The citizenship fallacy

Why Trump’s effort to end birthright citizenship is fundamentally wrongheaded

Photo by Mick Haupt on Unsplash

By David Leblang

Ronald Reagan’s 1989 farewell address contains what may be the most succinct statement of American exceptionalism ever delivered from the Oval Office: “You can go to live in France, but you cannot become a Frenchman. You can go to live in Germany or Turkey or Japan, but you cannot become a German, a Turk, or a Japanese. But anyone, from any corner of the Earth, can come to live in America and become an American.” That conviction — that America is a creed, not a bloodline — now faces its most direct constitutional challenge in a century and a half.

On April 1, the Supreme Court heard oral arguments in Trump v. Barbara — the challenge to President Trump’s January 2025 executive order that sought to end automatic birthright citizenship for children born in the U.S. to undocumented immigrants or parents on temporary visas. The order claims that such children are not “subject to the jurisdiction” of the United States under the 14th Amendment’s Citizenship Clause. Lower courts ruled it unconstitutional. The administration appealed, and a decision is expected by late June or early July. The key question before the Court is clear: Can the executive branch unilaterally rewrite a 156-year-old constitutional guarantee?

“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.”

That language was not accidental. It was a direct constitutional override of Dred Scott v. Sandford (1857), in which the Supreme Court ruled that black Americans — born on U.S. soil — could never be citizens. The Reconstruction Congress knew exactly what it was doing: ruling out the idea that birth on American soil could depend on a person’s parents’ background or status. The administration’s “subject to jurisdiction” theory does not restore the original meaning. It departs from the Amendment’s most basic purpose.

The Trump administration and its supporters claim that broad birthright citizenship weakens American sovereignty and misinterprets the 14th Amendment’s intent. They contend that the “subject to the jurisdiction” clause was never intended to grant automatic citizenship to children of undocumented entrants or temporary visitors — only to those who owe complete and exclusive allegiance to the United States. It sounds plausible, but it is fundamentally wrongheaded.

These arguments have found vocal supporters. George Washington University Law Professor and Fox News commentator Jonathan Turley, appearing on Fox News after the oral arguments, called the current policy “perfectly insane” and warned that the United States had become a target for exploitation by foreign adversaries. CNN commentator Scott Jennings, former deputy director of political affairs to President George W. Bush, has pointed to birth tourism operations — particularly involving China and the Northern Mariana Islands — as evidence of systemic abuse, arguing that “foreign adversaries“ have built entire commercial enterprises to facilitate births on American soil. Stephen Miller, White House deputy chief of staff for policy and a key architect of the administration’s immigration policy, has gone the furthest: Birthright citizenship, he argues, “steals the actual birthright of every American“ and amounts to “the biggest, costliest scam in financial history.” These voices share a common premise — that citizenship is a scarce national resource, to be rationed rather than extended. That premise is the fallacy at the heart of this entire debate.

This zero-sum framing mixes two completely different groups. The administration’s executive order targets children born to undocumented immigrants and those on temporary visas — groups with very different legal status, economic situations, and pathways to the U.S. The “birth tourism” concern involves wealthy foreigners on tourist visas; the undocumented population is an entirely different demographic. Mixing them up serves a rhetorical purpose, but it does not make a fair argument. It’s worth noting: Citizens of Russia, China, and most countries worldwide must get a B-1/B-2 tourist visa to enter the U.S. If the concern is foreign exploitation, the current consular screening already offers strong tools. There’s no need to rewrite the Constitution to use them.

The deeper flaw in this worldview isn’t empirical, but philosophical: It confuses a creed-based nation for a fortress. Reagan understood this difference. His vision of a “shining city upon a hill” was explicitly non-zero-sum — America’s doors remained open “to anyone with the will and the heart to get here” because national strength came from allegiance to shared principles, not from limiting the number of those who could claim them. To Reagan, being born on American soil symbolized the nation’s fundamental wager: that environment and allegiance could surpass origin, that anyone could earn their place by embracing the ideals that define the Republic. The current administration has abandoned that wager. The question is whether the Supreme Court will do the same.

That vision has deep roots — deeper than Reagan’s. James Madison, in 1790, argued before Congress that the new nation should “hold out as many inducements as possible, for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours” — not merely to increase population, but to “increase the wealth and strength of the community.” Thomas Jefferson, in his first message to Congress in 1801, asked: “Shall oppressed humanity find no asylum on this globe?” He advocated making citizenship more accessible to those who intended to live permanently and wished the country well, seeing immigrants not as threats but as contributors to the multiplication of free, self-governing people.

Frederick Douglass pushed the logic further and more powerfully than any of the Founders. In his 1869 address “Composite Nation“—delivered just three years after the 14th Amendment was ratified—Douglass argued that America was meant to include “all the varieties of the human family,” not despite its founding ideals but because of them. A nation based on universal principles of liberty and self-government could not, without contradiction, base its membership on ancestry or origin. The Amendment that ended the Dred Scott logic was, for Douglass, the constitutional fulfillment of that argument. It was not a loophole. It was the point.

Alexis de Tocqueville, observing American democracy in the 1830s, marveled at how the United States built a common identity not through ancient bloodlines but through habits of association, self-government, and a shared dedication to liberty and equality. Americans from diverse backgrounds united in pursuit of common goals, forging a dynamic, growing society — one whose unity came from participating in democratic life rather than from ethnic sameness.

These voices — from Madison and Jefferson to Douglass, Tocqueville, and Reagan — agree on one point: American citizenship isn’t a finite resource to be divided by heritage. Instead, it is a value-based membership that strengthens the nation when genuinely embraced. The administration’s approach turns this idea upside down, viewing inclusion as a loss.

The data confirm what the Founders suspected and challenge the administration’s core claims. Birth tourism—the narrow phenomenon of short-term visitors deliberately traveling to give birth—remains vanishingly small. (The CDC User Guide to the 2024 Natality Public Use File shows 9,502 births to foreign residents by occurrence in 2024, with roughly 9,500 births reported to mothers with a non-U.S. address as their residence—less than 0.3% of the approximately 3.63 million total U.S. births). In contrast, births to undocumented mothers who are already residing in the United States are estimated at about 7% of annual births (roughly 225,000–250,000), yet these U.S.-born children grow up as Americans who contribute taxes, labor, military service, and innovation.

The National Academy of Sciences’ 2016 report on immigrant integration documents the considerable positive financial contributions of the second generation — birthright citizens, by definition — over their working years, contributions that far exceed the costs associated with their parents’ arrival.

Demographically, the stakes are even higher. With native-born fertility below replacement levels at about 1.73 children per woman, the second generation from immigrant families is the main driver of working-age population growth — helping to prevent the aging crises already affecting Japan, South Korea, and much of southern Europe. The Migration Policy Institute has noted that second-generation Americans, who benefit directly from birthright citizenship, demonstrate higher rates of educational achievement, civic involvement, and upward mobility than either the immigrant first generation or, in many cases, the broader native-born population. Far from depleting a scarce resource, birthright citizenship has expanded the American enterprise — economically, demographically, and culturally — by transforming potential outsiders into engaged participants in the national project. This is not a liability. It is a competitive advantage.

The zero-sum framing not only misinterprets the data but also reflects the exclusionary logic that the 14th Amendment was designed to eliminate. Telling millions of native-born Americans that their citizenship has always been provisional — dependent on their parents’ circumstances — does not safeguard American identity. Instead, it erodes it from within.

The way the administration’s theory describes “illegitimate” birthright citizenship is almost always associated with a brown-skinned child — a baby born near the southern border, to parents who crossed without documents. But that image is a biased and historically misleading portrayal. Consider Rosaria Baldizzi, an Italian immigrant who lived at 97 Orchard Street on Manhattan’s Lower East Side in the 1930s and is believed to have entered the United States without authorization. Her American-born daughter Josephine — a birthright citizen by the same constitutional rule now being challenged — grew up, worked, paid taxes, and became part of the fabric of New York City. No one has ever suggested that Josephine Baldizzi’s citizenship undermined the Republic. The Baldizzis are now part of the Tenement Museum’s permanent record of American immigrant life — a story told with pride, not shame. That is how America is supposed to work.

Then consider Marco Rubio. The current U.S. secretary of state — and a prominent voice in the administration urging the Supreme Court to restrict birthright citizenship — was born in Miami in 1971 to Cuban parents who entered on visas but didn’t become naturalized citizens until 1975, four years after his birth. According to the executive order’s own logic, Rubio’s citizenship at birth was precisely the type the administration now aims to eliminate — conferred by soil, not by his parents’ citizenship. He is, in the administration’s preferred language, an “anchor baby.” He is also the nation’s top diplomat, now carrying out the policy that would have made him stateless at birth. The constitutional irony is not only clear but also disqualifying.

The Baldizzi family and Marco Rubio have no similarities in origin, background, or time period. What they do share is the 14th Amendment — the same clause, applied regardless of ancestry or parental status, that made both Americans. That is not a flaw in the constitutional design. It is the design. And it has been effective.

The Supreme Court now has the power to decide the future of American identity. Whatever the justices choose, this debate has clarified a fundamental choice that goes beyond any single case: whether the United States continues to be the nation envisioned by Madison, Jefferson, Douglass, Tocqueville, and Reagan — a country where anyone can become American by embracing its ideals — or whether it shifts toward a narrower, blood-and-soil view of membership that sees citizenship as a guarded inheritance rather than a shared and expandable commitment. The Court can decide either way. History will record which America it chose.

The zero-sum fallacy provides easy applause but fails to give a clear picture of what America truly is or why the nation’s experiment has succeeded over two and a half centuries. American greatness has never stemmed from closing doors; instead, it has come from the belief — tested, challenged, and reaffirmed — that the principles are inclusive enough for everyone who genuinely embraces them, and that doing so makes the entire country stronger. Rosaria Baldizzi’s daughter understood that. Whether he admits it or not, Marco Rubio does too. And the Constitution does as well.

David Leblang is the Miller Center’s Randolph P. Compton Professor and director of policy research. He is also the Ambassador Henry J. Taylor and Mrs. Marion R. Taylor Endowed Professor of Politics and professor of public policy at the University’s Frank Batten School of Leadership and Public Policy.