By Susan Martin, professor emerita, Georgetown University

On the first day of his administration, Donald Trump issued an Executive Order affecting a cherished part of the American identity — birthright citizenship. Otherwise known as Jus Soli, birthright citizenship guarantees that all persons born on the territory of the United States are automatically U.S. citizens. There are exceptions, but these apply to only a few groups of people. For example, the children of diplomats from foreign countries are not eligible for birthright citizenship because their parents are not under the legal jurisdiction of the United States. As diplomats, they have immunity from prosecution for crimes committed on American soil, as do U.S. diplomats in foreign countries.

The Executive Order would apply to a broad range of persons living in the United States. Only children with one parent who is already a citizen or a legal permanent resident would be eligible for birthright citizenship. If both parents are undocumented, their children born in the United States would not be eligible for citizenship. In addition, the children of those who have temporary visas would also by barred from birthright citizenship, even if these visas allow them to become permanent residents — a process that can take many years.

Birthright citizenship dates to the colonial period. The 1606 Charter for Virginia, the first British colony, stated that “children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations, shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions.” It was not until the 14th Amendment to the Constitution was ratified in 1868 that birthright citizenship was extended to all persons born in the United States.

The first section of the 14th Amendment addressed both birthright citizenship and due process:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The first challenge to the birthright citizenship clause came in the 1890s when Wong Kim Ark, a San Francisco-born child of Chinese immigrants, tried to return to California after visiting China. During this period, Chinese immigrants were barred from becoming naturalized citizens. The lawsuit that followed argued that this exclusion did not apply to U.S.-born children who were automatically citizens under the 14th Amendment. In 1898, the Supreme Court agreed with Wong Kim Ark, stating, “The American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.” This case reinforced that the 14th Amendment applied to all persons born in the United States, regardless of the legal status of their parents.

The reasons to maintain birthright citizenship go well beyond the Constitution. There are also practical reasons to continue to recognize all persons born in the United States as citizens. Countries that provide citizenship solely based on the alternative, Jus Sanguinous — that is, based on the citizenship of their parents — often find themselves with multiple generations of people born and living in the country who do not have full rights. They can never become citizens because their great-grandparents came illegally or as temporary workers who were later given permission to remain in the country. This often leads to second-class noncitizens. One of the reasons that the United States has been able to integrate immigrants historically and now is because being an immigrant is a one-generation phenomenon, not a permanent status. The children of immigrants born in this country are Americans from birth onward. They can claim all of the rights and responsibilities as citizens. Incidentally, the United States also grants citizenship via Jus Sanguinous, allowing the children of U.S. citizens born abroad to be registered as citizens.

Hopefully, the Supreme Court will back the unanimous decisions to date of the lower courts hearing challenges to the Executive Orders, and Congress will refrain from enacting legislation that could put birthright citizenship at risk. Otherwise, the United States will lose an important part of our heritage — citizenship based not on who your parents are but who you are.