“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.” –the 14th Amendment to the U.S. Constitution, Section 1
Ratified in 1868, the 14th Amendment contains several provisions. Recently, one of its most controversial is Section 1, conferring citizenship on any person born in the U.S. The key caveat, as is clear above, is that those born here must be “subject to the jurisdiction” of the U.S.
The day he took office on Jan. 20, President Trump drastically transformed the U.S. government, but his most outlandish move was to end birthright citizenship, precisely what the amendment protects. If he is successful, which is at this point highly doubtful, the lives of several thousand Brazilian families on the Island will be uprooted.
According to The MV Times, the Brazilian population “is estimated to be 20 percent of the Island’s year-round population.” This represents some 4,000 people out of a total population of some 20,000 people.
Many of our Brazilian neighbors have children born here. The MV Times estimates that “roughly a third of all babies born at the Martha’s Vineyard Hospital are of Brazilian descent.” Under common law, known by the principle of jus soli (literally, “the right of soil”), and the 14th Amendment, they are legal U,S. citizens.
The MV Times also reported that ironically, more than 50 percent of Islanders of Brazilian heritage supported Donald Trump for president: “There is a significant level of support by Brazilians for President Trump, and a general acceptance of his policies — even his immigration reform efforts. This would likely surprise many people across America, and even right here, on an Island.”
President Trump questions whether children of immigrant parents are “subject to the jurisdiction” of the U.S. In fact, the Supreme Court definitively answered this question in 1898. In United States v. Wong Kim Ark, a man named Wong Kim Ark was born in the U.S. to Chinese immigrant parents. They did not have U.S. citizenship. When Wong returned from a visit to China to see relatives, border agents denied him entry because the immigration officer thought he was not “subject to the jurisdiction of the U.S.” because of his parents’ ancestry.
After Wong sued, he won his case when it reached the Supreme Court, which ruled that Wong was neither engaged in the Chinese diplomatic service nor subject to Chinese jurisdiction. He was a U.S. citizen by virtue of having been born on U.S. soil. Since the end of January 2025, four federal district court judges have ruled that Trump’s executive order is a constitutional violation.
One of these, Washington State Judge John C. Coughenour, was appointed by President Ronald Reagan. Judge Coughenour called Trump’s executive order “blatantly unconstitutional.” He held, “It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain. Nevertheless, in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow.”
The issue will inevitably reach the U.S. Supreme Court.
The practical consequences of denying birthright citizenship are manifold. Take, for example, this scenario: Four people decide, as four in fact did in November 2022, to rob a branch of the Rockland Trust Bank. Consider that two of them were born in the U.S. of immigrant parents. Once arrested, are they subject to the jurisdiction of the U.S.? Bank robbery is a federal crime. If they are not subject to U.S. jurisdiction, must they be sent to another country for trial? Or can they just get away with the crime?
Do people born in the U.S. of immigrant parents have to pay federal taxes if they are not “subject to the jurisdiction” of the U.S.? Do they have any obligations whatsoever to obey federal law?
Some 65 countries have birthright citizenship, about half with no restrictions, including the U.S. This is a common mechanism for nations to welcome immigrants to their country. The U.S. has a long, heralded tradition in recognizing those born here as Americans. It must continue, and the Supreme Court should agree whenever it rules on the issue.
Jack Fruchtman, who lives in Aquinnah, is the author of “American Constitutional History: A Brief Introduction” (second edition, 2022) and “The Supreme Court and Constitutional Law” (fourth edition, 2025).
