Yesterday, a good friend of mine—who is not a fan of the current administration—sent me links to two articles on the hot-button issue of birthright citizenship (see links below).
One was by Washington Post columnist Eugene Robinson, and the other by former NY Times columnist, Anand Giridharadas. Both passionately advocate for an “inclusive” birthright citizenship policy. However, Robinson accuses Trump—and by extension, anyone else questioning this policy—of racism.
President Donald Trump’s executive order purporting to abolish birthright citizenship is unambiguously and profoundly racist. We can conclude only that this is the whole point. The order plainly violates the Constitution and seeks to overturn crystal-clear Supreme Court precedent.
Eugene Robinson
I’ve followed Eugene Robinson’s work at The Washington Post over the years and am well acquainted with his point of view. I’ve always enjoyed reading his perspective, even when I disagree—which I often do. I believe we should all strive to consider perspectives from commentators and media voices that differ from our own. Over the years, I’ve made this a personal habit.
A central theme in Robinson’s writing is race, often framed as a critique of Republican policy initiatives. This is especially true when discussing Donald Trump, a politician who, to be fair, provides ample material for criticism. But in the debate over birthright citizenship, Robinson and others who take a similar approach reduce a complex legal and policy issue to a simplistic “crystal-clear” narrative centered on race. And that’s wrong.
Our allies ‘across the pond’ in the United Kingdom disagree with Robinson on this issue. Would he call their policy racist?
The British Nationality Act (1981)
The British Nationality Act 1981 fundamentally reshaped the UK’s approach to birthright citizenship by ending the principle of unconditional jus soli–the principle that anyone born on their soil automatically becomes a citizen. Prior to 1983, anyone born on British soil automatically acquired citizenship, regardless of their parents’ immigration status. However, this changed with the 1981 Act, which took effect on January 1, 1983, and established new eligibility requirements for citizenship by birth. Under the revised law, a child born in the UK is only automatically granted British citizenship if at least one parent is either a British citizen or legally settled in the UK with indefinite leave to remain or permanent residency. Importantly, the law was not retroactive, meaning that those born in the UK before 1983 retained their citizenship, but children born afterward became subject to the new rules. Additionally, the 1981 Act explicitly excluded children of diplomats from birthright citizenship, aligning with international norms by recognizing that such individuals are not subject to British jurisdiction. These legal changes reflect the UK’s deliberate move away from automatic citizenship by birth, reinforcing the principle that nationality should be tied to legal status and long-term commitment to the country rather than merely birthplace.
Most of our allies in the developed world do not recognize unrestricted birthright citizenship. Would Robinson argue that their policies stem from racial animus? The fact is, the United States is an outlier in this regard, and there is ample reason for a good-faith discussion about whether this policy continues to serve the national interest.
Trump, whatever one may think of him, is trying to invite a reasonable legal challenge to a policy that has gradually evolved beyond its original intent (see argument below). To frame such a challenge as inherently racist, as Robinson does, is both untruthful and harmful to public discourse. If we’re ever going to have real discussions about immigration, national identity, or any other important issue, we need to drop the automatic cries of racism and focus on the actual arguments.
I believe Mr. Robinson overlooks crucial aspects of the history and legal rulings surrounding birthright citizenship in the United States. With that in mind, here is my more detailed perspective on the issue that moves beyond reflexive accusations.
The Historical and Legal Foundations of US Birthright Citizenship
Lawmakers drafted the Fourteenth Amendment in 1868 to secure citizenship rights for freed slaves, ensuring they were recognized as full members of American society. However, its phrasing—”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens”—has since been debated in contexts beyond its original intent.
The drafters of the amendment did not intend to extend citizenship to children of foreign nationals without full legal allegiance to the United States. The 1866 Civil Rights Act, which laid the groundwork for the Fourteenth Amendment, explicitly granted citizenship to “all persons born in the United States, and not subject to any foreign power.” This wording suggests that Congress sought to exclude from automatic citizenship those whose parents owed allegiance to another country.
Misinterpretation of Wong Kim Ark
Proponents of universal birthright citizenship (the more inclusive kind) often cite United States v. Wong Kim Ark (1898) as definitive proof that the Fourteenth Amendment guarantees citizenship to all children born on U.S. soil. However, this is a misreading of the case. Wong Kim Ark concerned the U.S.-born child of legal permanent residents, not of undocumented immigrants or temporary visitors. The ruling did not directly address the modern issue of birthright citizenship for children of illegal aliens.
Further, early Supreme Court decisions like Elk v. Wilkins (1884) held that being born within U.S. territory was not sufficient for citizenship; one had to be fully subject to the country’s jurisdiction, meaning complete political allegiance.
Practical and Policy Implications of Birthright Citizenship
Unlike the United States, most developed nations have restricted or eliminated automatic birthright citizenship. I’ve already mentioned the UK. Other countries like France and Germany once granted citizenship based on jus soli—the principle that anyone born on their soil automatically becomes a citizen—but later abandoned it due to concerns over abuse and unintended consequences. The U.S. remains one of the few advanced economies where individuals can acquire citizenship simply by being born on its soil, regardless of their parents’ legal status.
This policy creates incentives for illegal immigration, as individuals recognize that having a child in the U.S. can provide an anchor for legal status and benefits. The term “birth tourism” describes cases where foreign nationals travel to the U.S. specifically to give birth, securing citizenship for their children despite having no lasting ties to the country.
The Moral and Cultural Counterarguments
Many contend that birthright citizenship defines American identity. Anand Giridharadas, in his article “The Idea of Birthright Citizenship,” presents an emotional and cultural argument: that America is a nation of becoming, defined not by blood or lineage but by inclusion. He contrasts this with European countries that define citizenship by ancestry, arguing that America’s model is superior because it embraces newcomers as equals from birth.
While compelling, this vision overlooks the crucial role of legal processes in maintaining a functioning nation-state. Immigration is a cornerstone of American success, but it should be orderly and lawful, ensuring that new citizens share the values and responsibilities of the country they join. A system that effectively rewards illegal entry undermines this principle.
The Path Forward: A Balanced Approach
Rather than maintaining universal birthright citizenship, the U.S. should adopt a policy that ties birthright citizenship to legal status. A possible approach:
- Citizenship should be granted at birth only if at least one parent is a U.S. citizen or lawful permanent resident.
- Children of non-citizens could be eligible for citizenship through a streamlined naturalization process, rather than automatically.
- Clear guidelines should be established to prevent birth tourism and other abuses while maintaining protections for those who come to the U.S. legally and contribute positively.
Supreme Court Direction
For decades, birthright citizenship has expanded far beyond its original intent, not through congressional action or explicit judicial precedent, but through administrative policy creep. This drift occurred “silently through the back door” because executive agencies and immigration authorities passively adopted an overly broad interpretation of the Fourteenth Amendment, rather than enforcing it as originally understood. Courts, too, have failed to clarify the issue, allowing bureaucratic inertia to dictate a policy that was never explicitly sanctioned.
It is not the role of unelected officials to redefine constitutional meaning through gradual reinterpretation, yet that is precisely what has happened. The Supreme Court must finally take up this case and settle the matter—preferably by reaffirming the original intent of the amendment, as was written and understood by its framers.
This, I believe, is Trump’s intent with this controversial executive order (he’s had a few!).
Conclusion – Returning to the Personal
This debate is about more than legal technicalities—it’s about how America defines itself. Is citizenship a mere accident of birth, or is it a commitment to a shared national identity and legal order?
I respect those who argue passionately for universal birthright citizenship, and I understand their concerns about exclusion and fairness. However, America’s history and legal traditions argue that citizenship should be reserved for those who are truly part of the nation, not extended indiscriminately.
At the very least, this is a debate worth having, rather than allowing bureaucratic reinterpretation aided by a few lower court decisions to override the original meaning of the Constitution. The Fourteenth Amendment must be understood as it was intended by its framers, not reshaped to fit modern political preferences. In that light, we should critically examine whether birthright citizenship, as currently applied, aligns with the amendment’s original purpose and serves the best interests of the country and its future generations.
Debating birthright citizenship is a matter of law and principle, not racism.
Sources:
Richard Epstein – The Case Against Birthright Citizenship (Legal scholar, Laurence A. Tisch Professor of Law at NYU School of Law)
Amy Swearer & Hans von Spakovsky – Birthright Citizenship Clause Too Many Forget, But Trump is Right to Question (Legal and policy experts at The Heritage Foundation)
Eugene Robinson – The Real Reason Trump Wants To End Birthright Citizenship (Pulitzer Prize-winning columnist at The Washington Post)
Anand Giridharadas – The Idea of Birthright Citizenship (Author and political analyst, former New York Times columnist)
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