The Assault on Birthright Citizenship: A Dangerous Misreading of History and the 14th Amendment

Introduction and Historical Context

The 14th Amendment to the United States Constitution, ratified in 1868, stands as one of the most profound statements of American ideals. Its Citizenship Clause declares: “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.” For over 150 years, this clause has been understood to guarantee birthright citizenship—the principle that anyone born on American soil is automatically a citizen, with narrow exceptions for children of diplomats and enemy combatants. This interpretation has been a cornerstone of American identity, embodying the nation’s commitment to inclusion and equality.

Recently, however, this longstanding understanding has come under attack. The Trump administration, through legal briefs and executive orders, has argued that the “original meaning” of the 14th Amendment does not extend birthright citizenship to children of temporary visitors or undocumented immigrants. This interpretation seeks to fundamentally alter who is considered American, drawing a line between those born to citizens or lawful permanent residents and those born to individuals present unlawfully or temporarily. The Supreme Court is set to hear arguments on this matter in the spring, making it one of the most significant constitutional debates of our time.

The Legal and Historical Evidence

The Trump administration’s case rests on the claim that the framers of the 14th Amendment never intended to grant citizenship to children of non-citizens. To support this, they point to historical context and legal doctrines of the era. However, a groundbreaking study soon to be published in The Georgetown Law Journal Online challenges this assertion. Conducted by University of Virginia law professor Amanda Frost and law student Emily Eason, the research examines the backgrounds of the 584 members of Congress who served from 1865 to 1871—the period surrounding the ratification of the 14th Amendment.

The study reveals that more than a dozen of these legislators might not have qualified as citizens under the Trump administration’s narrow interpretation. For instance, Representative William Prosser of Tennessee, who served from 1869 to 1871, was born to immigrant parents from Wales. There is no record that they filed a declaration of intent to become citizens before his birth in 1834; his father did so only in 1874, at age 64. Under the Trump standard, Prosser might not have been considered a citizen at birth, yet no one challenged his qualifications to serve in Congress.

This absence of challenges is particularly telling. The Constitution requires members of the House to have been citizens for at least seven years and senators for at least nine, and each chamber is the judge of its members’ qualifications. Between 1865 and 1871, the qualifications of 18 senators were contested on various grounds, yet there was only one challenge related to citizenship—the case of Hiram Rhodes Revels, the first Black man to serve in Congress. Democratic senators argued in 1870 that Revels had not been a citizen for the required nine years because the 14th Amendment had overturned the Dred Scott decision only two years prior. This argument failed, and notably, no one challenged other members on the grounds that their parents were not citizens or had not filed declarations of intent.

Professor Frost aptly describes this lack of challenges as the “constitutional equivalent of the dog that did not bark.” If the original understanding of the 14th Amendment aligned with the Trump administration’s view, one would expect contemporary lawmakers and citizens to have raised objections about the citizenship status of these legislators. The silence speaks volumes.

Opinion: A Threat to Constitutional Integrity and American Values

The Trump administration’s attempt to narrow the scope of the 14th Amendment is not just a legal misstep; it is a profound threat to the very fabric of American democracy. The amendment was born out of the ashes of the Civil War, designed to ensure that all persons—regardless of race or background—were granted equal protection under the law. Its Citizenship Clause was specifically intended to overturn the infamous Dred Scott decision, which denied citizenship to African Americans. To now argue that the clause excludes children of non-citizens is to ignore both its historical purpose and its transformative impact on American society.

This reinterpretation is particularly dangerous because it seeks to weaponize “originalism”—a judicial philosophy that claims to interpret the Constitution based on its original public meaning—against the inclusive values the amendment embodies. Originalism, when applied responsibly, can provide valuable insights into constitutional interpretation. But when wielded selectively to advance partisan agendas, it becomes a tool for eroding rights rather than protecting them. The Frost-Eason study demonstrates that the original public meaning of the 14th Amendment was likely far more inclusive than the Trump administration admits. The absence of contemporary challenges to legislators like Prosser suggests that birthright citizenship was widely accepted, even for those born to immigrant parents who had not yet naturalized.

Moreover, this effort to deny birthright citizenship is a direct assault on the principle of equality. It creates a two-tiered system of citizenship, where some children are deemed “American” from birth while others are relegated to a permanent underclass. This contradicts the very essence of the 14th Amendment, which was meant to eliminate such hierarchies. It also ignores the practical realities of immigration and integration. Many immigrants come to the United States seeking a better life, and their children often become pillars of their communities. Denying these children citizenship based on their parents’ status is not only unjust but also counterproductive to the nation’s social and economic interests.

The potential consequences of this reinterpretation are staggering. It could render millions of individuals stateless, strip them of constitutional protections, and create a bureaucratic nightmare for determining citizenship. It would also set a dangerous precedent for future administrations to redefine other constitutional rights based on contested historical claims. The 14th Amendment is a living testament to America’s capacity for growth and inclusion. To distort its meaning for short-term political gain is to betray the sacrifices of those who fought for its ratification and the generations who have benefited from its protections.

Conclusion: Upholding the Spirit of the 14th Amendment

As the Supreme Court prepares to hear arguments on this critical issue, it must recognize the profound stakes involved. The 14th Amendment is more than a legal text; it is a promise of equality and belonging for all who call America home. The Frost-Eason study provides compelling evidence that the original understanding of the Citizenship Clause was broad and inclusive, reflecting the amendment’s transformative purpose. The Trump administration’s narrow interpretation is not only historically inaccurate but also morally indefensible.

We must fiercely defend birthright citizenship as a cornerstone of American democracy. It embodies the idea that anyone, regardless of their origins, can become a full participant in the American experiment. To abandon this principle is to turn our back on the very values that make this nation great. The Supreme Court has a duty to reject this dangerous reinterpretation and affirm that the 14th Amendment means what it says: all persons born in the United States are citizens, and no political agenda can change that.