Birthright Citizenship

In January 2025, President Donald Trump issued an executive order denying birthright citizenship to children born to parents living temporarily in the United States or without legal status. The order appears to contradict the 14^th Amendment to the Constitution that refers to birthright citizenship. In mid-July, a federal court ruling in a class-action lawsuit issued a preliminary injunction that halted the executive order. The case is now likely to make its way to the U.S. Supreme Court. We asked Stanley Goldman, professor at the LMU Loyola Law School, for his thoughts on the matter. Goldman has taught constitutional law and criminal procedure, and he is the founder of the Center for the Study of Law &and Genocide. An alumnus of the LMU Loyola Law School, he is the author of “Left to the Mercy of a Rude Stream: The Bargain That Broke Adolf Hitler and Saved My Mother.” Goldan was interviewed by Editor Joseph Wakelee-Lynch.

At the center of the case of birthright citizenship is a portion of the 14th Amendment to the U.S. Constitution: “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.” That sentence has been plainly interpreted for decades. What is the basis of the Trump administration’s alternative interpretation?

I’m not at all certain what the interpretation is, other than that it doesn’t mean what it says it does. The [accepted interpretation] seems to be a pretty clear reading of it. I find it hard to fathom that there will be many votes on the Supreme Court for this. I’m disturbed by the fact that, I suspect, there will be some that are based on the argument that [the text] doesn’t mean what it says it does. Or that it only applied historically to that one period of time and wasn’t really intended to apply to anything other than, for example, former slaves. In other words, they’ll put a spin on it with a hint of what we call originalism — that it only means what it meant at the time and that it doesn’t mean the same thing today because things have changed. 

Do you see any ambiguity in the phrase “…subject to the jurisdiction thereof, …”?

No. I don’t personally see enough ambiguity to not treat it as it has been treated for a century and a half. I’m afraid some people might see that, but I don’t.

What about the case of a mother who is officially in the asylum process in the United States? If she has a child while awaiting the final decision of her status, does that child enjoy birthright citizenship?

My interpretation of this, and maybe I’m being stricter than I should be, is that birthright citizenship applies to those children as well. They’re born on American soil, so they are birthright citizens.

You mentioned your concern that some members of the court might accept the administration’s argument about birthright citizenship. But how would a justice who considers herself or himself an originalist justify interpreting the 14^th amendment in a way that alters what appears to be plain meaning of the amendment?

My fear, and it may be totally unjustified, is that I’ve seen the hints of an argument [based on] originalism: that we go back to the time when the words were written, and we look at what those words at the time were meant to apply to, and they can apply to nothing beyond that. I could see the possibility of some justices on the court concluding that at the time this provision was written it was only intended to apply to a certain group of people, and that that is not an issue any longer and that therefore the provision doesn’t apply today because they don’t fall within that group. 

One of my favorite comments from any U.S. Supreme Court case was by Oliver Wendell Holmes almost a hundred years ago. He said, “A word is not a crystal, transparent and unchanging. It is the skin of a living thought and may vary greatly in color and content according to the time and circumstances in which it is used.”

I would think the only way the amendment is going to be held not to mean what it says it means is, oddly, if the originalists adopt a legislative interpretation philosophy and say, “We’re only going to apply it uniquely to the circumstances that existed at the time. If there were similar circumstances existing today, namely slaves being born in the United States, we’d apply it to them. But we’re not dealing with that today.” It’s a legal hodgepodge that gets us to denying birthright citizenship. I’m afraid it may be a philosophy of politics more than it is a philosophy of law.

Read: Radical Change and Challenges to the Constitutional Order

If the case goes all the way to the Supreme Court, when would you expect that we’d have a ruling?

I think they’re going to wait a while, because the longer they wait to decide the more Trump may be able to do in the interim. So, they could uphold the Constitution, the reading of it, not give the president what I’d see from my perspective as dictatorial power, and yet allow the present administration’s policies to be enacted over a certain period of time. If you give a president a long time to exercise whatever authority they choose to exercise before the court intervenes, then the president could, in the example of birthright citizenship, follow his own designs for a lengthy period of time to either remove or threaten the removal of people and there’s nothing to restrain him. I’m not suggesting he’s doing it; I’m suggesting that the longer the courts wait to settle an issue like this, the more chance there is that a politician willing to use the full force of whatever power they may have, whether legal or not, could use it as terror to scare people into silence. 

Recently, legislation has been introduced in the Senate that would end birthright citizenship for some children born in the United States — those whose parents to not have legal status. That also would challenge the long-held interpretation of the 14^th amendment. But could such a change require a change in the wording of the amendment itself, or would it be resolved in the courts?

I think a change to the amendment can only take place through a constitutional process. On the other hand, the courts have for generations given more deference to rules when they are enacted by Congress than if they hadn’t been enacted by Congress. So, if you have the Congress acting and the president signing the bill, the courts would like to give it more deference, and they have said they will give it more deference. Now, when an act signed by the president is unconstitutional, it should be declared unconstitutional. But [there’s an argument based on the thinking] that “It’s been signed by the democratically elected branches of government, let’s give it the benefit of the doubt.” Members of the Supreme Court could theoretically say, “It’s not really our place to object when there is such support from the other two branches, unless it’s blatant. And we don’t find it blatant enough.” But even if you give it the benefit of the doubt, the language is so clear that there’s not an issue.