Is birthright citizenship good for America?

• Author: Stock, Margaret D.
• Position: Essay

The Declaration of Independence famously asserted that "all men are created equal," but this assertion did not become an American constitutional reality until the Fourteenth Amendment was ratified in 1868. The Fourteenth Amendment's Citizenship Clause--intended to overturn the infamous U.S. Supreme Court decision in the Dred Scott (1S57) case--states that "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." Traditionally, the clause has been interpreted to confer U.S. citizenship on anyone born within the United States whose parents are subject to U.S. civil and criminal laws which has historically meant that only babies born in the United States to diplomats, invading armies, or within certain sovereign Native American tribes have been excluded from birthright American citizenship. Alarmed by the thought that unauthorized immigrants, wealthy tourists, and temporary workers are giving birth to thousands of U.S. citizens, some want to change the long-standing rule by reinterpreting or amending the Citizenship Clause. But will this proposed change be good for America? Will it benefit America to reduce substantially the number of birthright U.S. citizens--and put in place more complex rules that would provide that U.S.-born babies are not created equal?

A Brief History of the U.S. Birthright Citizenship Rule

At the time of the ratification of the U.S. Constitution in 1790, the new United States recognized three different paths to American citizenship: First, a person could be born a foreigner and later apply to become a U.S. citizen through the naturalization process; this pathway fell under Congress's power to create a "uniform rule of naturalization," as stated in Article I, Section 8 of the U.S. Constitution. Second, following the international law rule, a person might inherit citizenship from his or her citizen parents; this pathway--termed the jus sanguinis or the citizenship by blood or descent rule--was thought to be within the naturalization power of Congress as well, and was first permitted when Congress passed the Naturalization Act of 1790, which accorded "natural born citizen" status to the foreign-born children of certain U.S. citizens. (1) Finally, however, the United States also adopted the British common-law rule of jus soli (law of the soil) for persons born within the territorial jurisdiction of the United States whose parents were subject to U.S. civil and criminal laws. Thus, in the 1844 New York state court case of Lynch v. Clarke (1844), Judge Lewis Sandford wrote,

I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural bona citizen. The entire silence of the constitution in regard to it, furnishes a strong confirmation, not only that the existing law of the states was entirely uniform, but that there was no intention to abrogate or change it. The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle ... The only standard which then existed ... was the rule of the common law, and no different standard has been adopted since. In 1857, however, in the case of Sandford v. Scott (commonly termed the Dred Scott case), the U.S. Supreme Court determined that these three pathways to U.S. citizenship were not open to persons of African descent. Moreover, said the Court, these pathways could never be open to Africans or their descendants--as a matter of constitutional law, the Court said, the original political community in America had never consented to the inclusion of Africans as full members of that community, (2) and so Africans and their descendants were forever barred from U.S. citizenship. In reaching its decision, the Supreme Court held that mere birth on U.S. soil was not enough to confer U.S. citizenship; one also had to show that the political community had consented to one's presence.

After the Civil War, the Dred Scott decision was explicitly reversed, first through passage of the Civil Rights Act of 1866, and then as a matter of constitutional law by the Fourteenth Amendment's Citizenship Clause. The wording of the two enactments differed; the Civil Rights Act granted U.S. citizenship to persons born in the United States who were "not subject to any foreign power;" in contrast, the Fourteenth Amendment's Citizenship Clause granted citizenship to the broader class of those "subject to the jurisdiction." During debates over passage of both measures, however, there was vigorous discussion over the coverage of the Citizenship Clause--and the fact that it applied to the children of foreigners, even if those foreigners were in the United States in violation of various laws. (3) Sen. Edgar Cowan of Pennsylvania, for example, expressed concern that the Citizenship Clause would expand the number of Chinese and Gypsies in America by granting birthright citizenship to their children, although the parents owed no "allegiance" to the United States and were committing "trespass" by being in file United States. Arguing against him, supporters of the Citizenship Clause defended the right of these children to be U.S. citizens at birth. Both sides in the debate agreed that the Clause would extend U.S. birthright citizenship to the children born in the United States to foreigners who were subject to U.S. civil and criminal laws--excluding only the children of foreign diplomats, invading armies, and sovereign Native American tribes (Ho 2006).

Following ratification of the Fourteenth Amendment, the U.S. Supreme Court consistently followed this interpretation of the Citizenship Clause (there was a passing comment in the Slaughterhouse eases [1873] that has caused some to argue otherwise, but Slaughterhouse was not a birthright citizenship or immigration case). As conflicts over Asian immigration arose in the western United States in the late 1800s, however, some government officials began to deny the rights of U.S. citizenship to U.S.-born children of Chinese descent. Thus, in 1898, the U.S. Supreme Court had occasion--in the Wong Kim Ark decision--to confirm unequivocally that birthright citizenship belonged to any child born within the territorial jurisdiction of the United States, as long as the child--at the time of his or her birth on U.S. soil--was subject to U.S. civil and criminal laws. The Court held that an American-born child of Chinese immigrants was entitled to citizenship because the "Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory ... including 'all children here born of resident 'aliens" (Wong Kim Ark 1898). The net result, then, was that following passage of the Fourteenth Amendment, and excepting certain Native Americans, the U.S. government recognized all non-diplomatic persons born within the territorial jurisdiction to be U.S. citizens, regardless of their parentage. The U.S. Department of State began issuing U.S. passports to 'all such children--unless their parents were diplomats who held immunity from U.S. cM1 and criminal laws. Congress also passed a number of statutes recognizing the extension of birthright citizenship to persons born within newly acquired U.S. territories, including Alaska, Hawaii, Guam, Puerto Rico, and the U.S. Virgin Islands. More recently, in Plyler v. Doe (1982), the U.S. Supreme Court stated that the Fourteenth Amendment extends to anyone "who is subject to the laws of a state," including the U.S.-born children of unauthorized immigrants. Similarly, in Immigration and Naturalization Service v. Rios-Pineda (1985), the Court stated that a child born on U.S. soil to an unauthorized immigrant parent is a U.S. citizen from birth.

In the mid-1980s, however, as immigration laws tightened and unauthorized immigration to the United States increased to record levels, Yale scholars Peter Schuck and Rogers Smith (1985) published Citizenship without Consent, a book in which they argued that America should move away from its historic birthright citizenship rule. Schuck and Smith said that a rule of "citizenship by consent"-the opposite of a rule that confers citizenship automatically on children born within American territory--was a more appropriate rule for the modern American polity. Although they acknowledged that the American birthright citizenship rule was familiar, easy to apply, and more inclusive than a consensual rule, they argued that it was "anomalous as a key constitutive element of a liberal political system" because an individual's citizenship was determined by the location of his or her birth, and not by the consent of the individual and the society in which he or she sought citizenship (Schuck and Smith 1985: 90). They further argued that the Fourteenth Amendment phrase "subject to the jurisdiction" could be reinterpreted by congressional statute or by the U.S. Supreme Court to adopt the consent theory and thereby exclude the children of unauthorized immigrants from U.S. citizenship. The arguments raised by Schuck and Smith were later seized upon by others, and have today become a centerpiece in current immigration debates. Most recently, Republican presidential candidates Tim Pawlenty and Herman Cain attempted to distinguish themselves from other candidates for their party's presidential nomination by expressing...