A court has just affirmed the right of birthright citizenship, adding to an unbroken record of court decisions before and since the 14th amendment went into effect in 1868.

On October 3 the First Circuit Court of Appeals ruled sharply against Trump’s executive order of January 20 banning birthright citizenship. The original is Doe v. Trump, filed on January 20 in Massachusetts.  The government’s position was that persons born in the U.S. to certain foreign-born non-citizens were not granted automatic citizenship per the 14^th Amendment which became part of the Constitution in 1868:

The clause: “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.”  Every argument to deny citizenship to certain persons born in the U.S. has been based on the idea that the 14^th Amendment was not intended (or was vague about) whether it applied to children born to persons who are not permanent legal residents or citizens.

The Appeals Court’s decision breaks down as follows:

First, to set the historical stage for the writing of the constitution, the court noted that British law of jus soli (“right of the soil”) had for centuries identified persons born on British soil as citizens. This right was granted automatically to anyone born on British soil except for children of ambassadors and children of an invading force, regardless of the intent of the parents or other circumstance. These exceptions were not “subject to the jurisdiction” of the U.S. government. The opposite of jus soli is jus sanguinis (“citizenship by blood”) which has never been endorsed by American law and the courts.

Second, the government was completely wrong in arguing that children of foreign persons, and their parents if here without authorization, were not “subject to the jurisdiction” of the U.S. government. In The Exchange v. M’Faddon (1812), the Supreme Court confirmed that all persons and property in the U.S. are subject to American law (i.e. subject to the jurisdiction) with the limited exception granted to expressly designated foreign persons and property.

Third, the government vastly overreached in citing Elk v. Wilkins (1884).  This case involved whether the “subject to jurisdiction” exception applied to an indigenous person. Since Indian tribes were treated as distinct nations under treaties and federal law at the time, their members were not considered subject to the same jurisdiction as other residents.

The ruling left open the possibility for Elk to become a citizen through naturalization, which later became feasible with the Indian Citizenship Act of 1924, granting citizenship to all Native Americans born in the U.S.

Fourth, the government mischievously mis-interpreted United States v. Wong Kim Ark (1898). Wong Kim Ark was born in San Francisco in 1873 to Chinese immigrant parents who were lawful permanent residents but ineligible for naturalization under the Chinese Exclusion Acts.   The court cited diplomats and some indigenous persons as being outside the jurisdiction of the country, reaching back to British law to affirm jus soli.  Advocates for limiting birthright citizenship attempt to make their case by saying that Ark does not apply to children born of authorized persons (Ark’s parents were authorized) or born of persons with allegiances to another government. These argument were behind a failed effort (in a 2009 bill) to “clarify” Ark and the 14^th Amendment.

In Hintopoulos v. Shaughnessy (1952) the second circuit court of appeals ruled that a child born of Greek parents who were temporarily in the U.S. was an American citizen, confirming the American court decisions and British precedent.  The Supreme Court declined to take up the case.  Since then there has been no substantive review of birthright citizenship until the October 3, 2025 decision by the first circuit court of appeals.