We Celebrate the Constitution and Citizenship at a Time When Both Are Under Attack

Constitution Day, observed each year on September 17th, commemorates the day in 1787 when the delegates to the Constitutional Convention gathered in Philadelphia to sign what would become the original articles of our national charter. Of course, when we celebrate the Constitution today, we celebrate not only the document signed centuries ago, but the whole Constitution, which has been amended numerous times by We the People, making our nation incrementally freer, fairer, and more inclusive. Constitution Day's full name, according to statute, is "Constitution Day and Citizenship Day." This year, both the Constitution and core concepts of citizenship are under attack, and they deserve our attention and protection more than ever.

Beginning in the first Trump administration, President Trump mused about limiting the Constitution's birthright citizenship provision through executive order. Then, as now, legal experts have described why such an attempt would be at odds with the Constitution's text and history. Nonetheless, in January 2025, President Trump issued an executive order purporting to limit birthright citizenship to children who have at least one parent who is a citizen or is lawfully admitted for permanent residence. This ignores the Fourteenth Amendment text, which states "[a]ll 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." As the Constitutional Accountability Center, for which I work, explained in an amicus brief we filed on behalf of an ideologically diverse group of constitutional law and immigration scholars in litigation challenging the Trump executive order, the Fourteenth Amendment's enactment history makes clear that the Amendment means exactly what it says. Indeed, its Framers were well aware that the provision would grant citizenship to children whose parents were not citizens, including parents who were either in the country unlawfully or who did not intend to stay permanently.

While the Trump administration has attempted to whittle away citizenship in one context, it has fallen over itself to deploy citizenship to try to limit other constitutional rights. For instance, in the context of mass deportation plans, multiple Trump administration officials have opined that unlike citizens, noncitizen immigrants are not entitled to constitutional due process. The Constitution says no such thing. The Due Process Clause of both the Fifth and Fourteenth Amendments does not limit its protections to citizens, saying that "no person" shall "be deprived of life, liberty, or property, without due process of law." Even one of the most widely criticized shadow docket rulings from the Supreme Court-issued in the context of removals pursuant to President Trump's invocation of the Alien Enemies Act-took care to note that every detainee has a right to meaningful notice and the chance to challenge one's detention and removal before a judge.

President Trump has also tried to graft citizenship onto unrelated constitutional provisions, such as those relating to the Census. The first Trump Administration's attempt to add a citizenship question to the 2020 Census was halted in 2019 by the Supreme Court. Now Trump has announced that he has instructed the Commerce Department to work on a new Census, and has reportedly suggested in social media posts that the new Census would exclude undocumented immigrants. It's unclear whether this would be for the 2030 Census or some unprecedented, irregularly timed Census to take place before 2030. What is clear is that any such alteration would fly in the face the Fourteenth Amendment requirement that the Census count the "whole number of persons in each state." Equally clear is the Constitution's assignment of significant Census decisions to Congress, not the President, something that even some high-ranking Trump administration officials have conceded.

And of course, these are only a few examples. Needless to say, if you care about the Constitution and citizenship, you should be concerned. Constitutional concepts of citizenship lie at the heart of who is considered part of the American family and how they participate in our democracy. When the Constitution's text and its embedded concepts of citizenship aren't protected, all Americans-irrespective of immigration status, citizenship, or political party affiliation-are harmed. The lower courts have had a strong record of halting some of the most egregious examples of unconstitutional Trump administration policies. This effort in the courts is essential, but it might not be sufficient. The Constitution and its core citizenship concepts will need to be defended by Congress and the American public, too. Our future depends on it.

Birthright citizenship, Civil rights, Deportation, Detention and Access to Justice, Equality and Liberty, Executive Order, Immigration, Rights of Detainees