- Immigration and Nationality Act 50th Anniversary Series: Birthright Citizenship?
- October 12, 2015
- Law Firm: Mintz Levin Cohn Ferris Glovsky Popeo P.C. - Boston Office
- Election years often revive old bones of contention, and the issue of birthright citizenship is but one of many that comes and goes. The 2016 presidential election is no different, and thanks to Republican candidate Donald Trump the meaning and appropriateness of birthright citizenship granted under the 14th Amendment has once again come to light.
The concept of jus soli—“right of soil,” or birthright citizenship—dates back to English common law. On July 28, 1868, when the 14th Amendment was ratified, it became one way of determining who is (and is not) a U.S. citizen at birth. The 14th Amendment states in pertinent part: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
The citizenship clause of the 14th Amendment came as a result of the aftermath of the Civil War. The 39th Congress sought a way to enfranchise the former slaves in the South, however to do so they needed to overturn the earlier Supreme Court ruling in Dred Scott v. Stanford, which held that African-Americans were not citizens of the United States. Thus a constitutional amendment was needed.
Even in the 39th Congress, the “citizenship clause” proposed by Senator Jacob Howard (R-MI) caused intense debate. Senator Edgar Cowan (R-PA) was one of several who voted against the amendment, objecting to granting birthright citizenship to the children of aliens who “owe [the U.S.] no allegiance [and] who pretend to owe none.” However, Senator Howard argued, “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.” Ultimately, the 14th Amendment passed in the Senate 33-11, the House 120-32, and received the necessary ¾ votes of the states for ratification.
The scope of the 14th Amendment was largely settled in the 19th century when the Supreme Court heard the case of Wong Kim Ark. In that case, the Court held the Fourteenth Amendment does not exclude children born in the United States of foreign parents from birthright citizenship.
169 U.S. 649 (1898). And yet, the birthright debate continues.
Republican candidates Donald Trump, Ted Cruz, Bobby Jindal, Rand Paul, Chris Christie, Lindsey Graham, and Rick Santorum have all suggested openness to ending birthright citizenship. Mr. Trump, as the loudest opponent, argues the right “remains the biggest magnet for illegal immigration.” This argument strikes a similar tone to Senator Cowan’s objections, first advanced in 1866, that the amendment enables foreign populations to overrun the country. Senator Cruz agrees, promoting both a change to the amendment and legislation defining what the words “subject to the jurisdiction” mean. Republican candidates Jeb Bush, Marco Rubio, George Pataki, Carly Fiorina, and John Kasich are not in favor of repealing the 14th Amendment, instead promoting other fixes to the immigration system.
On the other side of the spectrum, Democrat candidates Hillary Clinton, Martin O’Malley, and Bernie Sanders have openly criticized Republican arguments to revoke a constitutional right. Their stances also relate back to the ideals that led to the 14th Amendment’s ratification in 1868.
Interestingly, only 30 of the 194(ish) countries in the world permit birthright citizenship. The remaining 164(ish) countries, including the UK, Germany, Australia, Spain, China, India and Russia, follow the principle of jus sanguinis, or right of blood. In these countries, citizenship is transmitted through maternal or paternal lineage. However, many proponents of birthright citizenship believe the philosophy works well for countries like the U.S. and Canada—two nations founded by immigrants before any citizenship clauses were ratified. Jus sanguinis makes sense when nationality is conceived primarily in terms of ancestry. But in the United States, a nation of immigrants, the 14th Amendment was passed so that citizenship is not a selective grant to some races, as it was under the Dred Scott decision.
The 14th Amendment reflects the egalitarian foundations of the United States - everyone is placed on equal footing at birth with all of the same privileges and responsibilities. By doing away with the citizenship clause, we would reinforce an us vs. them dichotomy.