Birthright citizenship in the United Kingdom and the United States: a comparative analysis of the common law basis for granting citizenship to children born of illegal immigrants.

• Author: Houston, Michael Robert W.

ABSTRACT

The common law concept of territorial birthright citizenship is the foundation for the Fourteenth Amendment's Citizenship Clause, which confers citizenship on those born within the United States and "subject" to its "jurisdiction." Likewise territorial underpinnings were the basis for over 375 years of birthright citizenship within the United Kingdom. Contemporary discourse with respect to territorial birthright citizenship, however, has shifted from its common law basis and now focuses on whether citizenship ought to inhere in children born to illegal immigrants. In the United Kingdom, the British Nationality Act of 1981 abandoned territorial birthright citizenship in favor of parentage based citizenship. The United States, however, while adopting the English common law concept of territorial birthright citizenship embodied in the Fourteenth Amendment to the U.S. Constitution, has never definitively articulated its position on children born to illegal immigrants.

Social and political controversy over the influx of illegal immigrants has increased activity aimed at altering the doctrine of territorial birthright citizenship. Efforts in the United States to legislatively redefine the Citizenship Clause to exclude children born to illegal immigrants from United States citizenship have failed and are probably unconstitutional should they succeed. This can be contrasted with the restriction of citizenship in those born to illegal immigrants. While the common law basis of the U.K.'s departure from territorial birthright citizenship is exemplified under "Parliamentary Supremacy," legislative alteration of the U.S. common law basis of territorial birthright citizenship may not occur by directly restricting the Fourteenth Amendment.

This Note investigates the development of territorial birthright citizenship in the United Kingdom and the Untied States and critiques contemporary efforts in the United States to restrict citizenship of children born to illegal immigrants. This Note concludes that while the legislative efforts in the Untied States to restrict citizenship of children of illegal immigrants may be an acceptable political policy, it is unconstitutional and, therefore, other alternatives must be explored. These alternatives, premised on Congress' broad authority under the immigration and naturalization power, are traditionally reviewed deferentially by the judiciary. Thus, it would be far more efficacious and constructive for opponents of territorial birthright citizenship to concentrate their efforts at altering current immigration and border enforcement policies, rather than pursuing patently unconstitutional efforts to redefine the Citizenship Clause.

1. INTRODUCTION

   The common law concept of citizenship by birth within a sovereign's territory (territorial birthright citizenship) is vital to the Fourteenth Amendment of the U.S. Constitution, which confers citizenship on those born within the United States and "subject" to its "jurisdiction."(1) Likewise, territorial underpinnings were the basis for over 375 years of birthright citizenship within the United Kingdom.(2) Contemporary discourse with respect to territorial birthright citizenship, however, has shifted from its common law basis and now focuses on whether citizenship inheres in children born of illegal immigrants.(3) In both the United Kingdom and the United States, this issue continues to influence cutting-edge debate with respect to questions of nationality. Furthermore, this issue has been resolved differently in these two countries, despite a shared territorial common law basis. Principles grounding territorial birthright citizenship influence contemporary discussion of how to characterize children of illegal immigrants--that is, whether to characterize them as citizens or aliens. In the United Kingdom, the British Nationality Act of 1981 eradicated the last vestiges of territorial birthright citizenship.(4) Increased political pressure to remedy the perceived problem of increased social service costs due to immigration ultimately led the United Kingdom to reject territorial birthright citizenship. Likewise, contemporary political pressure is forcing the U.S. Congress to address the issues of territorial birthright citizenship and illegal immigration along with the attendant costs and benefits. The United States, while adopting the English common law concept of territorial birthright citizenship in the Fourteenth Amendment to the U.S. Constitution, has never definitively articulated its position on children born of illegal immigrants. The question thus remains whether these children are citizens of the United States.(5)

   Social and political controversy over the influx of illegal immigrants in the United States and the United Kingdom have increased activity aimed at altering the doctrine of territorial birthright citizenship. Most opponents of territorial birthright citizenship seek to proscribe illegal immigrants' children from becoming citizens merely by virtue of birth within a country's geographic boundaries. While efforts to legislatively redefine citizenship by birth within the United States have failed and are probably unconstitutional should they succeed, the United Kingdom abolished pure territorial birthright citizenship, thus denying citizenship to children of illegal immigrants. However, while the common law basis of the United Kingdom's departure from territorial birthright citizenship is exemplified under "Parliamentary Supremacy," legislative alteration of the U.S.' common law basis of territorial birthright citizenship may not occur by restricting the definition of citizenship in the Fourteenth Amendment. This conclusion introduces a dichotomy between United States and United Kingdom legal paradigms--"Parliamentary Supremacy" in the United Kingdom provides a constitutional basis to legislatively alter territorial birthright citizenship, while limits on Congress' enforcement power under [sections] 5 of the Fourteenth Amendment and separation of powers doctrine reject such an outcome in the United States.

   Part II of this Note will investigate the development of territorial birthright citizenship both in the United Kingdom and the United States. Part III will discuss the status of children born of illegal immigrants within these two countries. Additionally, Part III will examine and critique contemporary efforts in the United States to restrict citizenship of children born of illegal immigrants. Finally, Part IV will conclude that while the legislative efforts of the United States to restrict citizenship of children of illegal immigrants may be acceptable as a political policy, it is unconstitutional and therefore other alternatives must be explored. These alternatives, while not focused on the Fourteenth Amendment's Citizenship Clause, impute broad congressional authority under the immigration and naturalization power. The impact of these alternatives affects any person considering entering the United States.

2. CONFERRING CITIZENSHIP BY BIRTHRIGHT IN ANGLO-AMERICAN LAW

   The principle of territorial birthright citizenship is the basis for citizenship law in both the United Kingdom and the United States. The U.K.'s reasons for ultimately rejecting the territorial basis of birthright citizenship in 1981 provide a useful reference point to compare against the continued adherence by the United States to territorial birthright citizenship. Additionally, because U.S. common law is rooted in English jurisprudence, analysis of the early history and development of territorial birthright citizenship in the United Kingdom is useful to provide a more complete understanding of the concept's application in the United States.

   1. The United Kingdom's Progress Toward Conferring Birthright Citizenship Based on Lineage of the Parent

      Under the British Nationality Act of 1981 (BNA), the U.K.'s rule of birthright citizenship changed from common law territorial birthright, whereby the place of birth determined citizenship, to one founded on the parent's citizenship.(6) The foundation of the common law, while contrary to current British policy, establishes both the U.K.'s historical frame of reference for its ultimate rejection of the territorial birthright principle and the theoretical underpinning of the U.S. Constitution's Fourteenth Amendment Citizenship Clause.

      1. Exposition of the Territorial Birthright Citizenship Principle: Calvin's Case

         Calvin v. Smith (Calvin's Case), decided in 1608, established the seminal exposition of territorial birthright citizenship.(7) The question in Calvin's Case was "whether Robert Calvin ... (being born in Scotland since the Crown of England descended to His Majesty) be an alien born, and consequently disabled to bring any real or personal action for any lands within the realm of England."(8) Prior to Calvin's birth,(9) the crown of England passed to Scotland's King James IV. The defendants posited that because the king held the crowns of England, Scotland, Ireland, and France, and had several distinct political capacities in several kingdoms, the ligeance(10) of each separate political unit was "several and divided."(11) Therefore, according to the defendants, Calvin was an alien(12) to James's crown in England, though not in Scotland, and unable to seek redress in English court for land in England.(13)

         Lord Coke, writing for the court, rejected the defendants' argument.(14) He determined that persons born in Scotland subsequent to the English crown's descent to James IV of Scotland were not aliens in England but natural born subjects.(15) The characterization of Calvin as a natural born subject was quintessentially territorial:

         There be regularly three incidents to a subject born. 1. That the parents be under the actual obedience(16) of the King's dominion. 2. That the place of birth be within the King's dominion. And 3. The time of his birth ... for he cannot be a subject born of one kingdom...