Interrogating Birthright Citizenship

• Published date: 15 January 2013
• Date: 15 January 2013
• Pages: 29-53
• DOI: https://doi.org/10.1108/S1059-4337(2013)0000060006
• Author: Peter J. Spiro

INTERROGATING BIRTHRIGHT

CITIZENSHIP

Peter J. Spiro

ABSTRACT

This contribution critiques U.S. practices respecting birth citizenship. It

first describes the logic of territorial birthright citizenship. The practice

makes sense only insofar as place of birth has supplied a proxy for

community membership. But many who are born in the United States

leave permanently at an early age. It is not clear why they should be able

to take their citizenship with them. The paper also critiques the liberalized

basis for acquiring citizenship on the basis of parentage. In both cases,

birth citizenship creates an increasing disconnect between the formal and

organic boundaries of community. This disconnect could be addressed by

the adoption of presence requirements beyond birth. Presence require-

ments would be consistent with liberal values to the extent they would

strengthen the solidarities of the liberal state. However, it is unclear that

presence gives rise to such solidarities. It is also improbable that presence

requirements will be adopted. This both evidences and reinforces the

declining salience of citizenship.

Born in the United States but removed at an early age when his parents

returned to Saudi Arabia, Yasser Hamdi did not even know that he was a

U.S. citizen at the time of his apprehension by U.S. forces in Afghanistan

Special Issue: Who Belongs? Immigration, Citizenship, and the Constitution of Legality

Studies in Law, Politics, and Society, Volume 60, 29–53

Copyright r2013 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000060006

29

and his subsequent transfer to Guantanamo Bay. When discovered, his

citizenship status resulted in his relocation to the mainland; the Supreme

Court ultimately found him entitled to procedural due process, in a decision

that by its terms hinged on the fact that he was an ‘‘American.’’ Hamdi was

in no way a member of the community of Americans defined in any on-the-

ground, organic sense. And yet most commentators accepted his status as a

citizen and associated rights (e.g., Berman, 2002). Perhaps more surpris-

ingly, no one in the Bush Administration nor on the Supreme Court

suggested that he should be considered otherwise.

Birthright citizenship presents a puzzle. Why should location at the

moment of birth determine one’s life-long national membership?

This contribution considers the question in both historical and

contemporary context. By birthright citizenship, I mean the near-absolute

rule of jus soli under which birth in the territory of the United States

qualifies an individual for citizenship on a constitutionally irrevocable basis.

The paper first describes the logic of birthright citizenship. The practice

makes sense only insofar as place of birth correlates with lifetime

trajectories, that is, insofar as place of birth has supplied a proxy for social

membership. That empirical premise supported a human rights justification

for a strong jus soli regime.

The premise looks unstable in contemporary perspective. Hamdi’s case is

not an outlier. As circular migration increases, many who are born in the

United States will leave permanently at an early age. It is not clear why they

should be able to take their citizenship with them. In this context, I also

critique the liberalized basis for acquiring citizenship on the basis of

parentage, under which individuals born abroad to U.S. citizens are

extended citizenship for life with no requirement that they ever so much as

set foot in the territory of the United States. Their numbers will also grow as

the number of naturalized U.S. citizens return to their homelands. In both

cases, the prospect is an increasing disconnect between the formal and social

boundaries of community.

This disconnect could be addressed by the adoption of presence

requirements beyond birth. In the jus soli framework, individuals born to

noncitizens in the territory of the United States would be required to live in

the United States for some period thereafter, at which point community

membership could more safely be assumed. Other countries use this

approach. Similarly, as was formerly the case under U.S. nationality law,

individuals born to citizens outside the United States could be required to

establish residency in the United States for some subsequent period by way

of perfecting their citizenship status.

PETER J. SPIRO30