Jonah Patel
The Fourteenth Amendment to the United States Constitution guarantees birthright citizenship to every child born within the jurisdiction of the United States. The Citizenship Clause, which was added to the Constitution after the Civil War, states 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. This clause was intended to entrench the principle of citizenship by birth in the Constitution and prevent it from being struck down by the Supreme Court or repealed by Congress. While there are some exceptions to birthright citizenship, such as children born to diplomats or members of foreign armies, the Fourteenth Amendment has been interpreted to extend birthright citizenship to anyone born in the United States, regardless of their parents' immigration or citizenship status.
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What You'll Learn
The Fourteenth Amendment
This clause deals with two types of citizenship: birthright citizenship and citizenship by naturalization. Birthright citizenship is acquired through birth on American "soil" (including US territories like Guam and the US Virgin Islands) or if one or both parents are American citizens at the time of birth. Citizenship by naturalization occurs when a non-citizen fulfils the legal requirements to become a citizen.
While the Fourteenth Amendment establishes birthright citizenship, it does not extend this right to everyone born in the United States. Those excluded from birthright citizenship include children born to unauthorised immigrants or those with temporary visas, and certain members of Indian tribes with limited political relations with the United States. The Amendment also does not identify the legal benefits that come with citizenship status.
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Birthright citizenship
The Fourteenth Amendment to the United States Constitution guarantees birthright citizenship to every child born "within the jurisdiction of the United States". The Citizenship Clause of the Fourteenth Amendment states 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.
The Fourteenth Amendment's Citizenship Clause was added to the Constitution in response to the infamous Dred Scott v. Sandford case of 1857, in which the Supreme Court held that free African-Americans, though born in the United States, could not be citizens. The Citizenship Clause was intended to entrench the principle of birthright citizenship in the Constitution and prevent it from being struck down by the Supreme Court or repealed by Congress.
The Citizenship Clause has been interpreted to mean that anyone born on U.S. soil is automatically conferred citizenship at birth, regardless of their parents' immigration or citizenship status. This interpretation was cemented by the 1898 Supreme Court case of United States v. Wong Kim Ark, which established birthright citizenship for children of all immigrants. However, there are some exceptions to birthright citizenship, including children born to diplomats and children born to members of foreign armies living in the U.S.
Under current law, the loss of birthright citizenship can only occur through voluntary relinquishment, such as declaring allegiance to a foreign state, formally renouncing U.S. nationality, or committing treason. Revoking this right would require amending the U.S. Constitution or diverging from long-standing legal precedent and principles.
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Citizenship by naturalization
The Fourteenth Amendment to the United States Constitution, adopted on July 9, 1868, introduced the Citizenship Clause, which states: "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." This clause established a simple national rule for citizenship: if you are born in America, you are a US citizen.
The Citizenship Clause marked a significant shift in American identity, challenging the racist citizenship determinations of individual states. Prior to this Amendment, the Constitution did not provide a clear and comprehensive rule about citizenship, allowing states to set their own criteria, often restricting citizenship to whites and excluding African Americans, even those born in the state. The Fourteenth Amendment's Citizenship Clause ensured that all persons born in the US are citizens, regardless of race.
The naturalization process has evolved over time, initially restricting eligibility to "free white persons." In 1870, this was expanded to include persons of "African nativity and descent." However, certain groups, such as "Chinese laborers," were specifically excluded from eligibility in 1882. These exclusions are no longer in force. Today, naturalization statutes require loyalty and good moral character and generally bar subversives, terrorists, and criminals from citizenship.
In conclusion, while the Fourteenth Amendment established citizenship by birth as a fundamental right, citizenship by naturalization is a privilege granted by Congress through a defined process. This process has been refined over time to address issues of race, equality, and eligibility, shaping the diverse fabric of American citizenship.
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Citizenship by birth exceptions
The Fourteenth Amendment of the US Constitution establishes citizenship by birth within the territory, including children born to resident aliens. However, there are several exceptions to this rule. For instance, children of foreign sovereigns or their ministers, or those born on foreign public ships, do not qualify for citizenship by birth. Similarly, children born to occupying enemy soldiers during a hostile occupation of US territory are excluded. Additionally, children of members of Indian tribes owing direct allegiance to their tribes are also exempt from citizenship by birth.
In the case of children born outside the United States, the country's nationality laws have historically been subject to change. The McCarran-Walter Act of 1952 aimed to address inequalities by replacing gendered terms with the word "spouse". It stated that children born abroad could gain derivative citizenship if one unmarried parent was a US citizen who had lived in the country for a year before the child's birth. If the parents were married, the citizen parent needed to have resided in the US for five years after turning 14 and cumulatively live there for ten years. An exception was made for active-duty military personnel, whose service was counted as residence in the country. However, if the citizen parent was under 19 and not in the military, their child could not derive citizenship from them.
The Immigration and Nationality Technical Corrections Act of 1994 further clarified that an alien child born out of wedlock before May 24, 1934, could acquire citizenship retroactively if their mother had resided in the US before the child's birth, regardless of legitimation by the alien father.
Other countries have their own variations of birthright citizenship laws. For example, Canada grants citizenship to children born in the country, including its airspace and territorial waters, unless a parent is a diplomat or has a similar role. Chile's Constitution grants nationality to those born in Chilean territory, except for children of foreign government workers or transient foreigners, who may opt for Chilean nationality. Pakistan's Citizenship Act of 1951 initially granted citizenship to everyone born in the country after April 13, 1951, except children of foreign diplomats or enemy aliens. However, a 2024 bill proposed requiring at least one parent to be a citizen or permanent resident for the child to be granted citizenship by birth.
In conclusion, while the Fourteenth Amendment establishes citizenship by birth in the US, there are several exceptions, including children of foreign sovereigns, those born on foreign ships, and children of occupying enemy soldiers. Additionally, US citizenship laws for children born abroad have evolved, addressing inequalities and clarifying requirements for derivative citizenship. Birthright citizenship laws vary across nations, with countries like Canada, Chile, and Pakistan having their own unique provisions and exceptions.
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Loss of birthright citizenship
The Fourteenth Amendment of the US Constitution states 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." This provision, known as the Citizenship Clause, establishes the principle of birthright citizenship, granting national and state citizenship to those born on American soil, regardless of their parents' legal status.
However, there have been debates and attempts to restrict or repeal birthright citizenship, particularly for children born to unauthorized immigrants or those on temporary visas. While the Fourteenth Amendment guarantees birthright citizenship, it excludes those who are not "subject to the jurisdiction" of the United States, such as children of foreign diplomatic representatives or alien enemies in hostile occupation.
Proponents of repealing birthright citizenship argue that it is a solution to illegal immigration. However, experts from the Migration Policy Institute (MPI) and Pennsylvania State University have found that ending birthright citizenship would have the opposite effect, increasing the unauthorized population by millions of people by 2050. It would create a self-perpetuating underclass, negatively impacting the national interest and the integration of immigrants into American society.
Additionally, repealing birthright citizenship would contradict historical precedent and Supreme Court rulings, such as the 1898 Wong Kim Ark case, which affirmed citizenship for a child born in the US to Chinese parents who were ineligible for naturalization. The president also has no authority to unilaterally change citizenship rules, as confirmed by a federal judge's blocking of an executive order on birthright citizenship.
While there are arguments for restricting birthright citizenship, such as preventing exploitation of the rule or avoiding overbroad protection, the potential drawbacks must be carefully considered. The benefits of birthright citizenship include easier integration of the first generation into American society, promoting social cohesion, and simplifying the process of proving citizenship with a birth certificate.
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Frequently asked questions
The Citizenship Clause, part of the Fourteenth Amendment, guarantees birthright citizenship to every child born "within the jurisdiction of the United States". This includes children born to immigrant parents.
The Citizenship Clause does not apply to children of diplomatic representatives of a foreign state, children born to members of foreign armies occupying US soil, or children of Native Americans subject to tribal laws.
The Citizenship Clause was added to the Constitution to address the Supreme Court's infamous 1857 Dred Scott v. Sandford decision, which ruled that free African-Americans, though born in the United States, could not be citizens. The Fourteenth Amendment was also a response to the Civil Rights Act of 1866, which declared that "all persons born in the United States and not subject to any foreign power...are hereby declared to be citizens of the United States".
