The American Constitution Society (ACS) has recently released an issue brief by Elizabeth Wydra entitled Birthright Citizenship: A Constitutional Guarantee. Here’s the beginning of this great brief:
Since its ratification in 1868, the Fourteenth Amendment has guaranteed 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.” Just a decade before this language was added to our Constitution, the Supreme Court held in Dred Scott that persons of African descent could not be citizens under the Constitution. Our nation fought a war at least in part to repudiate the terrible error of Dred Scott and to secure, in the Constitution, citizenship for all persons born on U.S. soil, regardless of race, color, or ancestry.
Against the backdrop of prejudice against newly freed slaves and various immigrant communities such as the Chinese and Gypsies, the Reconstruction Framers recognized that the promise of equality and liberty in the original Constitution needed to be permanently established for people of all colors; accordingly, the Reconstruction Framers chose to constitutionalize the conditions sufficient for automatic citizenship. Fixing the conditions of birthright citizenship in the Constitution—rather than leaving them up to constant revision or debate—befits the inherent dignity of citizenship, which should not be granted according to the politics or prejudices of the day.
Despite the clear intent of the Reconstruction Framers to grant U.S. citizenship based on the objective measure of U.S. birth rather than subjective political or public opinion, opponents of birthright citizenship continue to fight this constitutional guarantee. After the election of President Barack Obama, lawsuits were filed challenging his citizenship, including an action challenging President Obama’s citizenship at birth because, even though he was born in the United States to a U.S. citizen mother, his father was a citizen of Kenya. In Congress, bills have been introduced each year for more than a decade to end automatic citizenship for persons born on U.S. soil to parents who are in the country illegally. In California, signatures are being gathered for a proposition that would create a sub-class of U.S.-born citizens by issuing different birth certificates to children born in the United States to undocumented immigrant parents. Academics and national politicians have added to the movement’s momentum: in recent years, a small handful of academics have joined the debate and called into question birthright citizenship, and, in the 2008 presidential campaign, several Republican candidates expressed their skepticism that the Constitution guarantees birthright citizenship. Though the most prominent proponents of ending birthright citizenship have been conservative, the effort has at times been bipartisan: Democratic Senator—and now Majority Leader—Harry Reid introduced legislation that would deny birthright citizenship to children of mothers who are not U.S. citizens or lawful permanent residents.
Putting aside whether ending birthright citizenship is a good idea as a policy matter—and scholars, notably Margaret Stock, make compelling arguments that ending birthright citizenship would have disastrous practical consequences—the threshold question is whether Congress may properly consider ending automatic citizenship for persons born in and subject to the jurisdiction of the United States at all. (Proponents of ending birthright citizenship themselves seem to be unsure whether they need to amend the Constitution to achieve their goal, or may simply legislate around it—the sponsors of legislation to end automatic citizenship alternate between proposing amendments to the Constitution and simply proposing legislation that denies citizenship to children born in the United States to undocumented parents.)
A close study of the text of the Citizenship Clause and Reconstruction history demonstrates that the Citizenship Clause provides birthright citizenship to all those born on U.S. soil, regardless of the immigration status of their parents. Perhaps more importantly, the principles motivating the Framers of the Reconstruction Amendments, of which the Citizenship Clause is a part, suggest that we amend the Constitution to reject automatic citizenship at the peril of our core constitutional values. To revoke birthright citizenship based on the status and national origin of a child’s ancestors goes against the purpose of the Citizenship Clause and the text and context of the Fourteenth Amendment.