A 3-part set of posts on Birthright Citizenship and the case before the U.S. Supreme Court - PART II - Legal and Cultural Reasons NOT to Have It

First, Are We All Talking About the Same Thing?

In Part I, I focused on two sets of data - a) maps showing what countries use birthright citizenship and what countries focus on the citizenship of the parents in some form; and b) the legal language of the 14th Amendment and legal precedents based on that amendment that have driven citizenship status for the past 125+ years of U.S. history.

This time I'm going to focus on something different - video clips showing different interpretations around the world of citizenship.

Part II - Arguments Why The President Should Be Able to Limit Birthright Citizenship:

Like yesterday, I'm going to focus on the 5 most common arguments why the President (or potentially Congress) should have the flexibility to limit birthright citizenship (despite what it says in the 14th Amendment). In some cases they will be the exact opposite of arguments made in yesterday's post, while other arguments will be different issues or legal precedents brought up to justify a change to the status quo. Also like in Part One I know each of these are topics that could easily be expanded - my goal is to give you an overview and/or data backing it up, then links to explore more for yourself:

Argument #1 - Restricting Birthright Citizenship is NOT Bias or Discrimination Against Immigrants - We Already Have a Process for Legal Immigrants to Become Citizens: Historically in most of the world, citizenship has always entailed both rights and responsibilities - so becoming a citizen should either require a commitment to the country (like prior generational citizenship) OR completing a screening process (as the U.S. historically did at Ellis or Angel Island) and application to obtain citizenship.

• President Trump’s executive order confirmed that the Fourteenth Amendment “rightfully repudiated” the Dred Scott decision, while asserting that the 14th Amendment has “always excluded from birthright citizenship persons who were born in the United States but not subject to the jurisdiction thereof.” The order outlined two categories of individuals “born in the United States and not subject to the jurisdiction thereof,” that the administration believes should not be U.S. citizens by birth: a child born after Feb 20, 2026 to an undocumented mother and a father who is not a citizen or lawful permanent resident OR a mother who is a temporary visitor and a father who is not a citizen or lawful permanent resident. The order would have made ancestry a criteria for citizenship – it requires children born on U.S. soil to have at least one parent with U.S. citizenship or a green card to be born a U.S. citizen. The order directed government agencies in the United States to stop issuing documents recognizing babies falling under these categories as U.S. citizens.

• From the U.S. Citizenship and Immigration Services: "The United States has a long history of welcoming immigrants from all parts of the world. During the last decade, USCIS welcomed more than 7.9 million naturalized citizens into the fabric of our nation. Deciding to become a U.S. citizen is an important milestone in an immigrant’s life. Candidates for citizenship must show they are committed to the unifying principles that bind us as Americans. For that commitment, in return, they will enjoy the rights and privileges fundamental to U.S. citizenship." In general, an alien must spend at least 5 years as a lawful permanent resident to be eligible for naturalization while a spouse of a U.S. citizen must spend at least 3 years as a lawful permanent resident. Applicants must also demonstrate an ability to read, write, and speak words in ordinary usage in the English language and have a knowledge and understanding of U.S. history and government (the pass rate is close to 95%), and pay an application fee (which can be waived if they are unable to pay the filing fees.

Argument #2 - Who Has "Jurisdiction" Over Migrants and Tourists - their Home Country or the Country They Currently Reside In?: The question of what "subject to the jurisdiction of" really means legally in the 14th Amendment - are visitors like tourists and illegal immigrants under the jurisdiction of the U.S. or their home country?

• According to Law and Liberty, "Policy considerations matter—not to displace principle, but to reveal the value of the Constitution’s textual rejection of territorial jurisdiction. One such consideration is that citizenship is different from equal protection under the laws. Citizenship is a matter of loyalty, not just obedience and protection, and no nation can survive long if it dilutes the commitments underlying citizenship. Temporary foreign visitors have primary allegiances to other societies; foreigners who come here unlawfully begin their stay by disobeying our laws. Such persons and their children are within the nation’s jurisdiction, defined by place and residence, and therefore, both in justice and law, have rights within our legal system. But neither justice nor law requires that they be categorically assured citizenship. As recognized by the 14th Amendment, citizenship should rest on the nation’s core jurisdiction over full members of society, whose allegiance is primarily to our society and our laws, not those of other nations."

• According to the Heritage Foundation, it is wrong to claim that the children born of parents temporarily in the country as students or tourists are automatically U.S. citizens: They do not meet the 14th Amendment’s jurisdictional allegiance obligations, because they are subject to the political jurisdiction (and allegiance) of the country of their parents. The same applies to the children of illegal aliens because children born in the United States to foreign citizens are citizens of their parents’ home country. The State Department (part of the Executive Branch) has erroneously interpreted that to provide passports to anyone born in the United States, regardless of whether their parents are here illegally. Accordingly, the executive branch also has the right to change that "interpretation", not because it is required by federal law or the Constitution.

Argument #3 - Other Exceptions to "birthright citizenship" have already been made by Congress and Supreme Court rulings: Examples like the children of foreign diplomats and Native Americans demonstrate that birthright citizenship has never been 100% applicable - the real question is whether changing conditions (like the rise of illegal immigration, which was almost unheard of in the late 19th century) can be addressed in the 21st century.

• The Wall Street Journal ran an article in Dec 2025 that uncovered a market that Sino business titans abroad are using to father veritable tribes of children born in this country via surrogate mothers in the United States. One such father, Chinese national Xu Bo, is described as a billionaire “maker of fantasy videogames” who “is known in China as a vocal critic of feminism”. Xu’s company has apparently claimed “he has more than 100 children born through surrogacy”, though Xu himself reportedly told a state court in California (where he appeared via video from China) that he simply “hoped to have 20 or so U.S.-born children through surrogacy — boys, because they’re superior to girls — to one day take over his business”. “Several” of Xu’s kids are being looked after “by nannies in nearby Irvine as they awaited paperwork to travel to China”, though the proud paterfamilias told the court he’d been too busy at work to meet them yet. The Journal continues: “Another wealthy Chinese executive, Wang Huiwu, hired U.S. models and others as egg donors to have 10 girls, with the aim of one day marrying them off to powerful men, according to people close to the executive’s education company.”

  The market has grown so sophisticated, experts say, that at times Chinese parents have had U.S.-born children without stepping foot in the country. A thriving mini-industry of American surrogacy agencies, law firms, clinics, delivery agencies and nanny services — even to pick up the newborns from hospitals — has risen to accommodate the demand, permitting parents to ship their genetic material abroad and get a baby delivered back, at a cost of up to $200,000 per child.

• From a former immigration judge - "Constitutional amendments are supposed to be evergreen, applying in the same way today as they did when their authors first penned them, as refined by how the states viewed them at the time of ratification. Likely few involved in the ratification of the 14th Amendment in July 1868 ever imagined that millions of aliens would pour illegally into this country and give birth here, any more than they could have foreseen an industry fueled by Chinese elites seeking to have U.S. citizen children without stepping foot in this country. I don’t believe in (and largely fear) the concept of a “living Constitution” that’s reassessed and rewritten by courts every few years, but I also think the drafters of the 14th Amendment understood that not every future peg would fit neatly in the citizenship slot they had created. The Elk case showed that 14th Amendment citizenship wasn’t as expansive as one former member of the Winnebago Tribe then living in Omaha believed it should be, but the Wong Kim Ark case revealed it was more expansive than the San Francisco Customs director thought it was. That’s not “living Constitution”; it’s applying laws to facts, which judges and other federal officials do thousands of times every day."

Argument #4 - There is a reason why very few countries today have birthright citizenship: It is interesting that many of the same people and groups who believe the rest of the world "does it better" in areas like health care, economic systems, and social justice can look at 180 countries around the world restricting the right to citizenship and not ask "why".

• From Time Magazine - "Across the world, birthright citizenship is not considered the norm. Canada and Mexico have unrestricted birthright citizenship, as do a majority of Latin American countries. But across Asia, Europe, and Africa, almost none do—at least without similar restrictions to what Trump is proposing. Most countries with restricted birthright citizenship have conditions that broadly depend on either the legal residency status of at least one of the child’s parents, the residency of the child, or both. In Australia, for example, a child born there can become a citizen either if at least one parent is a citizen or permanent resident of Australia, or if the child resides in Australia for a decade following their birth. Where countries don’t follow jus soli, they generally rely on jus sanguinis, meaning “right of blood.” Countries like Singapore and China require at least one parent to be a citizen in order for their child to become one. Whether or not the child is born in the country doesn’t matter—citizenship still follows their parents’ nationality. In recent years, several countries—including Pakistan, the Dominican Republic, and Ireland—have revised their citizenship laws to restrict or revoke birthright citizenship."

• From the Loch Johnson Society at the U. of Georgia - "Two Latin principles—jus soli (right of soil) and jus sanguinis (right of blood)—have long governed who qualifies as a citizen. As nations confront global migration, shifting demographics, and new forms of social and political identity, the tension between these principles intensifies. Jus sanguinis originates from Roman law, which became the basis for the development of legal systems in continental Europe and later influenced parts of East Asia and the Middle East. This principle, emphasizing lineage, shaped citizenship in countries where cultural and ethnic continuity were seen as vital. Additionally, defenders of jus sanguinis emphasize cultural continuity. A Lebanese expatriate in France might pass Lebanese nationality to children never having seen Beirut, maintaining a ethnic link across generations. Yet this approach limits those without ancestral ties. Italy exemplifies this tension: children born to foreign parents in Italy must wait until they turn eighteen or endure a lengthy and complex process to gain citizenship even if they speak fluent Italian and hold steady employment. In Japan, Korean communities who settled before World War II still struggle with legal and social hurdles that keep perpetually forever 'foreign'.”

Argument #5 - Just because a legal precedent has been established for a long period of time doesn't mean it can not (or perhaps should not) be overturned in a different time period: Many supporters of birthright citizenship claim that older precedents should not be able to be overturned because they are "settled law" - ignoring Supreme Court decisions like Dred Scott or Plessy vs Ferguson that were overturned decades after they were made.

• From the LA Times - "Despite stare decisis — which roughly means “to stand by that which is decided” — the reality is that the Supreme Court has reversed itself well over 100 times. In its famous Lochner decision in 1905, for instance, the court held that a law setting maximum daily and weekly working hours was unconstitutional; it rightly overruled itself 32 years later. In Schenck vs. U.S. in 1919, the court agreed that urging people to resist the draft could be a crime — but later effectively overturned such restrictions on free speech. As the court has acknowledged, there’s an inherent tension between the deference owed to past rulings and the occasional necessity to undo bad decisions. Stare decisis is flexible; it’s not, as the court once put it, an 'inexorable command.'"

• The primary legal precedent pointed to, United States v. Wong Kim Ark, is not a parallel situation to what President Trump's executive order addresses. In the earlier precedent, the Supreme Court concluded that a man born in San Francisco to Chinese parents was a citizen. BUT Professor Ilan Wurman (in his brief to the Court) notes Mr. Wong’s parents were legal permanent residents — or “domiciled” — in the United States. (In its filing, the Trump administration points out that their status is cited more than 20 times in the landmark opinion.) Professor Wurman said the ruling did not directly address whether the newborn children of undocumented immigrants are citizens, making it an open question for the court.

Again, here is my plan for this series of 3 posts:

• Part I - civic and historical reasons why we have birthright citizenship and should keep it;

• Part II, civic and cultural reasons why we should not have birthright citizenship in its present form; and

• Part III, classroom resources and lessons related to the topic.

Again, my intention is not to get into the politics of birthright citizenship arguments (though I'm sure I will repeat or link some of their points today and tomorrow). As I noted in the introduction, we say that part of our job as social studies teachers is to help students understand the facts and the arguments of both sides, and then make their own decision. It is difficult to do that, however, if only one side is available to present (and if you don't believe that, just Google search "birthright citizenship" and click the "News" tab). So part of MY job is to make sure you have some ideas and resources how to present both sides - up to YOU what you do with it . . .

Links for Part II - Why NOT Increase the Minimum Wage?

Like I said at the end of Part I, I'm not going to get into classroom resources until Part III - these are just links to back up where the information came from for the arguments listed above. The only thing I will note here is that I will include in Part III more educational information about the current citizenship process for legal immigrants and compare/contrast it to the process used by (as an example) the European Union. Not saying either is right or wrong - but part of the reason I wanted to present this topic ("birthright citizenship") was to compare/contrast - like the differences between birthright citizenship and naturalization, or why most countries in the world don't grant citizenship to everyone born in their countries. I often told middle school students it would be interesting (or sad) to see what would happen if everyone in the U.S. had to pass the same civics test the naturalized citizens do! (like this old "JayWalking" clip from the Tonight Show with Jay Leno) . . .

Sources for the Videos Above (in the order above):

"Why the US has birthright citizenship", VOX.com, Mar 2025, https://www.youtube.com/watch?v=OBFX4EuAWHc

"Hardest Countries to Become a Citizen, Here’s Why", The Infographics Show, Nov 2025, https://www.youtube.com/watch?v=sL-X2jNFbVE

"Trump says birthright citizenship is over. The Supreme Court will decide", National Public Radio (NPR), Mar 2026, https://www.youtube.com/watch?v=4QczkEbU8jA

"JayWalking: Citizenship Test", Jay Leno greatest hits from the Tonight Show, episode from Sep 2011, https://www.youtube.com/watch?v=uKeXJd1hzcQ

Sources for the Arguments Above:

"After 150 Years Courts Should Clearly and Finally Define the Question of Birthright Citizenship", Law Professor Jonathan Turley Blog, Nov 2018, https://jonathanturley.org/2018/11/02/after-150-years-courts-should-clearly-and-finally-define-the-question-of-birthright-citizenship/

"As birthright citizenship goes to Supreme Court, here's how Americans feel about it", All Things Considered from National Public Radio (NPR), Mar 2026, https://www.npr.org/2026/03/30/nx-s1-5760983/birthright-citizenship-public-opinion-supreme-court-arguments

"Birth tourism industry thrives in Miami as Supreme Court showdown gets underway", New York Post, Apr 2026, https://nypost.com/2026/04/01/media/birth-tourism-industry-thrives-in-miami-as-supreme-court-showdown-gets-underway/

"Birthright citizenship: 20 questions for the solicitor general", SCOTUSBlog, Mar 2026, https://www.scotusblog.com/2026/03/birthright-citizenship-20-questions-for-the-solicitor-general/

"Birthright citizenship: hard questions – and the best answers – for Trump’s challengers", SCOTUSBlog, Mar 2026, https://www.scotusblog.com/2026/03/birthright-citizenship-hard-questions-and-the-best-answers-for-trumps-challengers/

"The Birthright Citizenship Clause Means Exactly What It Says: The Textual and Historical Implausibility of Alternative Interpretations Offered by the Trump Administration and Conservative Commentators such as Randy Barnett, Ilan Wurman, Chuck Cooper and Pete Patterson", Verdict: Legal Analysis and Commentary from Justia, Mar 2025, https://verdict.justia.com/2025/03/10/the-birthright-citizenship-clause-means-exactly-what-it-says

"Business Rundown: Inside the Birth Tourism Business" (podcast), Fox News, Apr 2026, https://podcasts.apple.com/us/podcast/business-rundown-inside-the-birth-tourism-business/id1303660358?i=1000759107393

"The Forgotten Meaning of the Citizenship Clause", Law and Liberty, Feb 2025, https://lawliberty.org/the-forgotten-meaning-of-the-citizenship-clause/

"How Does Birthright Citizenship in the U.S. Compare to the Rest of the World?", Time Magazine, Jan 2025, https://time.com/7209363/birthright-citizenship-compare-us-world-restrictions-trump-jus-soli-sanguinis/

"Is Trump's citizenship order doomed? 6 takeaways from birthright debate", USA Today, Apr 2026, https://www.usatoday.com/story/news/politics/2026/04/01/supreme-court-trump-birthright-citizenship-takeaways/89421817007/

"The Nonsense Case Against Birthright Citizenship - Meet the conservative legal minds telling the Supreme Court to side with Trump", Mother Jones, Mar 2026, https://www.motherjones.com/politics/2026/03/birthright-citizenship-ilan-wurman-history-amicus-brief/

"Some critics of birthright citizenship say it's a fraud issue. What does that mean?", All Things Considered from National Public Radio (NPR), Mar 2026, https://www.npr.org/2026/03/29/nx-s1-5761340/birth-tourism-citizenship-supreme-court-case

"There Is No Property-Rights Case for Birthright Citizenship", Mises Institute, Apr 2026, https://mises.org/mises-wire/there-no-property-rights-case-birthright-citizenship

"Trump’s Birthright Citizenship Order at Supreme Court Splits Conservative Scholars", New York Times, Mar 2026, https://www.nytimes.com/2026/03/30/us/politics/supreme-court-trump-birthright-conservatives.html

"U.S. public is split on birthright citizenship for people whose parents immigrated illegally", Pew Research Center, Jun 2025, https://www.pewresearch.org/short-reads/2025/06/10/us-public-is-split-on-birthright-citizenship-for-people-whose-parents-immigrated-illegally/

"USA Happy Baby, birth tourism and a blockbuster Supreme Court case", USA Today, Mar 2026, https://www.usatoday.com/story/news/politics/2026/03/29/birth-tourism-and-birthright-citizenship-supreme-court/89316280007/

"Why Birthright Citizenship Is Rare In Europe", Mises Institute, Feb 2019, https://mises.org/mises-wire/why-birthright-citizenship-rare-europe