Birthright citizenship: under the flag

SCOTUSblog

by Akhil and Vikram Amar

February 23, 2026

AI-Generated Deep Dive Summary

The concept of birthright citizenship under the U.S. Constitution hinges on whether a baby is born "under the flag," meaning within American soil while subject to its jurisdiction. This principle, rooted in the 14th Amendment's Citizenship Clause, ensures that all children born on U.S. territory are automatically granted citizenship, regardless of their parents' status or nationality. The article challenges President Donald Trump's recent executive order seeking to end birthright citizenship, arguing it is unconstitutional and contradicts historical interpretations by Reconstruction Republicans who framed the 14th Amendment. The series' inaugural column highlights how the framers and ratifiers of the 14th Amendment repeatedly emphasized that "all persons born under the flag" are citizens. This phrase, used by leaders like Vice President Hannibal Hamlin in 1866, reflects a clear originalist intent to extend citizenship to all individuals within U.S. jurisdiction, including slaves, Confederates, and immigrants. The authors argue that this principle remains unchanged today, encompassing even children of undocumented parents born on American soil. However, the article acknowledges exceptions where "under the flag" does not apply—such as foreign embassies, military bases, or tribal lands—where individuals may not be subject to U.S. jurisdiction. These enclaves fall outside the scope of constitutional birthright citizenship, as recognized in historical precedents like *United States v. Wong Kim Ark* (1898). The significance of this issue lies in its profound legal and political implications. The Trump administration's attempt to revoke birthright citizenship challenges a foundational tenet of U.S. constitutional law, sparking debates over national identity and immigration policy. As the Supreme Court prepares to address *Trump v. Barbara*, the case challenging the executive order, the authors argue that any effort to redefine citizenship under the flag would undermine decades of settled legal precedent. This series promises to explore the nuances of birthright citizenship, offering a deep dive into constitutional history and its modern-day applications. By revisiting the intentions of Reconstruction-era lawmakers and examining key precedents, the brothers aim to clarify the boundaries of U.S. citizenship and defend its constitutional guarantees. Their analysis not only sheds light on this contentious issue but also underscores the enduring relevance of the 14th Amendment in contemporary legal debates.

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Originally published on SCOTUSblog on 2/23/2026