The Citizenship Clause of the 14th Amendment says that every person born or naturalized in the United States, and subject to its jurisdiction, is a citizen of the United States and of the state where they live. Ratified in 1868, that single sentence replaced a patchwork of state rules with a permanent federal standard and directly overturned the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which had held that descendants of enslaved people could never be citizens.1U.S. Congress. Constitution of the United States, Amendment XIV2Justia. Dred Scott v. Sandford, 60 U.S. 393 (1857) It remains the constitutional basis for birthright citizenship today, and it is the provision at the center of ongoing litigation over a 2025 executive order that tried to narrow its reach.
Who Becomes a Citizen at Birth
The rule is territorial. If you are born on American soil and subject to U.S. authority, you are a citizen. Your parents’ nationality, immigration status, or length of stay does not matter. Congress has written the same rule into federal law at 8 U.S.C. ยง 1401, which lists every category of person who is a citizen at birth, beginning with anyone born in the United States and subject to its jurisdiction.3Office of the Law Revision Counsel. 8 U.S.C. 1401 – Nationals and Citizens of United States at Birth
“The United States” for this purpose covers the fifty states and the District of Columbia. Federal law also treats Puerto Rico, Guam, the U.S. Virgin Islands, and (since 1986) the Northern Mariana Islands as part of the United States for citizenship, so children born in those territories are citizens by statute. Airspace above U.S. land and internal waters is generally included as well. Coastal waters are less settled: a 1988 presidential proclamation extended the territorial sea to twelve nautical miles, but the State Department has flagged a substantial legal question about whether birth in the territorial sea beyond internal waters actually counts as birth “in the United States” for citizenship, and cases there are referred for individual legal review.4U.S. Department of State Foreign Affairs Manual. 8 FAM 301.1 – Acquisition by Birth in the United States
What “Subject to the Jurisdiction” Means
Being born on U.S. soil is not quite enough. The clause adds a qualifier: the person must also be “subject to the jurisdiction” of the United States. That phrase excludes very few people. The Supreme Court settled its meaning in 1898 in United States v. Wong Kim Ark, holding that a child born in San Francisco to Chinese parents who were permanent residents was a citizen at birth. The Court said the Fourteenth Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory” and covers the children of resident noncitizens regardless of race.5Justia. United States v. Wong Kim Ark, 169 U.S. 649 (1898)
The recognized exceptions are narrow. Children of foreign diplomats stationed here do not receive birthright citizenship because their parents have diplomatic immunity and are not bound by U.S. law in the ordinary way. Children born to members of an invading military force during a hostile occupation are also excluded. The Court in Wong Kim Ark described these as exceptions “as old as the rule itself.”6U.S. Department of State Foreign Affairs Manual. 8 FAM 102.3 – Supreme Court Decisions Everyone else born in the United States meets the jurisdictional requirement, because they are subject to American civil and criminal law from the moment of birth.
Indigenous Peoples and the Later Fix
The jurisdictional language left a real gap for decades. After ratification, the Senate Judiciary Committee took the view that members of tribal nations were not “subject to the jurisdiction” of the United States because they owed allegiance to their own sovereign governments, which left most Indigenous people outside the clause’s reach. Congress closed that gap with the Indian Citizenship Act of 1924, and federal law now specifically provides that a person born in the United States to a member of an Indigenous tribe is a citizen at birth, and that this citizenship does not affect tribal property rights.3Office of the Law Revision Counsel. 8 U.S.C. 1401 – Nationals and Citizens of United States at Birth
Where the Clause Does Not Reach: American Samoa
Not every place under the American flag is covered. American Samoa is classified as an “outlying possession” rather than part of “the United States” under immigration law, and the Citizenship Clause does not apply there.7U.S. Department of State Foreign Affairs Manual. 8 FAM 308.2 – Acquisition by Birth in American Samoa and Swains Island People born in American Samoa are U.S. nationals but not U.S. citizens. They can live and work in the United States and hold U.S. passports (stamped with a nationality endorsement) and may apply for naturalization, but they cannot vote in federal elections or hold certain government positions reserved for citizens.
Litigation has tried to change this. In Fitisemanu v. United States, plaintiffs argued that the Fourteenth Amendment should automatically extend birthright citizenship to all U.S. territories. The Tenth Circuit disagreed, applying the framework of the early-1900s Insular Cases to hold that birthright citizenship is not a “fundamental” right that automatically applies to unincorporated territories, and it noted that American Samoa’s own elected leaders had expressed a preference against imposed citizenship on the ground that it could disrupt traditional land-ownership customs.8Justia. Fitisemanu v. United States The Supreme Court declined to hear the case in October 2022. For now, any extension of citizenship to American Samoa would have to come from Congress, not the Constitution.
Naturalized Citizens Under the Same Clause
The clause covers more than people born here. It also names anyone “naturalized in the United States,” giving them the same constitutional status as native-born citizens.1U.S. Congress. Constitution of the United States, Amendment XIV Putting both categories in the same sentence was a deliberate structural choice: it makes it difficult for any future government to create a second-class tier of citizens.
There is one legal distinction between naturalized and native-born citizens. Article II requires the President to be a “natural born Citizen,” which disqualifies anyone who acquired citizenship through naturalization.9Federal Election Commission. Advisory Opinion 2011-15 – Naturalized Citizen as Presidential Candidate Beyond that single restriction, naturalized citizens vote, hold other federal offices, serve on juries, and exercise every constitutional right on identical terms.
Why Citizenship Cannot Be Stripped Against Your Will
One of the clause’s most powerful features is its permanence. In Afroyim v. Rusk (1967), a naturalized citizen who had voted in an Israeli election challenged the State Department’s refusal to renew his passport. The government argued he had forfeited his citizenship under a statute that stripped citizenship from anyone who voted in a foreign election. The Supreme Court held that the Fourteenth Amendment “was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship.”10Justia. Afroyim v. Rusk, 387 U.S. 253 (1967)
The Court refined the rule in Vance v. Terrazas (1980), holding that the government must prove not only that a citizen voluntarily performed an act that could trigger loss of citizenship, such as swearing allegiance to a foreign government, but also that the person specifically intended to give up U.S. citizenship by doing so.11Justia. Vance v. Terrazas, 444 U.S. 252 (1980) The standard of proof is preponderance of the evidence, but the intent requirement makes involuntary loss extremely rare. Voting abroad, holding a foreign passport, or serving in a low-ranking role in a foreign military does not automatically cost you your citizenship unless the government can show you meant it as a renunciation.
The 2025 Executive Order
In January 2025, Executive Order 14160 directed federal agencies to stop issuing citizenship documents for children born in the United States if the mother was unlawfully present and the father was not a citizen or lawful permanent resident, or if the mother was on a temporary visa and the father was not a citizen or permanent resident.12Federal Register. Executive Order 14160 – Protecting the Meaning and Value of American Citizenship The order was scheduled to apply to children born after February 19, 2025.
Federal courts moved quickly and uniformly against it. Judges in New Hampshire, Washington, Maryland, and Massachusetts each issued preliminary injunctions blocking enforcement. On appeal, the First Circuit upheld the block, writing that “the lessons of history give us every reason to be wary of now blessing this most recent effort to break with our established tradition of recognizing birthright citizenship.” As of early 2026, the order remains enjoined nationwide and has never taken effect. The constitutional argument against it is the one the Supreme Court settled in Wong Kim Ark more than a century ago: if you are born here and subject to U.S. law, you are a citizen, whoever your parents are.