In January 2025, President Trump signed an executive order titled Protecting the Meaning and Value of American Citizenship. It states that children born in the United States after the order’s effective date will not be recognized as citizens if neither parent is a U.S. citizen or lawful permanent resident. If implemented, the order would deny those children passports, Social Security numbers, and other forms of legal identity.
Federal courts have temporarily blocked the order. However, the legal challenges are ongoing, and the question of who constitutes a citizen is once again before the courts.
For some, that question seemed settled more than a century ago. In 1898, the U.S. Supreme Court ruled in United States v. Wong Kim Ark that nearly everyone born on American soil is a citizen, regardless of their parents’ status. Wong, who was born in San Francisco to Chinese immigrant parents, had been denied reentry after visiting family abroad. He sued and won. That ruling has stood for more than 125 years.
But precedent is not the same as protection.
Martha S. Jones, a legal historian and the Society of Black Alumni Presidential Professor at the SNF Agora Institute, warns that birthright citizenship has never been immune to political contest or state overreach. “Even for the children born of the despised,” she says, “Whether Black Americans in the 19th century or immigrants today, the 14th Amendment guarantees that they stand equal before the Constitution.”
That guarantee was hard-won. After the Civil War, Black Americans did not wait for permission to take action. They claimed citizenship through protest, legal advocacy, and organizing. “They developed and promoted their claim through the Colored Convention Movement,” Jones said. “They were birthright citizens before the law said so.”
In 1868, Congress proposed the 14th Amendment, and the states ratified it. Its promise was clear: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” It was meant to be simple. It was intended to be permanent.
Yet the historical record shows how easily that line has been crossed. In the early 20th century, American women lost their citizenship if they married foreign nationals. During the Great Depression, thousands of Mexican American citizens were deported in so-called “repatriation” drives. In World War II, Japanese American citizens were detained in internment camps. In each case, the government disregarded rights that birth alone should have secured.
Today’s executive order follows that pattern, Jones says. Since the 1980s, a growing group of scholars and officials has argued that the 14th Amendment does not apply to the children of non-permanent residents. They claim that the phrase “subject to the jurisdiction thereof” creates a constitutional loophole. Jones rejects this view. She says it distorts the amendment’s history and downplays the many moments when the government has failed to uphold its promise.
In response to the order, Jones and Kate Masur, a professor of history at Northwestern University, filed an amicus brief with the U.S. Supreme Court. Their brief was the only one to center on the role of Black activism in shaping the 14th Amendment’s birthright clause. Their goal was not only to challenge the order but also to examine the history showing that birthright citizenship is not a bureaucratic rule but a right claimed by people who refused to be written out of the nation’s story.
Still, Jones cautions against assuming this fight has already been won. “Some of my colleagues believe this is a settled matter. They think Wong Kim Ark ends the debate. I disagree,” she says. “This is not just about law. It’s about power. And we’ve seen how power can disregard even the clearest constitutional guarantees.”
“Birthright was meant to take citizenship out of politics and beyond the reach of prejudice,” Jones says. “But we are in a moment when even that promise feels uncertain.”
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This story is based on conversations with legal historian Martha S. Jones, a professor at the SNF Agora Institute at Johns Hopkins University. Her scholarship traces how birthright citizenship was shaped by the demands of Black Americans and how it remains contested today.
For more, see her book Birthright Citizens: A History of Race and Rights in Antebellum America and her essay “Citizenship” in The 1619 Project: A New Origin Story.
