigrants without legal status before deporting them. And nearly as many said that constitutional rights should not apply to immigrants in the country illegally.

“I think anyone that has entered our country illegally has no rights under our Constitution. The Constitution was written and given for the citizens of the land,” said Crabtree, the poll respondent from Ohio.

The Fifth and Fourteenth amendments to the Constitution say that no “person” can be “deprived of life, liberty, or property” without due process, and do not mention citizenship.

Poll respondent Catherine Welty says she’s dismayed by what she sees as the erosion of those fundamental rights.

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“It’s very scary. That’s not the way I thought America worked,” said Welty, who lives near Phoenix.

Welty, a Democratic voter, says she’s troubled by the case of Kilmar Abrego Garcia, the Maryland man who was wrongly deported to El Salvador, as well as other Venezuelan men who were quickly removed without a chance to dispute allegations of gang affiliation.

And Welty, who describes herself as multiracial, worries that her 20-year-old son could be mistaken for an immigrant without legal status.

“They just don’t seem to care if mistakes are happening, and they’re doubling down and they’re like, ‘well, that’s too bad for them’ kind of thing,” Welty said. “It’s shocking that that would happen without any sort of due process.”

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This is why the United States is often called “a nation of immigrants” and “ a melting pot ,” meaning an amalgamation of many cultures. The Statue of Liberty (“Lady Liberty”) honors this tradition as a beacon of hope. The statue on Liberty Island in New York Harbor, in fact, was often the first thing immigrants saw from their boats as they approached America and disembarked at the immigration station at nearby Ellis Island , where immigrants were inspected and officially processed. The statue’s uplifted torch welcomed untold millions of immigrants. and the words of poet Emma Lazarus inscribed on the base of the Statue of Liberty reinforced the ideal of America as a safe haven for the needy: “Give me your tired, your poor, your huddled masses yearning to breathe free.” [90] [92]

The United States, by far, attracts more international migrants than any other country, making it “the top destination in the world” for people seeking a new life in a new country. It has been a focal point of emigration and immigration —leaving one country (emigration) and migrating to another one (immigration)—since the very founding of the country, when British colonization of the East Coast of North America led to the formation of the 13 colonies , which became in 1776 the first 13 U.S. states. Seeking opportunity and to escape persecution, poverty, and famine, immigrants have come to America wanting freedom, work, and a new life, and their experiences and dreams have formed an integral part of American history and the American character. [87] [88]

Immigration to America often came in waves. These included the European (mainly British) colonization of the East Coast in the 17th and 18th centuries; the large influx of immigrants from Northern and Western Europe (heavily from Germany, Ireland, and the United Kingdom) from the 1820s-80s; the large influx of immigrants from Southern and Eastern Europe (many of them Catholic and Jewish immigrants) from 1880s-1924; Jewish and European refugees escaping Nazi Germany , the Holocaust , and the ravages of World War II from the 1920s-50s; and since the 1960s, migrants from Mexico and Central and South America . [88] [89]

The recent migrants from Mexico and Central and South America have troubled many U.S. citizens because the immigrants came into the country illegally, without background checks for possible histories of criminality. How to deal with this latest wave of immigration played a critical role in the presidential election of 2024 and the reelection of President Donald Trump . Upon taking office for his second term as president, Trump quickly resurrected the 1798 Alien Enemies Act (one of the four Alien and Sedition Acts of 1798) to justify his deportation of illegal immigrants. His use of these acts for deportations was quickly challenged in court. [91]

Americans’ reactions to the these waves of immigration has impacted the American experience as significantly as the immigrants themselves. The Alien and Sedition Acts passed by Congress in 1798 sought to restrict immigration and deport immigrants out of fear of radical, foreign ideas. Many of the immigrants to the U.S. during the 1880s-1920s came from non-English speaking countries in Southern and Eastern Europe, compared to earlier immigrants from Britain and Northern and Western Europe. They were often seen as alien and “un-American” and faced staunch prejudice and discrimination, which has been characterized as examples of xenophobia (meaning fear and dislike of strangers and foreigners) and nativism (the desire to protect the interests of native-born or established inhabitants against those of immigrants). The U.S. Congress has also passed several restrictive immigration laws, including the Chinese Exclusion Act of 1882 and the National Origins Quota Act of 1924, which severely restricted legal immigration until 1965, when it was repealed by the Immigration and Nationality Act. [88]

“A Path to Citizenship”

Whether the U.S. should offer a “path to citizenship” for the millions of undocumented immigrants in the country has been a hotly debated issue. “Path to citizenship” is a political phrase used by advocates for a special process by which undocumented immigrants can become U.S. citizens. This process may include special requirements (such as fees, background checks, or additional waiting times) beyond those already in place for the naturalization of documented, legal immigrants. Citizenship means the immigrants could receive government benefits (such as Social Security and voting rights), bring family members into the U.S., and be protected from deportation even after committing a crime.[1]

The term “legalization” refers to a different process. Legalization means undocumented immigrants would be allowed to remain in the country legally but would not be allowed citizenship or receive the same rights as U.S. citizens. With legalization, the immigrants would be authorized to work in the U.S., have the ability to legally travel in and out of the country, and would not be subject to deportation for being in the country (though committing certain crimes could lead to deportation). They would not be eligible to vote or to receive government benefits or to bring family members into the country. [1]

Alternatives to citizenship and legalization include the deportation of and civil proceedings against individual or groups of undocumented immigrants. Because being in the U.S. without legal documentation is a civil rather than a criminal offense, criminal proceedings are not an option. [2][3]

A path to citizenship and legalization are sometimes called “amnesty.” Legally, amnesty is “grant[ing] a pardon to those who have committed an offense.” In immigration law, this means “the government forgiving individuals for using forged/false documentation to gain employment in the U.S. and to remain in the country, and would allow illegal immigrants or undocumented immigrant aliens to gain permanent residency in the United States.” Permanent residency could lead to citizenship or another legal status, depending on the immigration action taken by the U.S. federal government. [4]

While a path to citizenship option is often considered a liberal, Democratic Party policy, both Democratic and Republican presidents have promoted, considered, or enacted such policies. Democratic President Jimmy Carter proposed legalization for undocumented immigrants in Aug. 1977, arguably setting the stage for the current debate. The legislation was not supported by the U.S. Congress, but the Select Commission on Immigration and Refugee Policy was established “to study and evaluate the existing laws, policies and procedures governing the admission of immigrants and refugees.” The committee submitted the final report to Republican President Ronald Reagan in March 1981. [5][6]

A direct result of the commission’s report was the path-to-citizenship legislation introduced by Senator Alan K. Simpson (R-WY) and Representative Romano L. Mazzoli (D-KY) in 1982. After several revisions of the bill, Reagan signed it into law in Nov. 1986. Called the Immigration Reform and Control Act (IRCA, also called the Simpson-Mazzoli Act or the Reagan Amnesty), it is widely considered the biggest amnesty in modern American history. The act allowed some undocumented immigrants to apply first for temporary legal status. Once legal status was granted, those immigrants could then apply for lawful permanent residency (a “green card”) and later for citizenship. The law required that the undocumented immigrants had entered the United States prior to Jan. 1, 1982, or be a farm worker with at least 90 days of validated employment in order to embark on the path to citizenship. [6][7][8]

While an Oct. 31, 1986, government memo estimated 2,663,000 undocumented immigrants would be eligible for amnesty under the IRCA, 3,040,475 undocumented immigrants actually applied for temporary legal status via the new law, according to a 2002 Department of Homeland Security (DHS) study. Of those, 2,688,730 (88 percent) received permanent residency, and 889,033 of them (33 percent) had received citizenship by 2001. [9][10]

Undocumented immigrants from Mexico formed the group that most heavily applied for amnesty via the IRCA (2,271,187 people), followed by El Salvador (168,283), Guatemala (71,048), Haiti (60,048), Colombia (34,884), Philippines (29,443), Dominican Republic (28,253), Pakistan (22,534), India (22,085), Peru (19,810), Jamaica (19,260), Honduras (18,169), Poland (17,673), Nicaragua (16,775), Ecuador (16,375), Nigeria (16,266), Iran (15,306), Canada (11,724), Korea (11,512), and China (11,338). [9]

In 1987, following a failed amendment to the IRCA, Reagan’s Immigration and Naturalization Service commissioner, Alan C. Nelson, announced the “Family Fairness” policy that protected from deportation the minor children of undocumented parents covered by the IRCA amnesty, as well as some spouses who met “compelling or humanitarian factors.” Republican President George H.W. Bush expanded upon this new policy, protecting from deportation undocumented family members pursuing the legalization process and allowing them to work if they were in the U.S. before the 1986 passage of the IRCA. These provisions were part of the Immigration Act of 1990. [1][12][13][14]

With these additional paths to legal citizenship now in place for immigrants, the federal government turned to the continuing problem of border enforcement and illegal immigration. In 1996, Democratic President Bill Clinton signed the Republican-sponsored Illegal Immigration Reform and Immigrant Responsibility Act, which made the deportation of undocumented immigrants easier, made more undocumented immigrants eligible for deportation, and made becoming a legal resident or citizen more difficult. As a result of this new law, deportations increased to levels not seen since the Great Depression. However, the undocumented immigrant population also surged, which some experts attribute to increased border security that hindered travel in and out of the country, forcing immigrants in the country to stay. [15]

The population increase presented an issue for Republican President George W. Bush, whose 2007 plan for immigration reform was adamantly opposed to an “automatic path to citizenship or any other form of amnesty.” Bush’s plan leaned heavily on assimilating immigrants and called for undocumented immigrants to be “brought out of the shadows” so they could pay “a substantial penalty.” They would also be required to “learn English, pay their taxes, pass a background check, and hold a job for a number of years” before being eligible for legalization, at which point they would go to the “back of the line” for citizenship consideration behind everyone who had legally applied for citizenship, including refugees. But too few Senate Republicans supported the reform, and the initiative died. [16][17]

Although often considered a policy of President Barack Obama, the DREAM (Development, Relief, and Education for Alien Minors) Act was actually introduced in the U.S. Senate on Aug. 1, 2001, by Orrin Hatch (R-UT), during the presidency of Geoge W. Bush. Several versions of the bill had been introduced in Congress since 2001, with bipartisan support, but none passed both houses. The most recent Senate version (S.264 -– Dream Act of 2021) and House version (H.R.6 -– American Dream and Promise Act of 2021) would have allowed undocumented immigrants who (1) were brought to the U.S. as children and have lived in the U.S. for four years continuously; (2) are high school graduates or GED recipients or enrolled in high school or a GED program; and (3) have no criminal convictions to remain in the country. The immigrants would then be able to apply for lawful permanent residence (a “green card”) on a conditional basis after 8 years (in the Senate bill) or 10 years (House bill) and after completing two years of college in good standing or graduating with a college degree, completing two years of military service, or three years of work (working at least 75 percent of the time). [18][19][20]

The amnesty debate had resurfaced in 2012 with the enactment of DACA (Deferred Action for Childhood Arrivals), a selective enforcement of immigration laws that some compare to Reagan and Bush’s “Family Fairness” policies. An executive order signed by Democratic President Barack Obama on June 15, 2012, DACA prevented the deportation of some undocumented immigrants who arrived in the United States as children and allowed them to get work permits. The order did not, however, offer legalization or a path to citizenship, whereas the DREAM Act would have. [21][22]

In 2017, Republican President Donald Trump announced that his administration would end the DACA program in fulfillment of a campaign promise. But his attempt to kill the law was blocked by the U.S. Supreme Court, which stated that the administration did not offer “a reasoned explanation for its action.” A second attempt to kill DACA died in 2020 when Democrat Joe Biden won the presidency and asked the Department of Homeland Security to “preserve and fortify DACA.” The Biden administration then attempted to expand DACA, presenting Dreamers (as beneficiaries of DACA are called) with additional rights in the Build Back Better Act, which passed the House in 2021 but died in the Senate. On Jan. 17, 2025, a federal appeals court ruled that DACA was unlawful. The judge stayed the decision, allowing DACA recipients to continue renewing their status; however, new DACA applications were not allowed.[23][24][25][26][27][28][29][79]

An Oct. 10, 2024, poll found 58 percent of Americans favored a path to citizenship over mass deportations, with Democrats more heavily in favor (75 percent) than Republicans (45 percent). [81]

For more detail on U.S. immigration history since 1607, and for the latest updates to U.S. immigration policy, see ProCon’s historical timeline.

So, should the U.S. government provide a path to citizenship for undocumented immigrants? Explore the debate below.

During the recent oral arguments in Trump v. Casa, Solicitor General John Sauer repeatedly defended President Donald Trump’s executive order stripping birthright citizenship from millions of U.S.-born children on the grounds that the 14th Amendment “extended citizenship to the children of former slaves, not to people who are unlawfully or temporarily present in the United States.” Unfortunately for Sauer and his boss, the historical evidence tells a different story.

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On May 30, 1866, the U.S. Senate kicked off its debate on the Citizenship Clause of the proposed 14th Amendment, which says, “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 first opponent to speak was Sen. Edgar Cowan (R–Penn.), who objected to the 14th Amendment on the grounds that it would bestow U.S. citizenship on the children of unpopular immigrants. “Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?” Cowan demanded. “Are they to be immigrated out of house and home by Chinese?”

Cowan also worried about the presence of “Gypsies” in Pennsylvania. “They wander in gangs in my State,” he declared. “These people live in the country and are born in the country. They infest society.” Are their children also to be granted birthright citizenship by the language of the amendment? “If the mere fact of being born in the country confers that right,” Cowan complained, “then they will have it; and I think it will be mischievous.”

Sen. John Conness (R–Calif.) then rose to speak in response to Cowan. “I beg my honorable friend from Pennsylvania to give himself no further trouble on account of the Chinese in California or on the Pacific coast,” he said. “We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”

Note that Cowan and Conness both agreed on the meaning of birthright citizenship. They only disagreed about whether or not that meaning would produce a welcome result. And note also that their shared original understanding runs counter to the position now advanced by the Trump administration.

In that same 1866 speech, Conness also pointed out that he had already joined a majority of Congress in voting for birthright citizenship once before. “The proposition before us,” he said, “relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation.”

Conness was referring here to the Civil Rights Act of 1866, which Congress had passed in April over the veto of President Andrew Johnson. Why did Johnson veto it? Among “the provisions I cannot approve,” Johnson wrote, was the first section of the law, in which “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

It was bad enough, according to Johnson, that this statutory guarantee of birthright citizenship would make citizens “out of the entire race designated as blacks.” In his view, “four million of them have just emerged from slavery to freedom. Can it be reasonably supposed that they possess the requisite qualifications to entitle them to all the privileges and immunities of citizens of the United States?” But Johnson also objected to the fact that the Civil Rights Act would make citizens out of the children of “the Chinese of the Pacific States, Indians subject to taxation, [and] the people called Gipsies.” Just like Cowan and Conness, Johnson also understood that birthright citizenship would apply to the U.S.-born children of unpopular immigrants.

Trump may think that birthright citizenship is only “about the babies of slaves.” But as these statements from the 1866 debates make clear, the historical evidence proves him wrong.

Limiting the injunctions without explaining the Trump policy’s unconstitutionality would create chaos across the country

While all three cases involve the EO, the primary question before the Supreme Court involves the issuance of nationwide injunctions to stop the government from implementing it.

The Trump administration isn’t even defending its radical constitutional theory in the Supreme Court—likely because it knows the argument would fail—and instead focused on the legality of nationwide injunctions. Such injunctions have been at the center of political debate in recent years across a variety of policy areas. Proponents argue that these injunctions are necessary to give complete relief to the plaintiffs and also to prevent harm to individuals beyond those named in the cases, especially in cases involving the federal Constitution. Critics argue that such injunctions go beyond the appropriate authority of district court judges and unlawfully limit the authority of the Executive Branch.

Indeed, the Trump administration has attempted to avoid any ruling by the Court on the legality of the executive order by challenging only the scope of the injunctions. That way, if the Court ends up narrowing the injunctions in any respect, the administration can falsely claim a win. The Supreme Court should not be complicit in enabling such a blatant abuse of power.

It is perfectly reasonable for the Supreme Court to rule on the legal principles governing issuance of nationwide injunctions. But limiting the relief in this case could result in nationwide chaos and enable the widespread infringement of core constitutional rights.

It would leave no nationwide standard for citizenship, producing tremendous uncertainty for families. Birth certificates could become meaningless for many families, with no clear system in place to verify or confirm a child’s citizenship. As one court warned, “Existing administrative systems will fail, states and localities will bear the costs of developing new systems for issuing birth certificates and verifying citizenship, and anxious parents-to-be will be caught in the middle.” If the Court limits the scope of relief so that it applies only to individual plaintiffs, some children born in a hospital would be entitled to citizenship but others born in the same hospital on the same day would not. Hospitals and state and local governments simply are not equipped to decide which newborns qualify as citizens and which do not.

This could also lead to children born in certain states being targeted for harassment by state and local law enforcement, and by the federal government, and denial of rights, protections, and benefits guaranteed to them—all based on a clearly unconstitutional theory about their citizenship status.

It could take years for the Supreme Court to fully consider and rule against this unconstitutional policy. In the meantime, there could be massive harm inflicted on U.S. citizens. A limited injunction would result in the precise evil the Clause is intended to prevent: it would divide similarly situated people into different classes, bestowing citizenship on babies whose parents have the resources and wherewithal to seek legal relief and withholding it from babies who are just as constitutionally entitled to birthright citizenship but whose parents are unable to pursue litigation. Such a result would fundamentally fracture the country. The Reconstruction Amendments were intended to prevent that sort of division from occurring again.

Even if the Court wishes to recognize limits on nationwide injunctions, it can and should affirm that nationwide relief is necessary here because of the serious constitutional violation, the need to provide complete relief to the plaintiffs, and the harm that would result from changing the long-standing status quo. The plaintiffs explain these reasons in detail in their Supreme Court filings, and multiple amicus filings by law professors provide further support. As one conservative law professor put it, “[n]ationwide lawbreaking by the federal government requires a nationwide remedy. And that’s especially true if the illegality affects the rights of large numbers of people, many of whom could not easily or quickly bring individual suits to challenge it. Justice delayed – in some cases indefinitely – is justice denied.” Multiple business trade associations also filed an amicus brief supporting the legality and importance of nationwide injunctions.

President Donald Trump’s executive order seeking to end birthright citizenship has reignited debates over the 14th Amendment and the meaning of citizenship in America. Legal experts Gabriel Chin of the University of California, Davis School of Law; Amanda Frost of the University of Virginia School of Law; Kurt Lash of the University of Richmond School of Law; and Ilan Wurman of the University of Minnesota Law School analyze the legal challenges surrounding birthright citizenship, explore the constitutional and historical arguments on all sides of this debate, and discuss its broader implications for immigration. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.

Video

Podcast

Participants

Gabriel “Jack” Chin is the Edward L. Barrett Jr. Chair of Law, Martin Luther King Jr. Professor of Law, and Director of Clinical Legal Education at the University of California, Davis School of Law. His scholarship has appeared in the Penn, UCLA, Cornell, and Harvard Civil Rights-Civil Liberties law reviews and the Yale, Duke and Georgetown law journals among others. The U.S. Supreme Court cited his work on collateral consequences of criminal conviction in Chaidez v. United States and in Padilla v. Kentucky. Justice Sotomayor cited his Penn Law Review article in her dissent in Utah v. Strieff.

Amanda Frost holds the David Lurton Massee, Jr. Professorship of Law and the John A. Ewald Jr. Research Professorship at the University of Virginia School of Law, where she also directs the Immigration, Migration, and Human Rights Program. She is the author of You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers and writes the “Academic Round-up” column for SCOTUSblog. Before entering academia, Frost spent five years as a staff attorney, worked for the Senate Judiciary Committee, and served as acting director of the Immigrant Justice Clinic at American University.

Kurt Lash is the E. Claiborne Robins Distinguished Professor of Law at the University of Richmond School of Law. Founder and director of the Richmond Program on the American Constitution, Lash has published a number of works on the subjects of constitutional history, theory and law, including The Fourteenth Amendment and the Privileges or Immunities of American Citizenship, The Lost History of the Ninth Amendment, and The American First Amendment in the Twenty-first Century: Cases and Materials (with William W. Van Alstyne). He is also the author of a two-volume collection titled “The Reconstruction Amendments: Essential Documents” and is currently working on A Troubled Birth of Freedom: The Struggle to Amend the Constitution in the Aftermath of the Civil War.

Ilan Wurman is the Julius E. Davis Professor of Law at University of Minnesota. He is the author of A Debt Against the Living: An Introduction to Originalism and The Second Founding: An Introduction to the Fourteenth Amendment. His next book, The Constitution of 1789: An Introduction, is also forthcoming.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

Additional Resources

Excerpt from interview: Kurt Lash explains that post-Civil War lawmakers sought to ensure Black citizenship through an allegiance-based rule, though defining it proved difficult.

Kurt Lash: The black codes were denying equal civil, and by civil, we mean citizen, equal citizen rights to black Americans in the Southern states. So that was their key purpose. And they wanted to. Whatever else happened, it had to be clear that there was no longer a color bar to becoming a United States citizen. What was not clear, however, was how to frame it in a way that would only bring on board those with requisite allegiance to the United States. And you’re not going to find anyone talking about a bright line rule there. Instead, when you go to the congressional debates, you’re going to find mayhem. They struggled and struggled with finding words and approaches that covered not only every international kind of situation with ambassadors, but also how to deal with the experience of Native American tribes. And once they got language that they thought would cover the Native American tribes, then they learned while they were debating that they were members of Native American tribes that had separated from the tribal government but yet were still considered to be foreign citizens. So they struggled mightily to come up with a rule that all the way to the very end they felt was the best they could do in order to create a rule that would require some type of requisite allegiance.

So we shouldn’t be surprised at all if it’s a difficult kind of clause to interpret. They found it difficult to craft, but they were very clear about what kind of rule it was that they were seeking. And that was an allegiance based rule. Now, in terms of the Confederacy, which I think is kind of a fun example, but I think Ilan has really put his finger on it, note there is an allegiance based reading. You are presumed to owe allegiance. Amanda, this kind of goes to your point about whether or not babies owe allegiance. Ilan’s presented wonderful work about the jurisprudence that birth within a country kind of raises a natural form of allegiance for protection. He has a wonderful analysis along those lines. Anyhow, all the Confederates were born citizens and they couldn’t get out of treason by claiming that they had somehow dissolved. They had successfully seceded from the Union. No, you hadn’t successfully succeeded from the Union. And so when they tried to pass, Thaddeus Stevens tried to pass legislation based on the idea that they had to prove their citizenship. Again, here’s John Bingham, my go to person for understanding the 14th amendment, quote, rebel treason and revolt does not make them a foreign nationality, nor put them or the states in which they reside beyond the jurisdiction of the United States States, nor absolve them from their allegiance to this government.

The allegiance rule. Again, very much informing what he’s doing. And of course, yeah, you are still Confederates, you’re born in the United States, you’re still citizens, you still can be subject to treason. Now, as for the existence of former slaves who had been illegally brought into the United States through the horrific practice of the international slave trade, Jack, I think your article’s outstanding. Was you and you and Bethany, who would. Who had produced that?

Excerpt from interview: Amanda Frost argues the 14th Amendment guarantees birthright citizenship to ensure equality and prevent government from denying rights based on parental status.

Amanda Frost: First of all, about half, even more than of our undocumented immigrant population entered legally and then overstayed. It’s quite possible under immigration law to overstay and then to adjust status and become legal again. My question is, if you happen to give birth in the month in which you’re out of status, which the immigration law recognizes can happen and allows you to get back in status, your child’s automatically not a citizen because you violated immigration laws at the moment the child’s born. Then the parent goes on to be legal, but the child is illegal. Or what about the fact that I am a birthright citizen with a passport, but I do have to follow immigration laws. For example, I can’t employ undocumented immigrants, something, by the way, that this administration does not enforce, even though it seems to be enforcing every other law. And also, I can’t enter outside of the port of entry or without showing my passport. So if I violate that law and enter my country in violation of law, do I now lack allegiance and lack citizenship. It’s nonsensical. And finally, I’ll go back to the original understanding, which was a couple of pieces here that I think are worth emphasizing.

One, as Jack so eloquently said, undocumented immigrants were not unknown in 1866. Congress was well aware of that problem with many different groups, not just formerly enslaved people, but also people who came in in violation of state laws that barred people from coming in with disease or who had been convicted of crimes or were impoverished. People came in in violation of the laws then, just as they do now. Congress knew it well. Congress didn’t include them. Also, tourism is not new, and temporary visitors are not new. Congress was well aware of them. The only group it mentioned accepting from this universal birthright citizenship rule that it was creating were the children of diplomats, Native Americans, and hostile armies. Why even mention diplomats if all temporary immigrants aren’t covered by definition? Diplomats are temporary. They’re not planning to stay. So why even bother carving that out? It just makes sense. And the fact, of course, that what Congress wanted to do, and here I’ll quote from Jacob Howard, he said this new law, this citizenship clause that I have proposed, which was adopted exactly as he proposed it, he said, I want to remove all doubt as to what persons are or are not citizens of the United States.

If he was here right now, he’d say, the last thing I want is to be debating this in the courts of America. He just saw what the Supreme Court did in Dred Scott. He certainly wouldn’t have trusted the executive. Several other senators said the same thing. They wanted a clear bright line rule so that we wouldn’t allow our executive branch and our courts to pick and choose who was an American based on somebody else’s view of who had allegiance to the United States. And the last point I’ll mention is the consequences of this would be devastating. 300,000 children under that executive order every year would be born, some of them stateless. All of them could be deported the day they’re born. All of them could be denied the rights and benefits of citizenship. It would put in question all of our citizenship, including anyone who has an ancestor who violated the law and give the government enormous control over which members of the population could remain in the US with the rights of citizenship to vote and hold office, and which could be deported or deprived of those rights. That is the last thing this Reconstruction Congress wanted when enacted the 14th Amendment to create equality for all born in the United States, which was the overarching goal of that amendment.

Ilan Wurman argues that under international law, birthright citizenship excluded children of temporary sojourners, emphasizing domicile over mere birth.

Ilan Wurman: And in a nutshell, a rule of international law provided that one sovereign did not exercise a complete municipal, domestic, legislative or judicial jurisdiction over the municipal rights and relations of dependent nations, right and their members. Now, this is important because this also explains other exceptions like ambassadors and armies. Why couldn’t we exercise jurisdiction over ambassadors, for example. Chief Justice Marshall said, we could if we wanted to. It’s our choice not to do that. But the point is, under international law, it would have been illegitimate to do that. So there was an international law exception to the exercise of a complete legislative or judicial jurisdiction.

Why does this matter? Because the traditional view of birthright citizenship that Professor Frost says is just well accepted and not a difficult question ignores a substantial amount of evidence that the drafters, the principal drafters of the citizenship clauses of the fourteenth Amendment and Civil Rights act thought that the children born of temporary sojourners would be excluded. Okay, the traditional views cannot explain that. So when I say who thought this, Lyman Trumbull, the chair of the Judiciary Committee in the Senate who introduced the Civil Rights Acts provision, wrote in a letter to Andrew Johnson, it would make citizens of children born to domiciled aliens.

Jacob Howard, Excuse me. William Fessenden, the chair of the Joint Committee on Reconstruction, suggested strongly that it wouldn’t include that it was in a slightly different context. James Wilson, the chair of the House Judiciary Committee, when introducing the Civil Rights Act system citizenship clause, said it would not include the children born of ambassadors or of temporary sojourners. Jacob John Bingham, the principal author of the rest of Section 1 in 1859, suggested the domicile was important. Two secretaries of state in the 1880s denied passports to persons born in the United States because they were born to parents who were temporarily sojourning.

And the court Wong Kim Ark emphasized time and again the domicile mattered. Maybe they were all wrong, but that’s a lot of people who really were in the know more than anybody else right to be wrong about this and the international law might provide an explanation, namely, under international law, it was generally held that a sovereign did not have complete legislative jurisdiction over all the municipal rights of temporary visitors, particularly related to capacity, personal status, marriage, citizenship. Okay, they could decline to exercise judicial jurisdiction in cases involving transient visitors. And another example is they were transient visitors, but were not subject to militia duty, but domiciled foreigners were. In this sense, they didn’t exercise complete jurisdiction. So, the last sentence. An international law framework of complete jurisdiction, of exceptions to a complete jurisdiction explains not only the traditional exceptions, not only native tribes, but all this evidence about domicile and how the domicile mattered that the traditional views cannot explain.

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