Arguments Against "Birth Right" Citizenship Run Against Constitutional Principles

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. 

At the time the Fourteenth Amendment was drafted, opinions on race and ethnicity were just as, if not more, passionately held and forcefully debated as opinions on immigration today.  The Dred Scott decision—which was specifically overruled through the Citizenship Clause—demonstrates why the Reconstruction framers drafted the Clause to place the class of persons eligible for citizenship beyond debate.  Dissenting from the majority’s opinion that, under its view of the Constitution, “citizenship at that time was perfectly understood to be confined to the white race,” Justice Benjamin Curtis noted the potential dangers if Congress were empowered to enact at will “what free persons, born within the several States, shall or shall not be citizens of the United States.” Curtis noted that if the Constitution did not fix limitations of discretion, Congress could “select classes of persons within the several States” who could alone be entitled to the privileges of citizenship, and, in so doing, turn the democratic republic into an oligarchy.   

Even on the floor of the U.S. Senate, xenophobic and racist sentiments were freely expressed, and some senators sought to have these beliefs reflected in the citizenship laws.  The framers of the Fourteenth Amendment wisely rejected these attempts, and created a Constitution that gave citizenship automatically to anyone, of any color or status, born within the United States.  The provision of citizenship by birthright was constitutionalized to place the question of who should be a citizen beyond the mere consent of politicians and the sentiments of the day. After cataloguing the discriminatory enactments of the former slaveholding states, it would have made no sense for the Reconstruction framers to have made the citizenship of freed slaves open to easy revocation if these states regained legislative power. Indeed, Representative Giles W. Hotchkiss specifically raised this fear with respect to the Fourteenth Amendment, which was originally drafted simply to allow Congress to enforce the protections of the Constitution rather than to enumerate the specific rights and guarantees it eventually embodied.  He noted the possibility that “rebel states” could gain power in the Congress and strip away the rights envisioned by the Reconstruction framers, unless these rights were “secured by a constitutional amendment that legislation cannot override.” The wisdom of the Reconstruction framers in placing the conditions of citizenship above majority action was confirmed when exclusionary immigration laws were passed just after the Fourteenth Amendment was ratified.  Had the racial animus of the Chinese Exclusion Laws, passed in the 1880s, been incorporated into the text of the Citizenship Clause, the amendment would be a source of shame rather than an emblem of equality. 

The current, inflammatory invocation of “anchor babies” by opponents of birthright citizenship further confirms the good judgment of the framers of the Fourteenth Amendment in placing the question of citizenship beyond “consent” of the majority.  Indeed, claims of which immigrants were “worthier” of citizenship than others were present at the time the Citizenship Clause was enacted.  In his veto message, President Johnson objected to the discrimination made between “worthy” foreigners, who must go through certain naturalization procedures because of their “foreign birth,” and conferring citizenship on “all persons of African descent, born within the extended limits of the United States,” who Johnson did not feel were as prepared for the duties of a citizen. The drafters of the Fourteenth Amendment rejected such distinctions, and instead provided us with a Constitution that guarantees equality and grants citizenship to all persons born in the United States, regardless of color, creed, or origin.  The text of the Citizenship Clause grants automatic citizenship to all persons born on U.S. soil so that minority groups do not need to win a popular vote to enjoy the privileges and immunities of U.S. citizenship—they simply have to be born here.   

Current advocates of a “consent” model of citizenship—in which the federal government could withdraw its consent to birthright citizenship for certain categories of persons—overlook the motivating principles behind the Reconstruction Congress’s desire to enact an objective rule and enshrine automatic citizenship by birth in the Constitution.  The framers of the Fourteenth Amendment did not believe that it was a matter of “policy” to provide citizenship to persons born in the United States without regard to race or color, but rather a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence.  Inalienable rights are not put to a vote, and thus the Fourteenth Amendment “conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.”

Debunking Modern Arguments Against Birthright Citizenship

Despite the strength of the argument—rooted in text, history, and long-standing Supreme Court precedent—that birthright citizenship applies to U.S.-born children regardless of the parents’ immigration status, there is a growing audience for an argument that Congress may deny birthright citizenship to the children of undocumented aliens through legislation.  Over the years, several bills and ballot initiatives have been proposed to accomplish exactly that. Douglas Kmiec, a professor at Pepperdine University School of Law and informal advisor to then-Governor Mitt Romney, reportedly concluded that there is a “better than plausible argument” that Congress may legislatively eliminate or adjust the practice of birthright citizenship.

The “Allegiance” Red Herring

The arguments for Congressional authority to limit birthright citizenship are all reliant upon an expansive interpretation of the term “subject to the jurisdiction” of the United States.   For example, some opponents of birthright citizenship dispute that the Citizenship Clause embodies the jus soli definition of citizenship and instead argue that it confers citizenship only to children of those who give their complete allegiance to the United States.  Under this view, because citizens of foreign countries still owe “allegiance” to a foreign sovereign, children born on U.S. soil to non-U.S.-citizen parents do not owe complete allegiance to the United States. 

This argument is misleading and based on flawed premises.  Even if “allegiance” were the defining characteristic of birthright citizenship, the Reconstruction framers understood allegiance to spring from the place of one’s birth, not the citizenship status of one’s parents.  The 1866 debates established that a person “owes allegiance to the country of his birth, and that country owes him protection.” Similarly, one of the opinions from the Dred Scott decision, the backdrop against which the Citizenship Clause was drafted, acknowledged that “allegiance and citizenship spring from the place of birth.”  

This understanding of allegiance deriving from one’s place of birth underscores the Reconstruction framers’ focus on the child born within the United States, not the status of his parents.  The text of the Citizenship Clause thus refers to “[a]ll persons born … within the United States” and not “all persons born of parents born within the United States.”  The Reconstruction framers expressly recognized this distinction:  Senator Trumbull remarked that “even the infant child of a foreigner born in this land is a citizen of the United States long before his father.” Some even acknowledged that birthright citizenship could encourage immigration, noting that the civil rights bill was “not made for any class or creed, or race or color, but in the great future that awaits us will, if it become a law, protect every citizen, including the millions of people of foreign birth who will flock to our shores to become citizens and to find here a land of liberty and law.”

Case law from the period confirms this view.  The case of Lynch v. Clarke, cited in the 1866 debates, stated that “children born here are citizens without any regard to the political condition or allegiance of their parents.”   The court held that “every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.” Ten years after the Lynch case, then-Secretary of State William Marcy wrote in a letter opinion that “every person born in the United States must be considered a citizen of the United States, notwithstanding one or both of his parents may have been alien at the time of his birth.” Thus, even if the relevant measure of citizenship were “allegiance” rather than birth within the territory of the United States, it does not work the way opponents of birthright citizenship want it to.   

“Excepting Foreign Diplomats” Is Not the Same as “Excepting All Foreigners”

Opponents of birthright citizenship also cite a statement by Senator Howard, who introduced the language of the Citizenship Clause, that the amendment would “not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” But if Howard was intending to list several categories of excluded persons he could have said so.  The language he used strongly suggests he was describing a single excluded class, families of diplomats.   

This interpretation of the Reconstruction framers’ views on the classes of persons excluded from birthright citizenship is clarified by a statement made just six days prior to Senator Howard’s introduction of the Citizenship Clause.  In an exchange on the Senate floor, Senator Benjamin Wade acknowledged a colleague’s suggestion that some persons born on U.S. soil might not be automatically granted citizenship, stating “I know that is so in one instance, in the case of the children of foreign ministers who reside ‘near’ the United States, in the diplomatic language.” He went on to explain that children of foreign ministers were exempt not because of an “allegiance” or consent reason, but because there is a legal fiction that they do not actually reside on U.S. soil: “By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States.”

In light of the legislative history described above, it is highly unlikely that Senator Howard’s comment regarding foreign diplomats means what opponents to birthright citizenship claim.  A single comment plucked out of context should not be used to sweep aside text, history, and principles that point to the opposite conclusion. 

The Misguided “Consent” Theory

Finally, in a modification of the “allegiance” argument, some opponents of birthright citizenship contend that the phrase “subject to the jurisdiction thereof” was originally understood, and is best read, as incorporating into the Fourteenth Amendment a theory of citizenship based on mutual consent, which would exclude children of parents present in the United States illegally (because the United States has not “consented” to their presence).  Not only does this consent theory require an impossibly distorted reading of the text of the Citizenship Clause, it is directly contrary to the principles of the Fourteenth Amendment. 

“Subject to the jurisdiction of” the United States is not the same as “subject to the consent of” the United States Congress.  Rather than implying governmental consent, the term “jurisdiction” generally refers to legal authority or control, and the phrase “subject to the jurisdiction thereof” most naturally refers to anyone within the territory of a sovereign and obliged to obey that authority.

If the Reconstruction framers truly intended to allow Congress to grant or withdraw its consent to citizenship for certain children born on U.S. soil, the actual wording of the Fourteenth Amendment was an exceedingly odd way of rendering it.  If those who drafted and ratified the amendment wanted to leave the matter within the control and consent of the national legislature, as opponents of birthright citizenship contend, it would have been far more sensible to draft and ratify an amendment that expressly authorized Congress to establish citizenship requirements for those born on U.S. soil, rather than expressly conferring citizenship on all persons born in the United States and subject to the jurisdiction thereof.  Or, if the Citizenship Clause was intended to confer citizenship according to the citizenship status or “allegiance” of a child’s parents, the Reconstruction framers could have focused on conditions to be met by the parents, instead of specifying conditions sufficient for a child to be granted citizenship automatically.  But the drafters of the Citizenship Clause were not poor wordsmiths—to the contrary, the rule they devised is elegantly simple and intentionally fixed.   

Perhaps most importantly, the idea that the conditions of citizenship could be modified by the “consent” of Congress, as advocated by those who believe Congress may legislate away birthright citizenship for children born to undocumented immigrants, would have been anathema to the Reconstruction framers.  Rather than leaving it to the “caprice of Congress,” the framers of the Fourteenth Amendment intended to establish “a constitutional right that cannot be wrested from any class of citizens, or from the citizens of any State by mere legislation.” The history of the Citizenship Clause demonstrates that the Reconstruction framers constitutionalized the conditions sufficient for citizenship precisely to enshrine automatic citizenship regardless of whether native-born children were members of a disfavored minority group or a welcomed band of ancestors. 

Not only do the arguments against birthright citizenship require utter disregard for the express provisions of the Constitution, they encourage us to abandon the precise reasons behind those enactments.  The text, history, and principles of the Citizenship Clause make clear that we should not tinker with the genius of this constitutional design.