The Fourteenth Amendment to the US Constitution sets the requirements for citizenship: “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.”
There isn’t a lot of room for interpretative ambiguity there. For well over a century and a half, the “birth” part of this was universally understood to mean exactly what it sounded like. Almost everyone born in the United States is a citizen, regardless of the citizenship status of their parents. The only exception pertains to rare cases, such as the children of foreign diplomats, who are immune from US laws.
Nevertheless, on the first day of his second term, Donald Trump signed an executive order absurdly attempting to reinterpret the Constitution’s guarantee of birthright citizenship out of existence. The aim was to deny citizenship to certain Americans purely because of immigration violations committed by their parents. At the time, pretty much everyone expected that the courts would immediately overturn this daylight raid against the meaning of the Fourteenth Amendment. But in the end, it didn’t quite work out that way.
Twenty-two states challenged the order, and judges in several of those states issued nationwide injunctions to block it. But last week, the Supreme Court ruled in favour of the Trump administration. They declined — for now — to rule on the core constitutional issue. Instead, they ruled on narrow technical grounds, invalidating the longstanding practice of federal judges issuing injunctions that apply to the whole country rather than only ones limited to their districts.
The Court allowed 30 days for further challenges to proceed, but after that, if nothing changes, Trump’s executive order could go into effect in the 28 states that haven’t challenged the order. That means that some babies born in the US will become entirely stateless. While some countries will grant citizenship to children of citizens born abroad, plenty will not.
Those who seek to minimise the enormity of the Trump administration’s assault on liberal democratic principles often point out that birthright citizenship is rare globally. That’s true enough. It’s far from unique to the United States — about 30 nations have it, including the rest of North America and nearly all of South America. But it’s not the global norm. Then again, neither is the unusually robust protection of free speech and political dissent under the First Amendment.
Just as there are countries without birthright citizenship which nonetheless wouldn’t be classed as extreme ethnostates, there are plenty of nations that have laws against hate speech and blasphemy that haven’t devolved into 1984-style totalitarianism. Still, it would be a serious mistake in either case to assume that nothing important is at stake here. Whether the US continues to honour these protections matters profoundly.
The birthright citizenship clause was born in the aftermath of the Civil War. Just nine years before Congress passed the amendment, the Supreme Court had ruled in the Dred Scott decision that slaves weren’t US citizens, and didn’t become citizens when they escaped to free states. And as morally repulsive as that ruling was, it’s hard to argue that it didn’t conform to the intentions of the Constitution’s authors, who infamously counted each slave as three-fifths of a person when apportioning Congressional districts.
By the war’s end, every freed slave had been born to parents who weren’t citizens. Nevertheless, they themselves all were when the Fourteenth Amendment went into effect in 1868. The principle was very simple and clear: everyone born on American soil and subject to its laws would be an American citizen, full stop.
“This is one of the most precious aspects of American democracy.”
This was a crucial factor in shaping a unique sense of national identity in America, distinct from the kinds found elsewhere. Most nationalisms fall somewhere between two extremes: pure ethnonationalism, where the nation is an ancestral unit understood in blood-and-soil terms, and pure civic nationalism, where the nation is just all the people in the territory, regardless of race, religion, or ethnicity. Nearly every case is going to contain some elements of both types. But one of the best things about the United States is that American nationalism comes about as close to a pure form of civic nationalism as exists anywhere on the planet.
No one talks about being “a quarter American”, for example. It would sound like a category mistake. That’s why when my family fled from antisemitism in what’s now Ukraine, or when the other side of my family escaped what’s now Croatia as it was plunged into the First World War, these relatives, within a short time, raised children who felt American and who were regarded as such.
I’m a man of the Left, and in the great majority of contexts I’d consider Ronald Reagan to be one of my very least favourite presidents, but he put this point very well in his last speech in office. He said that you can “go to live in France, but you cannot become a Frenchman” and that this is true of many other nations, but that “anyone, from any corner of the Earth, can come to live in America and become an American”. France may have moved closer to pure civic nationalism over the decades, but the underlying point remains. This is one of the most precious aspects of American democracy.
To point this out isn’t to minimise the long and awful history of slavery, Jim Crow, and the mistreatment of the native population. The after-effects survive today in the economic disparities between different demographic groups. But we should be able to recognise this painful history while also celebrating that, as of 2025, we’ve separated American identity from any sort of racial or ethnic or religious or ancestral identity to a far greater extent than most other nations.
This achievement partly reflects the unique contingencies of American history. Consider France, where national identity has persisted through a number of changes of political and constitutional systems. The French are currently on their fifth republic, and that succession of republics was interrupted at various points by two empires, a monarchist restoration, and the fascism of the Vichy regime. By contrast, America is still in its first republic, meaning that it’s been far easier for us to form a sense of national identity around our allegiance to our founding liberal and democratic principles.
Besides many white Americans have long been able to trace their ancestral roots to many different parts of the world — so many that it would be impossible for there to be a strong association between American identity and, say, ancestral roots in the British motherland (or any other particular county). America exists on its own. And the world-historic victories of the Civil Rights Movement in the Fifties and Sixties undermined any lingering connection between Americanness and even a generic white identity.
In the early 20th century, everyone from Woodrow Wilson to Vladimir Lenin proclaimed a belief in the right of “nations” to self-determination. But what sort of beast is a nation? If the entity seeking self-determination particular ethnic, religious or cultural group, such that having achieved it, the resulting state is “for” that group, then a serious problem lingers about the status of demographic minority populations. No matter how well-treated members of those populations may be, there’s always a sense in which they are going to feel (and be treated) more like guests than full, organic members of the nation.
The extent to which the United States isn’t like that is a civilisational achievement. And if the courts really do let the Trump administration get away with redefining Americanness so that you can only be born an American if you have a genetic connection to other citizens, that would be a long step back into the dark.
