Birthright Citizenship: A Constitutional Guarantee

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.

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3 responses to “Birthright Citizenship: A Constitutional Guarantee

  1. “he was born in the United States to a U.S. citizen mother”

    What is your source for this information?

    OH, I know, it’s Obama’s book. Of course! And of course he SAYS he was born in the U.S. to a citizen mother. And after all, he is the messiah so he would NEVER lie. Course not.

    You sound like a typical liberal loonie. Obama himself is his worst witness. Not to repeat myself or others with a brain, but, if he was born in the U.S. why is he hiding his birth certificate. And why did he issue the Executive order of May 2, 2009 in which he restricted that information from the American public?

    Try being unique. GROW UP!

    And as a result of

    • Why is he hiding his birth certificate? Probably for the same reason Palin hides Trig’s.

      And his mother is undoubtedly a Citizen, so regardless of where he was born, he’d still be entitled to Citizenship (though not BIRTHRIGHT Citizenship). Kind of a dead issue by now.

  2. Interesting brief.

    I find the Congressional Globe, which Wydra also relies upon, to be a mixed bag. She cites Trumball, but his words go both ways in the Globe. Howard is clearly against it being so inclusive in his remarks. In any event, I think it at best winds up with split opinions on the issue and since not everyone who voted spoke on the floor, we don’t really know what they all meant anyway.

    She says “clear” a bit too much for my liking, since her position (which I ultimately share) isn’t exactly the “clear” winner. The SCOTUS has never decided the question of whether birthright applies to native-born children of immigrants here without permission. Dicta in footnote 10 in Plyler v. Doe suggests how they would come down, but that was a different Court and it isn’t binding.

    I also think saying that the questioning has arisen in “recent years” is disingenuous – the first major rekindling of the issue in 100 years happened in the 80’s when Schuck & Smith released Citizenship Without Consent. That was more than 20 years ago.

    Great topic, but the ultimate answer is nowhere near as clear as Wydra portrays it. There are much more in-depth pieces available on both sides of this debate, but pro-birthright has the benefit of 100+ years of practice on its side and that probably sums it up better than any treatise.

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