What Will Happen to Birthright Citizenship?

Summary

Radio Atlantic — "What Will Happen to Birthright Citizenship?"

Date: June 22, 2026
Host: Adam Harris
Guest: Adam Serwer, Atlantic staff writer

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Episode Overview

This episode of Radio Atlantic tackles the Supreme Court case that could radically alter birthright citizenship in the United States—for the first time in over 150 years. Host Adam Harris and guest Adam Serwer, a journalist who covers courts and politics, trace the legal and historical roots of the citizenship clause in the 14th Amendment, scrutinize the arguments for and against changing it, and consider its implications for American democracy and identity. The discussion aims to cut through political spin and clarify the stakes for listeners.

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Key Discussion Points & Insights

1. The Origins and Intent of Birthright Citizenship

[03:44]–[07:08]

• Historical Roots: Birthright citizenship is described as "a centuries old principle in Anglo American law" (Adam Serwer, [03:44]). But the 14th Amendment's ratification after the Civil War was meant to "make real the promise of the Declaration of Independence that all men are created equal."
• Rejection of Exclusivity: The amendment was a deliberate rejection of the idea that America is a "white man's country." Serwer recalls that John Bingham, a primary author, called it “to get rid of the horrid blasphemy that America is a white man's country.”
• Wong Kim Ark Precedent: Even the “Plessy Court”—which decided Plessy v. Ferguson, legalizing segregation—upheld that someone born in the U.S., regardless of race or origin (e.g., a child of Chinese immigrants), is a citizen.

Quote:

“The people who wrote the 14th Amendment did not believe that [America is a white man's country]. They insisted that that was wrong and they inscribed the equality of man into the Constitution in a much more sincere way than the original founders.”
— Adam Serwer, [04:36]

2. The Trump Administration’s Challenge

[07:13]–[09:17]

• Executive Order: On his first day back in office in 2025, President Trump signed an executive order to restrict citizenship for children born on U.S. soil to undocumented or temporary-status parents.
• Ideological Motive: Serwer: “This administration, as an ideological principle, thinks that this is a white man's country. And as long as the birthright citizenship clause exists, that principle cannot be fulfilled.” ([07:19])
• Demographic Engineering: The move is framed as part of a broader effort to “make the country whiter” and perhaps to “nullify all of the Civil War amendments.”
• Supreme Court’s Reception: Initial signs from oral arguments suggest the justices may not be receptive, with Chief Justice Roberts stating: “It's a new world, it's the same Constitution.” ([08:47])

Quote:

"The conservative majority on the court favors a very narrow interpretation of the Civil War amendments. And that is convenient for the Trump administration, which wants to engage in overt racial discrimination."
— Adam Serwer, [09:06]

3. The Meaning of "Subject to the Jurisdiction Thereof"

[10:33]–[13:07]

• Original Meaning: Anti-birthright arguments claim the phrase means more than physical presence; it requires “allegiance,” thereby excluding children of undocumented or temporary immigrants.
• Legal Tradition: Serwer rejects this as “ahistoric.” The only exceptions historically were children of foreign diplomats and members of Native American nations.
• Modern Concept of Illegal Immigration: The notion didn’t exist at the time. Serwer connects these arguments to the longstanding racist restrictions in U.S. immigration history (e.g., the Chinese Exclusion Act) and points to Stephen Miller's ideology as fueling the challenge.

Quote:

“It's a sort of extraordinarily out in the open here as to what the purpose of what they're trying to do is. Their view is that America is based on a very specific ethno-religious tradition, and so the diversity of the country is destroying the America that they understand to be real America.”
— Adam Serwer, [12:50]

4. Can the Social Contract Be Changed This Way?

[13:35]–[14:50]

• Amendment vs. Executive Action: Serwer says if you want to change the collective agreement or “social contract,” the legitimate way is to pass a constitutional amendment—not to have the Court reinterpret existing ones at the executive branch’s behest.
• Historical Context: References the “second founding” concept from historian Eric Foner, underscoring that constitutional amendments are the real mechanism for national change.

Quote:

“The solution to fix the problems that you see with our collective social contract is to amend the Constitution... But instead what the Trump administration is doing is demanding that the Supreme Court rewrite and nullify the Reconstruction amendments by fiat...”
— Adam Serwer, [14:42]

5. Consequences of Ending Birthright Citizenship

[15:05]–[17:26]

• Logistical Chaos: Serwer warns that revoking birthright citizenship would create “absolute chaos”—not just for undocumented families, but for everyone, requiring all babies to “prove” their citizenship at birth.
• Potential for Statelessness: He outlines the dangers of statelessness, citing Jews in postwar Europe as a historical example: “You basically have no rights, right?... It creates a class of people who can be abused and mistreated, you know, with no recourse. And that's a monstrous thing.” ([16:30])

Quote:

“It's total chaos. You have to show your papers, your parents have to show your papers at birth. It would be a genuinely insane thing that would create all kinds of bureaucratic problems, headaches... it's a bad idea from a policy, logistical point of view, in addition to being in, you know, a thoroughly amoral thing.”
— Adam Serwer, [15:14]

6. What It Means for the American Experiment

[17:26]–[19:30]

• Multiracial Democracy’s Fragility: Serwer notes that true multiracial democracy in the U.S. has existed only since the mid-20th century with the end of overt legal discrimination and the passage of the 1965 Voting Rights Act.
• Shattering Bipartisan Consensus: Repealing or weakening birthright citizenship would dismantle universalist ideals that were once mainstream—even quoting Reagan:

  "Anyone from any corner of the earth can come to live in America and become an American." ([18:42])

• Wider Implications: Requires everyone—not just immigrants—to “prove” citizenship, undermining rights for all.

Quote:

“The shattering of that consensus, I think, has tremendous implications, not just for the freedoms of people who are not considered fully American, but I think pretty much everybody, because as a result of those kinds of rules force everybody else to prove their citizenship and... that they are entitled to the rights due them under the Constitution as well.”
— Adam Serwer, [19:00]

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Notable Quotes & Memorable Moments

• On the Court’s Signaling:

  “Roberts said something along the lines of, well, it's a new world, it's the same Constitution.”
  — [08:47]

• On the Social Contract:

  “13th, 14th and 15th amendments were examples of the American social contract being rewritten...our laws sort of refle[ct] better the moral agreement that we had at the time.”
  — Unidentified Speaker, [13:07]

• On Birthright Citizenship as Core Identity:

  "I really think to some extent this is a project...of essentially nullifying all of the Civil War amendments."
  — Adam Serwer, [07:56]

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Timestamps of Important Segments

• Founding and Philosophy of Birthright Citizenship: [03:44]–[07:08]
• Trump’s Challenge and Supreme Court Dynamics: [07:13]–[09:17]
• Legal Arguments about “Jurisdiction”: [10:33]–[13:07]
• Social Contract and Amending the Constitution: [13:35]–[14:50]
• Practical & Human Consequences: [15:05]–[17:26]
• Impact on American Democracy and Identity: [17:26]–[19:30]

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Conclusion

The episode delivers a nuanced but urgent analysis of the birthright citizenship debate, anchoring it in constitutional history, legal precedent, and the evolving definition of what it means to be an American. Through clear-eyed discussion, Adam Harris and Adam Serwer warn of the logistical chaos and moral hazard of abolishing birthright citizenship, and argue that such a move would mark a sharp reversal in the nation’s democratic project, threatening its universalist traditions and millions of lives.

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Transcript

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[Adam Serwer]

So you think about today's discourse about birthright citizenship and these sometimes veiled, sometimes overt assertions that America is a white man's. You know, the people who wrote the 14th Amendment did not believe that. They insisted that that was wrong, and they inscribed the equality of man into the Constitution in a much more sincere way than the original founders.

[Adam Harris]

I'm Adam Harris, this is Radio Atlantic, and this is our first Monday episode of the show. And today we need to talk about birthright citizenship. The Supreme Court has before it a case that could redefine who gets to be an American. That's not hyperbole.

[Unidentified Speaker (possibly a guest or co-host)]

So really, at the end of the

[Adam Serwer]

day, then, this is a straight up constitutional ruling you want from this court. Win, lose, or draw.

[Adam Harris]

The citizenship clause of the 14th Amendment to the United States Constitution is brief, 28 words. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and and the states wherein they reside. For More than 150 years since the amendment was ratified and adopted in July 1868, the clause has animated a basic idea. If you are born in the United States, then barring very rare circumstances, you are a United States citizen. On President Trump's first day in office in January 2025, he signed an executive order called Protecting the Meaning and Value of American Citizenship. The order would deny citizenship to babies whose parents did not have legal status in the US or whose parents are only in the country temporarily. States sued immediately. The 14th Amendment says what it means, and it means what it says. If you're born on American soil, you are an American. Period. Full stop. There is no legitimate legal debate on this question, Connecticut Attorney General William Tong said at the time. The Supreme Court, which only takes up about 1% of the thousands of petitions it receives each year decided to hear the case anyway. They listen to oral arguments this April, and soon they'll decide whether the law is constitutional. Will the justices go against the precedent the Court set a century ago? And what does it say that the justices are even considering a challenge to birthright citizenship in the first place? With me to discuss all of this is my colleague Adam Serwer, who writes about the courts and politics at the Atlantic. Let's get to questions. Adam, thanks so much for joining me.

[Adam Serwer]

Thanks so much for having me.

[Adam Harris]

Can you set the scene for us?

[Unidentified Speaker (possibly a guest or co-host)]

Where did this idea of birthright citizenship in America come from?

[Adam Serwer]

So birthright citizenship is a centuries old principle in Anglo American law, which is obviously from where the American system is designed. But the specific aim of the 14th Amendment was to make real the promise of the Declaration of Independence that all men are created equal. And obviously prior to the Civil War, Roger Taney and the Taney Corps decide Dred Scott v. Stanford, where they say that black people can never be citizens of the United States. But this was a longstanding argument. There were people like John Calhoun who said obviously in the Declaration of Independence, all men did not refer to black men. When I was in middle school, I had a teacher who explained to me that all men in the Declaration of Independence meant all white men with property. And that is a very narrow interpretation, but in effect, that's how it worked in the beginning. But the author of the 14th Amendment, or one of the authors of the 14th Amendment, John Bingham, he said the purpose of this is to get rid of the horrid blasphemy that America is a white man's country. So you think about today's discourse about birthright citizenship and these sometimes veiled, sometimes overt assertions that America is a white man's country. The people who wrote the 14th Amendment did not believe that. They insisted that that was wrong and they inscribed the equality of man into the Constitution in a much more sincere way than the original founders. But the purpose of birthright citizenship was to make America, as Frederick Douglass might have put it, right with itself. He's to say that all that is needed to fix America is for the country to get right with itself, to fulfill its own lofty ideals. And that was what the 14th amendment was meant to do.

[Unidentified Speaker (possibly a guest or co-host)]

So when you think about those lofty ideals, when you consider that we've sort of grown with this belief that America is this sort of melting pot, the idea of birthright citizenship is one of those things that really made it a melting pot as opposed to just the ideal of a melting pot.

[Adam Serwer]

Yeah, I think that's right. I mean, there were a few Republicans who were angry about the possibility of, you know, they would say things like, oh, you're going to let Chinese men become American citizens? And they were like, yeah, yeah. You know, it's the only way to do this, it's the only way to make this not a white man's country, is to say, you know, it doesn't matter where you're from, it doesn't matter what the color of your skin is. It doesn't matter what your ethnic background is. If you were born in America, you are an American, except in these very narrow instances, you know, the child of a foreign diplomat. Native American nations, which were considered, you know, obviously separate from the United States at the time. And that interpretation was so widely shared that the court that decided Plessy versus Ferguson, the, you know, the decision that legalized Jim Crow in the United States, they decided in Wong Kim Ark that the fact that, you know, someone was Chinese did not prevent them from being a citizen if they were born in the United States.

[Unidentified Speaker (possibly a guest or co-host)]

President Trump's the first sitting president in US History to attend oral arguments at the Supreme Court.

[Adam Harris]

He did that for this case in Trump versus Barbara.

[Unidentified Speaker (possibly a guest or co-host)]

So why is the administration challenging birthright citizenship?

[Adam Serwer]

I think this administration, as an ideological principle, thinks that this is a white man's country. And as long as the birthright citizenship clause exists, that principle cannot be fulfilled. And the reason is, you know, obviously, if. If. If you. All you need to be an American is to be born here, then that applies to everybody, regardless of race. And this administration has been, you know, evolved in what is essentially a gigantic demographic engineering project with its, quote, unquote, mass deportation and attempt to make the country wider. So, you know, I really think to some extent this is a project, a larger. I mean, we're talking about birthright citizenship, which is really important. But I really do think this is a larger project of essentially nullifying all of the Civil War amendments. I think the Roberts court, and I should be clear, I don't know that they're going to side with Donald Trump on birthright citizenship. There were some indications on oral arguments that they did not take that argument very seriously. You know, John Roberts said something, you know, the attorney arguing in favor of, you know, Trump's interpretation of the birthright citizenship clause. He said something about, like, times have changed.

[Unidentified Speaker (possibly a guest or co-host)]

We're in a new world now, as

[Adam Harris]

Justice Alito pointed out, to where 8 billion people are one plane ride away

[Unidentified Speaker (possibly a guest or co-host)]

from having a child who's a U.S. citizen.

[Adam Serwer]

And Roberts said something along the lines of, well, it's a new world, it's the same Constitution. So that may be an indication that the court is at least not going to buy this one. And I think ideologically, you know, the conservative majority on the court favors a very narrow interpretation of the Civil War amendments. And that is convenient for the Trump administration, which wants to engage in overt racial discrimination. Overt racial and religious discrimination, I would argue.

[Adam Harris]

After the break, we talk about the arguments for changing the birthright citizenship law and how it would actually work.

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[Adam Serwer]

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[Adam Harris]

So, Adam, the arguments against the 14th

[Unidentified Speaker (possibly a guest or co-host)]

Amendment hinge on an interpretation of the phrase and subject to the jurisdiction thereof and the citizenship clause of the law. And opponents argue that this goes beyond mere physical presence and includes a required allegiance to the US that would exclude children born to people who are here illegally or who are here legally but temporarily. So people on temporary visas. So what do you make of that argument?

[Adam Serwer]

It is an ahistoric argument that exists largely because of the Trump administration's desire to nullify the birthright citizenship clause. The birthright citizenship clause has never been interpreted this way. Again, the Plessy Court did not interpret it this way. This is a long standing principle of Anglo American law. If they were during the debates of the 14th Amendment, they were literally talking about, you know, does this really mean anybody? Except for the very narrow exceptions and the jurisdiction thereof is, you know, when we're talking about Native American nations or foreign diplomats or children of foreign diplomats, that's what that narrow exception applies to. It would not have it would have made no sense to apply it to, quote, unquote undocumented Immigrants, because that concept did not exist at the time in the same way it does now. You know, the concept of an illegal immigrant is a relatively recent one in American law. And it really starts, you know, in the 19th century with the Chinese Exclusion act and, you know, these racist restrictions on immigration to the United States. And that's not unconnected to the Trump administration because one of Trump's most prominent advisers and the architect of his immigration purge is Stephen Miller. And Miller is someone who believes that the 1965 act that repealed those racist restrictions on immigration was the thing that ruined the country. So it's really a sort of extraordinarily out in the open here as to what the purpose of what they're trying to do is. Their view is that America is a very specific ethno, is based on a very specific ethno religious tradition. And so the diversity of the country is destroying the America that they understand to be real America. And, you know, this is part of their plan to reverse that.

[Unidentified Speaker (possibly a guest or co-host)]

You know, I think a lot about one of the Atlantic contributors, early Atlantic contributors, Ralph Waldo Emerson, who says that the, the law stands to say yesterday we agreed so and so what say ye with this law today? And the, the 13th, 14th and 15th amendments were examples of the American social contract being rewritten of our laws sort of refle better the moral agreement that we had at the time.

[Adam Harris]

Is there an argument to be made

[Unidentified Speaker (possibly a guest or co-host)]

that our nation has evolved so much since the Civil War era, since Reconstruction, that the makeup of our nation has evolved so much that social contract once more needs updating?

[Adam Serwer]

I mean, look, you can make that argument. I mean, obviously Eric Foner, the eminent Civil War historian, Reconstruction historian, refers to the Reconstruction era is the second founding. And I think that's an apt description for it. But we're talking about constitutional amendments here. The solution to fix the problems that you see with our collective social contract is to amend the Constitution. There's a process for that. You can propose an amendment for whatever you think is wrong with the Constitution as it currently exists, and then if it gets ratified and added to the Constitution, then you solved your problem. But instead what the Trump administration is doing is demanding that the Supreme Court rewrite and nullify the Reconstruction amendments by fiat, by arbitrary one sided decision, essentially amending the Constitution without having to actually amend it. And that I think is not defensible or justifiable.

[Unidentified Speaker (possibly a guest or co-host)]

One question that I've had kind of growing, growing out of the arguments, the oral arguments and even before.

[Adam Harris]

Right.

[Unidentified Speaker (possibly a guest or co-host)]

It was something that had been written in the Atlantic Was basically, what would

[Adam Harris]

this even look like?

[Unidentified Speaker (possibly a guest or co-host)]

Right? Say that they try to modify the contract without a constitutional amendment. Right. They have the executive order.

[Adam Harris]

What would it even look like to

[Unidentified Speaker (possibly a guest or co-host)]

implement something like this?

[Adam Serwer]

I think one of the things that people do not appreciate about this is how much absolute chaos this would be because people think, oh, this will just hurt undocumented immigrants. No, after this, every baby born in the United States has to prove that it's a citizen in the United States. It's total chaos. You have to show your papers, your parents have to show your papers at birth. It would be a genuinely insane thing that would create all kinds of bureaucratic problems, headaches. You know, what happens if there's something goes wrong and someone's citizenship isn't proven, and then, you know, they're stateless even though their parents are American citizens. It's just. It's a bad idea from a policy, logistical point of view, in addition to being in, you know, a thoroughly amoral thing. And even though, you know, birthright citizenship is actually the rule in the Western hemisphere, you know, I understand that Donald Trump is constantly insisting that we're the only country who has it, but that's not true.

[Unidentified Speaker (possibly a guest or co-host)]

You mentioned stateless, and I think people can hear that word and not sort of pin down exactly what it means to be stateless, like the position that a stateless person is actually put into. So can you just sort of explain a little bit what it means, what

[Adam Harris]

it would mean to be a stateless person?

[Adam Serwer]

I mean, if you're a stateless person, there is absolutely. I mean, you basically have no rights, right? You have no rights except that which, you know, the people in whose custody you are see fit to give you, because there's no government that gives you a guarantee of certain particular rights. So, I mean, I think, you know, statelessness, mass statelessness, is something, you know, we haven't. Well, I don't want to be too categorical. Categorical about this, but the immediate example I think of is Jews in displaced person camps after World War II. That's a. You know, because no European country wants to take them. I mean, it's just. It creates a huge problem. You know, it creates a class of people who can be abused and mistreated, you know, with no recourse. And that's a monstrous thing.

[Adam Harris]

If the court decides to side with

[Unidentified Speaker (possibly a guest or co-host)]

the president, what does that say about where we are as a multiracial democracy 250 years on from the founding?

[Adam Serwer]

Well, what I would say is that you could really argue that America has not been a multiracial democracy for very long. Not until 1965 did everybody in America have the right to vote, regardless of race or gender. Obviously, in the early 20th century, women get the right to vote, but that vote is still prescribed by Jim Crow and by the wholesale denial of black men and black women of the right to vote in the South. So it's really only 1965 when America becomes a true multiracial democracy, on paper at least. And since then, in the past 20 years, we've seen those protections being dismantled. And I think destroying birthright citizenship is a massive piece of that project, of turning back the clock in America, rather than in the sort of universalist ideals that during the Cold War were espoused by both parties. I mean, if you go back and you look at Ronald Reagan's speeches, you know, he's saying things like, you can

[Unidentified Speaker (possibly a guest or co-host)]

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 Japanese. But anyone from any corner of the earth can come to live in America and become an American.

[Adam Serwer]

But once upon a time, that was just the established bipartisan consensus. And so the shattering of that consensus, I think, has tremendous implications, not just for the freedoms of people who are not considered fully American, but I think pretty much everybody, because as a result of those kinds of rules force everybody else to prove their citizenship and therefore that they are entitled to the rights due them under the Constitution as well.

[Unidentified Speaker (possibly a guest or co-host)]

Well, Adam, thank you so much for joining me, and we'll be watching in the days ahead.

[Adam Serwer]

Thank you so much for having me.

[Adam Harris]

That's all for today's show. Thank you again to our guest, Atlantic staff writer, Adam Sower. This episode of Radio Atlantic was produced by Mike Pisoli and engineered by Miguel Carrascal. Our music is by Rob Smerziak. Claudina Baid is the executive producer of Atlantic Audio, and Andrea Valdez is our managing editor. If you like what you saw here, new episodes of Radio Atlantic drop every Monday and Thursday. You can subscribe on the Atlantic's YouTube page on Apple or Spotify or wherever it is you get your podcast. And if you want to support this work and the work of my colleagues, you can subscribe to the [e-mail] listener. Again, that's TheAtlantic.com listener. Until next time, I'm Adam Harris.

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