Birthright Citizenship: A Rebuttal

by Kendra Mallock (July 2026)

Editor’s Note: Walter Block’s essay prompted the response that follows. In the spirit of open debate and intellectual inquiry, we are publishing both perspectives together. Dr. Block will be welcome to reply in a future issue.

Walter Block’s defense of birthright citizenship rests almost entirely on a flawed analogy. He argues that children born to illegal immigrants are analogous to enslaved Africans illegally imported into the United States after 1808. Since the enslaved committed no crime, he reasons, their descendants were rightly granted citizenship under the Fourteenth Amendment. Therefore, he concludes, the children of illegal immigrants should likewise receive citizenship.

The comparison fails for several reasons.

First, the issue before us is not whether a newborn child is morally guilty of any offense. Of course the child is innocent. The real question is whether birth on American soil automatically confers membership in the American political community. Innocence and citizenship are not the same thing. Block’s analogy to illegally imported slaves and even to a person compelled through force or coercion to commit a crime proves only that the child is innocent of any wrongdoing. That point is not in dispute. The question, however, is not whether the child deserves punishment but whether the child automatically acquires citizenship. Innocence may establish that a person has committed no offense; it does not by itself establish membership in a particular nation. Millions of innocent children are born every year outside the United States and are not American citizens.

Second, the Fourteenth Amendment was written in a very specific historical context. Its primary purpose was to ensure citizenship for the formerly enslaved population after the Civil War. Those individuals had been brought here involuntarily, often generations earlier, and had no other national allegiance. They constituted a permanent population living under the full authority of American law.

Illegal immigrants are different. They voluntarily entered the United States in violation of immigration laws or remained after their legal status expired. Their presence is temporary or unlawful. Their children are born into families whose connection to the United States exists only because immigration laws were violated or circumvented.

Third, the phrase “subject to the jurisdiction thereof” was not inserted accidentally. If mere physical presence were sufficient, those words would be unnecessary. The framers could simply have written that anyone born in the United States is a citizen. Instead, they added a qualification. Many scholars argue that this qualification referred not merely to being subject to American criminal laws, but to owing complete political allegiance to the United States. Defenders of birthright citizenship often point to the Supreme Court’s 1898 decision in United States v. Wong Kim Ark, which held that a child born in the United States to legally resident Chinese parents was a citizen under the Fourteenth Amendment. However, that case did not involve parents who entered or remained in the country unlawfully. Whether its reasoning extends to the children of illegal immigrants remains a matter of continuing legal and constitutional debate.

This interpretation explains why children of foreign diplomats were excluded. Diplomats are physically present in the United States, yet their children are not automatically citizens because their parents retain political allegiance elsewhere. The same principle can be extended to those who remain citizens of another nation while residing here unlawfully or temporarily.

Fourth, citizenship is not just a legal status; it is membership in a nation. Every nation has the right to determine who belongs to it. Most countries in the world do not grant automatic citizenship simply because a child is born within their borders. The United States is increasingly unusual in doing so. If automatic birthright citizenship were a self-evident requirement of justice, one would expect it to be the norm among democratic nations. Yet many stable, free, and prosperous countries reject that principle and instead tie citizenship partly or entirely to the status, allegiance, or residency of the parents. The question, therefore, is not whether America is choosing between justice and injustice, but which of several legitimate understandings of national membership it should adopt.

Block’s argument also ignores the practical consequences of unrestricted birthright citizenship. A child born in the United States can later sponsor parents and other relatives for immigration benefits. This creates incentives for illegal entry and so-called “birth tourism.” The result is that a temporary or unlawful presence can eventually become permanent through a chain of legal claims rooted solely in the location of a birth.

Critics often respond that deporting citizen children alongside deported parents is cruel. Yet every nation routinely requires minor children to accompany parents when families relocate. If foreign nationals are removed from the United States, their children may accompany them and remain together as a family. The government is not separating the family; it is enforcing immigration law against those who violated it.

The fundamental issue is therefore not punishment of children. It is whether the children of those who entered or remained in the country unlawfully automatically acquire a constitutional claim to permanent membership in the American nation. President Trump argues that they do not. Whatever one thinks of his broader immigration policies, that position is neither irrational nor contrary to a serious reading of the Constitution.

The burden rests on defenders of automatic birthright citizenship to prove that the Fourteenth Amendment was intended to confer citizenship on the children of people who entered the country unlawfully. That proposition is far less obvious than its advocates often assume.

Block’s essay treats the birthright citizenship question almost entirely as a matter of individual innocence. But citizenship law is generally not about innocence or guilt. A newborn born in Canada, France, Japan, or Egypt is innocent too. The legal question is whether citizenship follows birthplace alone or whether it depends upon the political status and allegiance of the parents. That’s the question Trump and his supporters are actually raising, and Block largely sidesteps it by focusing on moral innocence.

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