The Volokh Conspiracy

For a variety of reasons, I oppose Donald Trump's efforts to end birthright citizenship for children of undocumented immigrants and those in the US on temporary visas. And I have argued he deserves to lose the Supreme Court case on this issue. But unlike many other opponents of Trump's policy and of his constitutional arguments, I am not convinced birthright citizenship is the ideal  system. It is, at most, only a second-best option, in the sense that it's better than the currently likely alternative.

Under current political conditions, that likely alternative is subjecting hundreds of thousands of children to deportation, and many adults, as well. Even though Trump's executive order is limited to children born at least 30 days after it was issued, the logic of his legal arguments would deprive millions of adults and older children of their right to live in the United States, as well. If the Fourteenth Amendment denies birthright citizenship to children of undocumented immigrants and temporary visa-holders, that fact did not begin suddenly in 2025, but must have been true all along. Thus, the likely consequence of a legal victory for Trump would be grave harm to millions of children and descendants of immigrants, plus severe damage to the American economy and society from the resulting deportations and legal uncertainty. In addition, millions of other Americans would find it difficult to prove citizenship status if it can no longer be done on the basis of a birth certificate.

But while birthright citizenship is better than the likely alternative at this point in history, I do not believe it is the ideal policy. I explained some of the reasons why in a 2018 post:

Unlike most other advocates of immigration and immigrant rights, I have significant reservations about birthright citizenship. In my view, important human rights should not be so heavily dependent on parentage and place of birth. Our current citizenship system has all too much in common with medieval hereditary aristocracy, under which freedom of movement and other crucial rights were largely dependent on ancestry. I cannot outline anything like a comprehensive alternative here. But, as a general rule, I would prefer a system under which some rights now largely determined by citizenship (particularly freedom of movement, residency, and employment) were delinked from citizenship and made presumptively available to everyone, and citizenship itself were made easier to acquire through pathways that do not require the applicant to be a relative of a current citizen.

More generally, one of my (and many others') main objections to immigration restrictions is that they restrict people's liberty and opportunity based on arbitrary circumstances of ancestry and place of birth.  If you were born to the right parents or in the right place, you get to live and work in the US; if not, you can only do so if the government gives you permission, which in the vast majority of cases is likely to be denied. In that respect, they are very similar to racial segregation and South African apartheid. In both cases, liberty is gravely restricted and many are consigned to a lifetime of poverty and oppression because of morally arbitrary circumstances of birth over which they have no control.

Birthright citizenship is an improvement, in this respect, over a policy based on ancestry and parentage. For many children, it creates an alternative pathway to get around unjust restrictions. But it still restricts liberty and opportunity based on circumstances of birth, in this case based on place of birth, as well as parentage. And people have no more control over the location of their birth than over the identity of their parents. Neither determines your moral worth or how much liberty you are entitled to.

Thus, the far superior policy is simply to let people live and work where they want, regardless of who their parents are or where they were born. If that liberty is to be restricted, it should be only if the people in question pose some grave danger that cannot be addressed in other ways. And, in such extreme situations, native-born people's liberty could potentially be restricted, as well. I develop these points in greater detail in Chapters 5 and 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.

Obviously, under current circumstances, citizenship includes not only the right to live and work in the US, but also rights to vote, hold public office, and receive various welfare benefits. In an ideal system, restrictions on voting and office-holding would be based on competence and (in some cases) there might be exclusions based on a demonstrated danger to liberal democratic institutions (as with Section 3 of the Fourteenth Amendment, which the Supreme Court wrongly gutted, to a large extent). We already have some competence-based constraints on the franchise, such as excluding children, some convicts, and immigrants who cannot pass a civics test most native-born Americans would fail if they had to take it without studying.

Access to welfare benefits should, I believe, be much more severely limited than is currently the case for both immigrants and natives. But even now the vast majority of immigrants contribute more to the public fisc than they take out, and limiting the welfare state is a bad argument for immigration restrictions that - if applied consistently - would also justify severely restricting many other liberties.

Thus, the ideal political system would have a strong presumption against restrictions on migration, while also imposing competence-based constraints on voting rights and office-holding, and limiting welfare benefits in various ways. We need some combination of decoupling citizenship from freedom of movement, constraints on access to government power, and limiting welfare benefits to a class of people who genuinely cannot avoid severe privation without them. And none of these rights and privileges should be, to any great extent, based on parentage or place of birth.

But, obviously, there are serious questions about whether governments can draw these lines in the right places and be trusted not to abuse their powers. Elsewhere, I have argued that we probably cannot rely too much on competence-based restrictions on the franchise, because real-world governments generally cannot be trusted in this field. We should instead address the problem of voter ignorance and bias by other means. It is also obvious that we are not going to get anywhere close to full freedom of movement for migrants anytime soon.

For these kinds of reasons, I think birthright citizenship for all people born in the United States is the best available option at this time. That's especially true because it does not preclude creating and expanding other pathways to residency, work rights, and citizenship. But we should  be under no illusion that it is anywhere close to ideal, and we should remember that it includes an important element of unjust discrimination based on arbitrary circumstances of birth.

In this case, as with other situations involving unjust discriminatory immigration restrictions, the right approach to arbitrary discrimination is to "level up" rather than "level down." We should not deny birthright citizenship to those who currently enjoy its benefits. But we should also do all we can to expand these opportunities to others.