A New Challenge to Birthright Citizenship: International Comparisons

On January 20, 2025, shortly after his inauguration, President Donald Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.” This order sought to redefine the Fourteenth Amendment’s Citizenship Clause, specifying that children born in the U.S. would not automatically acquire citizenship if neither parent was a U.S. citizen or lawful permanent resident. However, this executive order faced immediate legal challenges. Twenty-two states, along with the District of Columbia and the city of San Francisco, filed a separate lawsuit to block the order. On January 23, 2025, Judge Coughen in the Western District of Washington temporarily blocked the order. The judge’s ruling halted the enforcement of the executive order, citing its direct contradiction with the Fourteenth Amendment’s guarantee of birthright citizenship.

Historical Foundation of Birthright Citizenship on the United States
The Fourteenth Amendment, ratified in 1868 in the aftermath of the Civil War, introduced the principle of birthright citizenship to ensure that formerly enslaved individuals could not be denied their rights as citizens. United States v. Wong Kim Ark (1898) was the landmark U.S. Supreme Court case which affirmed the principle of birthright citizenship under the Fourteenth Amendment. In this case, the Court held that the Fourteenth Amendment guaranteed citizenship to all persons born on U.S. soil, regardless of the parents’ citizenship status.

Jus Soli vs. Jus Sanguinis
The debate over birthright citizenship often involves the international legal principles of jus soli (“right of the soil”) and jus sanguinis (“right of blood”). Jus soli is the principle that anyone born on the territory of a state automatically acquires the nationality or citizenship of that state. This principle is central to U.S. birthright citizenship, as guaranteed by the Fourteenth Amendment. Jus sanguinis, on the other hand, grants citizenship based on the nationality or ethnicity of one or both parents, rather than the place of birth.

Comparative International Approaches
Similar to the U.S., Canada uses a jus soli approach, granting citizenship to any child born on Canadian soil regardless of their parents’ citizenship status. Other nations that have adopted a jus soli approach include the majority of South America, Mexico, Jamaica, etc.

The majority of European and Asian countries rely primarily on jus sanguinis for determining citizenship, often supplemented by residency or naturalization laws. For example, in Germany citizenship is based on jus sanguinis, meaning children born to foreign parents do not automatically become citizens. However, a child born in Germany to non-German parents can still acquire German citizenship if one parent has legally resided in Germany for at least five years and holds a permanent residence status (or meets similar criteria, such as related to Swiss nationality). Similarly, under Japan’s Nationality Act, a child only acquires Japanese nationality if at least one parent is Japanese at the time of birth, regardless of the child’s birthplace, however, the child can become a citizen through a naturalization process.

The recent executive order challenging birthright citizenship has sparked legal battles that call into question the longstanding jus soli principle embedded in the Fourteenth Amendment. As international comparisons reveal diverse citizenship models, the future of American birthright citizenship now hinges on forthcoming judicial and legislative decisions.

 

Article Written by Abena Aidoo

 

Sources:
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