Arguments Against "Birth Right" Citizenship Run Against Constitutional Principles

By Elizabeth B. Wydra, Immigration Policy Center. Posted September 17, 2009.

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 U.S. 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 established permanently for people of all colors; accordingly, they chose to constitutionalize the conditions sufficient for automatic U.S. 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, for over a decade bills have been introduced in Congress to end automatic citizenship for persons born on U.S. soil to parents who are in the country illegally.  This effort has gained momentum from outside Congress: in recent years, a small handful of academics has 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 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 seem to be unsure whether they need to amend the Constitution to achieve their goal, or if they may simply legislate around it.)  

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 important, 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.  The current debate over the meaning of the Citizenship Clause also stands in stark contrast to the legislative debates occurring at the time Congress approved it.  Perhaps the most remarkable feature of the legislative history of the Citizenship Clause is that both its proponents and opponents agreed that it recognizes and protects birthright citizenship for the children of aliens born on U.S. soil.  The Reconstruction Congress did not debate the meaning of the Clause, but whether, based on their shared understanding of its meaning, the Clause embodied sound public policy by protecting birthright citizenship.  For the most part, Congressional opponents of birthright citizenship argued vigorously against it because, in their view, it would grant citizenship to persons of a certain race, ethnicity, or status that the opponents deemed unworthy of citizenship.  These views did not carry the day.  Instead, Congress approved a constitutional amendment that used an objective measure—birth on U.S. soil—to grant citizenship automatically to all those who satisfied this condition. 

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. 

The Principles of the Fourteenth Amendment

The principles behind Reconstruction and the Fourteenth Amendment are particularly relevant to the current challenge to birthright citizenship.  Given the intensity of our national debate over immigration, it comes as little surprise that the special targets of the attacks on birthright citizenship are children of undocumented immigrants.  Some observers contend that birthright citizenship provides a strong incentive to those outside our borders to enter the country illegally in order to give birth on U.S. soil and thereby secure automatic citizenship for their child.  These undocumented aliens, the argument continues, often hope the United States will grant citizenship to them as well for the sake of the children.  Those who argue this position maintain that Congress should pass legislation that prospectively denies citizenship to children of undocumented aliens. 

See more stories tagged with: immigration, civil war, slavery, reconstruction amendments

Elizabeth B. Wydra is Chief Counsel at the Constitutional Accountability Center, www.theusconstitution.org, a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history.

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