Who Inherits America?

The Court said what birthright citizenship is, but the people can decide what it should be.

If a woman enters the United States illegally and then gives birth, or travels here solely to give birth and then returns home with her newborn, is the child an American? Last month, in Trump v. Barbara, the Supreme Court said yes: the Constitution requires that result. Specifically, the Fourteenth Amendment’s guarantee of citizenship to “all persons born … in the United States, and subject to the jurisdiction thereof” means all persons born in the United States, with only the narrowest exceptions for people not subject to U.S. law—the children of foreign diplomats, invading armies, and the like.

This issue of “birthright citizenship” receives well-deserved attention, and the Barbara decision has excited enormous concern, for several reasons. Failure to enforce immigration law, and the proliferation of temporary statuses, has greatly heightened the issue’s pragmatic salience. Pew Research estimates that close to one-in-ten births in America are to mothers in the country without permanent status, mostly with no legal status at all. Tens of thousands of other children are born through “birth tourism” and even bizarre surrogacy schemes, with the large number of putative American citizens then raised in China without any allegiance to their country of birth posing a particular risk to national security.

Beneath these pragmatic concerns lies one more philosophical, and foundational for the nation: the question of what it means to be an American. Remarkably, the Constitution’s guarantee of citizenship to anyone born within the country’s borders is the only specification our republic’s formative document offers about the nature of the national community and the conditions for joining it. Parsing constitutional text determines what the law says citizenship is today, but the controversy should prompt much greater attention to what citizenship should be, and why.

This is the project that American Compass sets forth in our statement on Reclaiming American Citizenship. “We can sense the country we thought we knew, and the future we want for ourselves and our children, slipping away,” the statement observes:

We feel unmoored, disoriented, weighed down—searching for a better national path that we have no idea how to find and are told does not exist.

Why aren’t we satisfied with more stuff, better technology, and fewer constraints than anyone in human history?

Because alongside economic growth and improved living standards, we have suffered the degradation of our communal, economic, and national life. In a word, what we have lost is our citizenship; not a thin, legalistic citizenship, but the thick, reciprocal relationship that provided the bedrock for the American republic and gave each citizen a real stake in its future.

Sustaining that relational citizenship requires, in both principle and practice, a sensible and shared account of how people become citizens, taking on the associated burdens and, in turn, earning a place, a purpose, and a say in the forces shaping their lives. Rather than turning immediately to plans for changing the Court or working around its ruling, policymakers and political activists—and the nation—would benefit from a more searching inquiry into what we mean by citizenship in the first place. Especially on a question so fundamental, democratic deliberation is an end in itself, strengthening the nation’s self-understanding. And when the question is one that the nation has not engaged squarely for generations, opportunity may well exist to forge consensus where none has existed.

The more easily explained route to citizenship is consent. Individuals can seek membership in the community, and the community can choose to confer citizenship. The Constitution recognizes this route in Article I, granting Congress the power “to establish an uniform Rule of Naturalization.” As a result, the United States has legal pathways down which millions of people have traveled, joining and enriching their new nation while bettering their own lives. To the extent that we establish those pathways through a constitutionally prescribed and democratic process, and operate them in keeping with the laws as written, the relationship among all citizens is legitimized and strengthened.

But for whom is citizenship a birthright? At first glance, the best answer might be “no one.” The newborn arrives in the world without having consented to the national community, and the community does not control which births occur. This ignores the fundamentally intergenerational nature of a nation and its ties that bind.

In Reflections on the Revolution in France, Edmund Burke described the State as:

… a partnership in all science, a partnership in all art, a partnership in every virtue and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.

The people of the United States had already inscribed the same principle in the preamble to the U.S. Constitution, declaring that they established the Republic “to secure the Blessings of Liberty to ourselves and our Posterity.” Perhaps there were nations founded by people who intended themselves to be the only beneficiaries, with their own children cast out to find other homes or at least treated indistinguishably from foreigners. If there were, they probably did not last long. In America, at any rate, the principle that the nation exists not only for current citizens, but also for their children is foundational.

One of the great ironies in modern American politics lies in the Left’s attempts to articulate a coherent alternative that rejects an inheritance-based conception and preserves the Barbara status quo. On one hand, liberals often see themselves fighting immigration battles from the moral high ground, promoting an expansive view of America as a “creedal nation” in which membership depends upon commitment to a set of ideas. They look down from this vantage point upon conservatives, who they believe are struggling below in a swamp of “blood-and-soil” nationalism, trying to limit membership based on ethnic heritage.

On the other hand, what kind of creedal nation just grants citizenship automatically? Newborns rarely hold strong opinions about the Declaration of Independence or the Gettysburg Address. The liberal position appears to be that newborns should be American citizens if they share the blood of other American citizens or are born on American, well, er, soil.

Contrast this with the case that JD Vance, then the Republican Vice-Presidential nominee, made in his speech at the 2024 Republican National Convention. Though it prompted the typical “blood and soil” critiques, what he said came much closer to inheritance and consent:

America is not just an idea. It is a group of people with a shared history and a common future. It is, in short, a nation. Now, it is part of that tradition, of course, that we welcome newcomers. But when we allow newcomers into our American family, we allow them on our terms. That’s the way we preserve the continuity of this project from 250 years past to hopefully 250 years in the future. And let me illustrate this with a story, if I may.

I am, of course, married to the daughter of South Asian immigrants to this country. Incredible people. People who genuinely have enriched this country in so many ways. And, of course, I’m biased, because I love my wife and her family, but it’s true. Now when I proposed to my wife, we were in law school, and I said, “Honey, I come with $120,000 worth of law school debt, and a cemetery plot on a mountainside in Eastern Kentucky.”

A nation, says Vance, is a group of people with a common history and a shared future—that is, citizenship grounded in inheritance. Our nation, he says, also welcomes newcomers, but they must join the family on our terms—that is, citizenship grounded in consent. He then offers his own marriage to show that these conceptions are consistent and complementary, uniting his admiration for his immigrant in-laws with his attachment to the place where “there will be seven generations just in that small mountain cemetery plot.”

The tragedy of the Barbara decision is that it appears to end debate over the American people’s understanding of citizenship, when reclaiming that citizenship is precisely what the nation needs. In fact, the Court foreclosed only the judicial route, and in doing so opened wider the democratic one. The debate to have now is not over how best to interpret the Constitution, but over what the Constitution should say.

According to conventional wisdom, pursuing a constitutional amendment is quixotic at best. How could two-thirds of the House, two-thirds of the Senate, and three-quarters of the states agree on anything? But compare it with the course that some conservatives urged immediately after the decision: remaking the Court until it overrules Barbara by setting agreement with the dissenters as the new litmus test for judicial nominees. Building the needed majority that way will be no easier, necessitates more time, and is likely to cost far more.

Whether the Fourteenth Amendment should be read to mandate birthright citizenship for anyone born on U.S. soil is an interesting legal question. But the Court was less closely divided than the voting breakdown suggests. While Justices Gorsuch and Thomas were prepared to treat visitors domiciled abroad as outside the amendment’s scope, their “domicile” standard suggested that children born to illegal immigrants living in the United States would still be citizens. The interpretation that many conservatives want to see become law starts with limited support among the conservative justices—to say nothing of the liberals. And the mode of interpretation that conservatives would have to advocate—rejecting what the ratifiers said and meant in favor of inferring what they might have said if faced with our situation—returns to the “living constitution” and the Supreme Court as super-legislature.

Whereas the judicial fight would be an unpopular one that likely undermines other conservative aims, a campaign for a discrete constitutional amendment could unite conservatives and divide liberals. Some on the left-of-center could see the wisdom in a more robust conception of citizenship, or at least the political necessity; others would not. Conservative leaders would be much better served, and probably get much farther, talking for the next decade about how America defines citizenship and why that definition belongs in the Constitution than about why the Court must be pushed further right and toward more creative interpretation.

Conservatives should advocate an amendment that does not simply eliminate the Fourteenth Amendment’s birthright-citizenship provision, but rather replaces it with a better provision grounded in inheritance. Our Constitution should codify the principle stated in its preamble that our nation is an intergenerational project and confirm that the reciprocal obligations of citizenship pass accordingly. This would pair with the Article I principle that people can become citizens through their choice and the nation’s consent, given through rules of naturalization established by Congress. Leaving Congress to decide the specific mechanisms of consent ensures that each generation can make its own choices, rather than consent transmitted at the constitutional level in one era preventing the nation from opening or closing routes in another.

Precedents for this transition, and an inheritance-and-consent based model, abound in developed democracies. Because soil-based birthright citizenship was a feature of the English common law, it became a feature of the Anglosphere. But the United States and Canada are the outliers in retaining it. The United Kingdom, Australia, Ireland, and New Zealand have all achieved reform in recent decades. As in those cases, policymakers here would need to address a number of questions: What about legal permanent residents? What about special cases of statelessness? What about illegal immigrants who live indefinitely in the country and raise children here? But we face similar questions, in some cases the same questions, today. We would face them if a future Court overturned Barbara.

Reclaiming American citizenship through a substantive national debate about what it means and why it matters would make serious immigration enforcement and legal reform much more viable, and provide a starting point for solving many other important problems too.