Legal Scholars Renew Challenge to Birthright Citizenship Under 14th Amendment
WASHINGTON, D.C. — A renewed legal debate over the scope of birthright citizenship has emerged as scholars Amy Swearer and Hans von Spakovsky published a detailed critique challenging the widely accepted interpretation of the 14th Amendment’s citizenship clause. Their argument centers on the claim that children born in the United States to illegal aliens or temporary visitors are not automatically entitled to citizenship, a position that runs counter to prevailing legal consensus.
Swearer and von Spakovsky’s analysis, published on December 29, 2025, directly counters the views expressed by prominent legal figures such as Professor John Yoo, who recently defended the broad interpretation of the amendment. Yoo contends that the phrase “all persons born or naturalized in the United States and subject to the jurisdiction thereof” plainly includes anyone born on U.S. soil, regardless of their parents’ immigration status. However, Swearer and von Spakovsky argue this interpretation ignores historical legislative intent and early government practices.
They emphasize that the 14th Amendment’s citizenship clause was rooted in the Civil Rights Act of 1866, which explicitly limited citizenship to those “not subject to any foreign power.” This language, they assert, excludes children of aliens temporarily present in the country, including tourists and diplomats. The scholars also highlight the writings of Joseph Story, a 19th-century American jurist, who qualified the common-law principle of jus soli by excluding children born to non-permanent residents.
Their position has gained traction among a growing number of legal academics, including professors Kurt Lash, Ilan Wurman, Randy Barnett, and Samuel Estreicher, who have produced scholarship that challenges the prevailing birthright citizenship doctrine. Swearer and von Spakovsky criticize supporters of unrestricted birthright citizenship for overlooking this body of evidence and for relying heavily on English common law jurist William Blackstone, while neglecting American legal traditions and congressional actions.
This debate has significant implications for U.S. immigration policy and citizenship law. The issue came to the forefront earlier this year when the Supreme Court heard arguments regarding President Donald Trump’s executive order aimed at ending birthright citizenship for children of illegal immigrants. The controversy sparked protests, including demonstrations outside the Supreme Court in Washington, D.C., where families voiced opposition to changes in citizenship rights.
The federal judiciary has also weighed in, with a federal appeals court ruling against the executive order, reaffirming the broad interpretation of the citizenship clause. Meanwhile, legislative history, including statements from Sen. Lyman Trumbull, a principal author of the Civil Rights Act, continues to be cited by both sides in the debate.
As the discussion unfolds, government agencies such as the Department of Homeland Security and U.S. Customs and Border Protection monitor the legal landscape closely, given the potential impact on immigration enforcement and citizenship verification processes.
Legal experts and policymakers alike are watching developments carefully, as the interpretation of the 14th Amendment’s citizenship clause remains a pivotal issue in American constitutional law and immigration policy. The ongoing discourse underscores the complexity of balancing historical intent with contemporary legal and social realities.
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