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The Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution seems quite simple. Yet it is embroiled in one of the most contentious constitutional battles of our time: birthright citizenship. In The Myth of Birthright Citizenship, Richard A. Epstein explains what the Constitution actually says about citizenship—and what it doesn’t.
Many believe that the Citizenship Clause bestows citizenship upon anyone born in the United States, but Epstein explains why this understanding is profoundly wrong. On the contrary, acquiring citizenship requires one to be “subject to the jurisdiction” of a sovereign—or to offer loyalty in exchange for protection. It is not sufficient to obtain citizenship by simply living “within [the] jurisdiction” of a state. Therefore, mere birth of an alien in the U.S. does not grant him citizenship but only allows him, as a minor, to be naturalized when his parents are naturalized.
Epstein’s powerful evidence for this position comes from a close textual analysis of the Constitution. It is enriched by a study of the overlooked Naturalization Acts from 1790 to 1870; the writings of such giants as William Blackstone and Emmerich de Vattel before the American Revolution; the mixed reception of English practice in America after the Revolutionary War at both the state and federal levels; and the case law and institutional practices in this country both before and after the Civil War, which include a study of black and Chinese naturalization history.
The book also examines how earlier debates over birthright citizenship have helped shape the evolution of constitutional doctrine throughout the twentieth century on such key questions as voting rights, segregated schools, takings, taxation, and unconstitutional conditions. It further examines the responses of judges and commentators to President Trump’s January 20, 2025, executive order prohibiting the executive branch from issuing documents recognizing the citizenship of those claiming birthright citizenship.
Anyone interested in the meaning of American citizenship will have to wrestle with Richard Epstein’s unique and provocative critique of birthright.
—John Yoo, Emanuel S. Heller Chair in Law, Distinguished Professor of Law,
University of California at Berkeley
Richard Epstein has marshalled his knowledge, meticulousness, and impeccable logic, to add his name to the growing number of scholars who recognize that the 14th Amendment’s Citizenship Clause does not confer automatic citizenship on the children of illegal aliens or temporary visitors. Epstein’s work exposes how following the old English feudal rule of jus soli deviates from the original intent of those who drafted and ratified the 14th Amendment – a major contribution to the debate.
—John Eastman, Senior Fellow, The Claremont Institute
A common reaction to the writings of the conservative legal scholar Richard A. Epstein is that they are simultaneously outrageous and completely convincing.
— The New York Times Book Review
Richard A. Epstein, a law professor at the University of Chicago, is one of the stars in the firmament of conservative intellectuals.
— The New York Times Book Review