Born in the USA: The Constitution Is Clear – Babies Are Citizens

On February 25, 2025, the House Judiciary Committee held a hearing to discuss the issue of President Trump’s Executive Order 14160, which attempts to gut the Constitution’s guarantee of birthright citizenship.

President Trump’s Executive Order (EO) seeks to rewrite a constitutional guarantee – turning citizenship from a birthright into a “profound gift” to be bestowed as patronage at his discretion and choice.

While Trump is seeking to deny citizenship to U.S.-born babies, who would grow up in this country reciting the Pledge of Allegiance, singing the National Anthem, and learning about democracy and the U.S. Constitution, he simultaneously wishes to offer pathways to citizenship to:

1. Foreign oligarchs willing to purchase “Gold Card” citizenship for $5 million; and,

2. White South African farmers.

With respect to the children born in the USA, University of Virginia law professor Amanda Frost testified before the House Judiciary Committee that the President is attempting to “rewrite the Constitution” and deny babies citizenship at “the most vulnerable moment of their new lives.”

Background on Birthright Citizenship

In declaring independence from the British hereditary monarchy, our nation’s original 13 colonies asserted in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

These “inalienable Rights” do not just magically apply only to those who turned 18 years of age and became adults. Birthright citizenship, by definition, is a right applied to BABIES.

Professor Frost testified:

Birthright citizenship is a foundational legal principle that defines “American” based on birth on U.S. soil, not ancestry.

Unfortunately, in 1857, the U.S. Supreme Court, in its infamous decision Dred Scott v. Sandford, rejected this founding legal principle. As Frost explained:

Chief Justice Roger B. Taney declared that no Black person could ever be a citizen of the United States, defining “American” by race and ancestry.

After the Civil War, Congress passed the Fourteenth Amendment to the Constitution to correct this injustice. It was ratified in 1868.

Professor Frost explains:

Thus, the Fourteenth Amendment sought to restore the principle of birthright citizenship to those born on U.S. soil, without regard to race, ethnicity, circumstance, or heredity. It reads:

Section 1: 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.

The juxtaposition of the hearing witnesses was striking.

Opponents of birthright citizenship, such as R. Trent McCotter, a partner at Boyden Gray PLLC, argued that “…each of those clauses invokes a specialized term of art. In other words, it doesn’t mean what it might mean at first glance.”

Again, “it doesn’t mean what it might mean at first glance.”

McCotter and some of the members of the House Judiciary Committee claimed that the Citizenship Clause isn’t about birthright citizenship, but instead, is about the citizenship of parents and their presumed “allegiance” – words that are found nowhere in the Citizenship Clause.

In contrast, Professor Frost explained:

The text, the drafting history, the original understanding, and over a century of unanimous judicial precedent and historical practice all confirm that the Citizenship Clause means what it says.

Again, the Citizenship Clause recognizes that, in America, children and their birthplace matter.

Birthright Citizenship Recognizes That Babies Are People

Some at the House hearing ignored the obvious: “persons born” means babies. Birth on U.S. soil obligates the government to guarantee those newborns the benefits and responsibilities of citizenship, with the exception of the few who are not “subject to the jurisdiction thereof” of the United States.

Yet, opponents of birthright citizenship fixate on the parents, disregarding the rights of the babies cited in the Fourteenth Amendment.

However, in the aftermath of the Civil War, the 39^th Congress (March 1865-1867) recognized that children would be central to the nation’s reconstruction and future democracy.

As Rep. Ignatius Donnelly (R-MN) said, “Civilization is nothing more than education.”

Donnelly argued that the nation’s future demanded the education of a citizenry with “intelligence, enterprise, invention, industry, prosperity, liberty, and justice” and juxtaposed it to “ignorance,” which he said promotes “sloth, poverty, oppression, cruelty, slavery, and last of all, anarchy.” (Congressional Globe, June 5, 1866, 2967)

Rep. Samuel W. Moulton (R-IL) added:

…every child of this land is, by natural right, entitled to the education…as much a natural right as the right to breathe the air and to be provided with food and clothing. (Congressional Globe, June 8, 1866, 3045)

Yet, opponents of birthright citizenship echo the exclusionary arguments of Sen. Edgar Coman (R-PA), who opposed the Fourteenth Amendment in 1966, arguing that certain racial and ethnic groups (i.e, “Gypsies” and the “Chinese”) should be denied citizenship. He suggested that citizenship should be limited to “my own people, the people of my own blood and lineage, people of the same religion, people of the same beliefs and traditions [and not] of other men entirely different in all these respects….” (Congressional Globe, May 30, 1866, 2891)

But his argument for basing citizenship on “blood and lineage” did not prevail.

Sen. John Conness (R-CA), an immigrant from Ireland, countered:

I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens in the United States…. (Congressional Globe, May 30, 1866, 2891)

Sen. Conness explained that the Fourteenth Amendment should be passed and that all children, including those of Chinese immigrants, “shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.” (Congressional Globe, May 30, 1966, 2892)

Sen. Conness’s position prevailed, and was upheld by the Supreme Court in an 1898 decision, United States v. Wong Kim Ark, when Judge Horace Gray wrote:

….the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory….

The only current exceptions are those born to foreign diplomats and ambassadors, as they are the only group not “subject to the jurisdiction thereof.”

For 127 years, Wong Kim Ark has stood as a guiding constitutional principle on birthright citizenship – reaffirmed by the courts, Congress, and longstanding regulatory and administrative practice.

Yes, Babies Are People Too

Unfortunately, children are often “invisible” to policymakers. They do not vote, do not have political action committees (PACs), do not have a flock of paid lobbyists pushing lawmakers to attend to their rights, needs, and concerns, and thus, lack political power.

Consequently, kids are often treated as an afterthought, and politicians and the Supreme Court are often unsure and unclear about the rights, obligations, and relationships between government, parents, and children themselves. There are not always clear boundaries. Children need both the support of parents and government, but at times, protection from parents and government.

However, the plain language of the Fourteenth Amendment clearly provides rights to babies. U.S. District Judge John C. Coughenour, an appointee of President Ronald Reagan, recently ruled that Trump’s EO violated the Constitution:

Citizenship by birth is an unequivocal Constitutional right. It is one of the precious principles that makes the United States the great nation that it is. The President cannot change, limit, or qualify this Constitutional right via an executive order.

The very act of one’s birth conveys citizenship to them under the Fourteenth Amendment.

Justice Gray wrote in Wong Kim Ark:

…citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.

Unfortunately, some members of the House Judiciary Committee hearing fail to recognize this. For them, the rights, needs, and concerns of “persons born” (i.e., babies) are irrelevant or a complete afterthought. To them, the immigration status of one’s parents is the only thing that matters and every child born in the United States should be subjected to a naturalization process.

The Supreme Court Has Rejected Punishing Children for Their Parents’ Actions

Beyond birthright citizenship, the Supreme Court has repeatedly ruled that children should not be penalized for their parents’ status or actions.

In Federalist 43, James Madison explained that Article III of the Constitution limits punishment for crimes, such as treason, “from extending the consequences of guilt beyond the person or the author.”

In other words, a child does not inherit and should not be punished for the actions of their parents (see, for example, Max Stier, Corruption of Blood and Equal Protection: Why the Sins of the Parents Should Not Matter, Stanford Law Review, Feb. 1992).

In Weber v. Aetna Casualty & Surety Co. (1972), for example, Judge Justice Powell cited the Equal Protection Clause of the Fourteenth Amendment in overturning a Louisiana law that denied benefits by discriminating against children born out of wedlock. Powell wrote:

…visiting this condemnation [of relationships outside marriage] on the head of an infant is illogical and unjust. Moreover, imposing disabilities upon the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth, and penalizing the illegitimate child is an ineffectual – as well as an unjust – way of deterring the parent.

Moreover, in the Supreme Court case Plyler v. Doe (1982), which struck down efforts in the State of Texas to deny or charge tuition to non-citizen children for public education, Justice William J. Brennan noted that children in the case were neither responsible for their parents nor their immigration status, and nor could they affect it. Justice Brennan argued:

Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.

The same logic applies to birthright citizenship. Denying a baby citizenship based on their parents’ status or actions is as unjust as punishing a baby for a parent’s unpaid speeding ticket.

Gutting Birthright Citizenship: Putting Children in Harm’s Way

If the Constitution’s birthright citizenship provision is somehow gutted and children are denied based on the blood lineage of their parents, the thousands of children that would be denied citizenship would be subject to enormous harm, including statelessness.

As I have previously written, eliminating birthright citizenship would:

• Require every one of the 3.6 million babies born annually in the U.S. to apply for citizenship.

• Deny babies essential services like health care, nutrition, and child care — at their most vulnerable moment.

• Create a massive bureaucracy to decide which babies “belong” here and which do not.

• Leave hundreds of thousands of children stateless, which would leave them vulnerable to exclusion, exploitation, and stripped of their opportunity for life.

Professor Frost explains the devastating consequences this change would have on ALL BABIES born in this country.

Defending Babies and the Constitution

The Citizenship Clause of the Fourteenth Amendment does not allow for the political whims of any given president. Birthright citizenship is not a privilege; it is a constitutional right. The provision exists to ensure that babies born on U.S. soil are recognized as full and equal citizens from the moment they take their first breath.

Efforts to undermine birthright citizenship are not only unconstitutional but an attack on the most vulnerable members of our society: children. These proposals, including the President’s EO and legislation by Sen. Lindsey Graham (R-SC) and Rep. Brian Babin (R-TX), the Birthright Citizenship Act of 2025 (S. 304/H.R. 569), fail to acknowledge that children are not merely extensions of their parents. In fact, they are individuals with their own rights, entitled to constitutional protections like other Americans.

The purpose of the Citizenship Clause was to overturn the Dred Scott decision and permanently reject the denial of citizenship based on race, ethnicity, or heritage in this country. The provision also affirms another provision in the Fourteenth Amendment, the Equal Protection Clause, by preventing the placement of children in harm’s way as some sort of punishment for circumstances beyond their control.

If Trump’s Executive Order 14160 were to stand, it would impose enormous and targeted harm on children by rendering hundreds of thousands of them stateless, subjecting them to a lifetime of legal limbo, exclusion from basic rights and protections, and exposing them to exploitation. The ramifications would be staggering – not just for the children affected, but for the very fabric of our democracy.

Newborns cannot advocate for themselves. They lack political power, which is why it is up to all of us – parents, policymakers, and everybody concerned about justice – to speak out against unconstitutional actions.

Citizenship for babies is not a “gift” to be bestowed as some form of political patronage. It is a birthright.

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