birthright citizenship
Birthright citizenship is the principle that all people born in a territory of a state automatically become citizens of that territory with a few limited exceptions. A person born in a United States territory becomes a natural born citizen, which is separate from a naturalized citizen, who is conferred citizenship later in life. Naturalization is a process controlled by Congress, but birthright citizenship is automatically applied as prescribed by the United States Constitution.
The United States follows jus soli (Latin for “right of the soil”), which came from English common law. In effect, this means that all people, with limited exception, born in a U.S. territory are U.S. citizens. Jus soli is not the norm around the world. Most countries instead follow jus sanguinis (Latin for “right of blood”), which means citizenship is passed through lineage rather than territory.
Jus soli was enshrined in the U.S. Constitution by the Fourteenth Amendment. The relevant clause states that: “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.” This section, sometimes called the Citizenship Clause, has undergone some constitutional interpretation over time but has largely remained untouched.
The Citizenship Clause was passed in large part to repudiate the decision in Dred Scott v. Sandford, 60 U.S. 393 (1856), where the Supreme Court ruled that African Americans (free or enslaved) were not citizens of the United States. The Court reasoned that the common law view that free people born in the territory of a sovereign were citizens of the sovereign did not apply to freed slaves. The authors of the Fourteenth Amendment pushed back on this notion by clarifying that all recently freed slaves were citizens by codifying that the common law jus soli approach applies to all people born in the United States. See: 8 U.S. Code § 1401.
Most of the debate that surrounds this relatively uncontroversial clause lies in the language “subject to the jurisdiction thereof” found in 8 U.S. Code § 1401(a). However, the Supreme Court in the seminal case U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), recognized only two extremely narrow exceptions to birthright citizenship: children of foreign diplomats and children of enemy invaders born during wartime occupation of U.S. territory. The reasoning in both cases is that neither group, diplomats nor invaders, are subject to the laws of the territory. Diplomats are not subject to U.S. law due to diplomatic immunity, and invaders because there is no expectation of allegiance to the United States.
Wong Kim Ark also established that all people born in the U.S. are citizens regardless of their parents’ immigration status. The Court found that Wong Kim Ark, a United States-born laborer whose parents immigrated from China, was a citizen by virtue of being born in the U.S., even though under the laws of the time, his parents could not receive citizenship. The Court reasoned that those born in the U.S. owe allegiance to the U.S. without regard to their parent’s citizenship status.
Other minor exceptions to the automatic grant of citizenship by the Fourteenth Amendment are: children born on U.S. military bases abroad, children born in unincorporated U.S. territory such as American Samoa, and children born on a merchant vessel in international waters, even if the vessel is registered to the United States. See: U.S. Department of State - Birth of U.S. Citizens and Non-Citizen Nationals Abroad.
The Supreme Court’s broad interpretation of birthright citizenship has remained largely unchanged. One notable restriction came in 1971 when the Supreme Court decided Rogers v. Bellei, 401 U.S. 815 (1971). In this case, children born to a U.S. citizen parent while abroad are granted their U.S. citizenship by statutory authority, not by birthright. In Rogers, the Court found that while birthright citizenship in the territory of the U.S. is automatic, Congress maintains control over grants of citizenship to those whose citizenship comes instead from a statutory provision.
A distinction between federal and state citizenship also exists. Due to the system of federalism in the United States, people can have concurrent state and national citizenship. U.S. citizenship is established by birth in a U.S. territory; however, citizenship of a U.S. state typically follows parental domicile and is not automatically granted by the location of birth. For example, a child born to parents from New York State while on vacation in California, would be a U.S. citizen because they were born in a U.S. state, but would not automatically be a citizen of California; the child would instead likely be a citizen of New York State because their parents remain domiciled in New York.
[Last reviewed in April of 2026 by the Wex Definitions Team]
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