Birthright Citizenship

  • September 14, 2011
    Video Interview

    This video interview is part of an ACSblog Constitution Week Symposium. By Nicole Flatow.


    Attempts to undo the constitutional guarantee that those born in the United States are citizens are “flatly and incontrovertibly unconstitutional and completely at odds with our constitutional history,” Georgia State University law professor Neil Kinkopf tells ACSblog during a video interview.

    Kinkopf traces the history of birthright citizenship in the United States, noting that the common law understanding was that all residents born here were citizens.

    He continues:

    That understanding was upset in the worst decision in the history of the Supreme Court, Dred Scott, when Chief Justice Taney ruled that descendants of Africans cannot be citizens and cannot have rights that a white person is bound to respect.

    It was the rejection of Dred Scott that led to the adoption of the Fourteenth Amendment and that led to the first sentence of the Fourteenth Amendment, which expressly puts into the Constitution birthright citizenship. It’s a fundamental commitment of our nation. It constitutes us as a people -- that we are not a country club, that everyone who’s born here is a citizen of the United States, and that our government cannot distinguish among us.

    Watch the video interview below.

  • June 27, 2011

    Despite rhetoric from some Tea Party leaders that says the Obama administration is running rough shod over the founding document, the country is not in “danger of flipping the Constitution on its head,” writes Richard Stengel in an extensive piece for Time.

    Stengel, in “One Document, Under Siege," continues:

    Their view [Tea Party faithful] of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: ‘The Constitution was written explicitly for one purpose – to restrain the federal government.’ Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before.

    If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the ‘necessary and proper’ clause, which delegates to Congress the power ‘to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by the Constitution in the Government of the United States, or in any Department of Officer thereof.’ Limited government indeed.

    Stengel’s article takes a look at some of the more high-profile constitutional debates, such as those focusing on Congress’s power to regulate commerce, in the context of the landmark health care reform law, and the 14th Amendment’s birthright citizenship clause.

    In the concluding graphs, Stengel touches on the debate over constitutional interpretation, writing:

    The Constitution is silent much of the time. And that’s a good thing. Two hundred twenty-three years after it was written, the Constitution is more a guardrail for our society than a traffic cop. The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.

    See Stengel’s entire article here.

    Accompanying the article is a new Time poll, showing that 54 percent of respondents said they agreed that the government should interpret the Constitution “based on changes in society,” as opposed to interpreting “exactly what’s spelled out in the Constitution.” Forty-one percent of respondents said the government should “following exactly what’s spelled out in the Constitution ….”

    Regarding the 14th Amendment’s clause, which states that all persons born in the U.S. are citizens, 62 percent of respondents said the provision should not be revised.

  • June 14, 2011
    Guest Post

    By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center


    In New Hampshire’s Republican presidential debate this week, former Minnesota Governor Tim Pawlenty made the following remarkable statement:

    This issue of birthright citizenship, again, brings up the importance of appointing conservative justices. That result is because the U.S. Supreme Court determined that that right exists, notwithstanding language in the Constitution.

    Is it remarkable that Pawlenty (pictured) supports appointing conservative justices to the Supreme Court?  Of course not.  But it is truly astonishing for a candidate for President of the United States to speak with such ignorance of the words of the Constitution.  After all, the Constitution itself, in Article II, section 1, requires the President to swear or affirm that he or she will “preserve, protect and defend the Constitution of the United States.”  That’s pretty hard to do if you don’t know what the Constitution says. 

    The Constitution’s 14th Amendmentprovides that “[a]ll 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 language plainly lays out a constitutional rule of citizenship at birth.  No question. 

    Pawlenty’s claim that “the U.S. Supreme Court determined that [the right to citizenship at birth] exists, notwithstanding language in the Constitution,” is thus totally mind-boggling given that the Constitution spells out such a right.  But let’s give Pawlenty the benefit of the doubt and assume that he intended to make a narrower point: that activist judges somehow made up the rule that constitutional citizenship attaches at birth for children born on U.S. soil to non-citizens.  Such a claim would be flat wrong as well.

    In fact, one thing that is striking when you compare the debate over birthright citizenship today with the debates in Congress in 1866 over the 14th Amendment’s Citizenship Clause is that, in 1866, both the proponents and opponents of the Citizenship Clause agreed that the Clause recognizes and protects birthright citizenship for the children—including children of aliens—born on U.S. soil.  (It should be noted, however, that birthright citizenship today is not necessarily a partisan issue.  Many prominent conservatives, from Linda Chavez to Lou Dobbs, recognize that the Constitution provides citizenship at birth for children born on U.S. soil, including children born to undocumented immigrant parents.)  

  • April 27, 2011

    “ ‘Originalism’ as many politicians practice it today has little to do with what the Constitution really says,” writes University of Baltimore law professor Garrett Epps in The Atlantic.

    The Constitution’s Citizenship Clause, for example, should be read exactly as it is written: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."

    Yet “Da Vinci Code originalists” such as Sens. Paul Vitter, Mike Lee, Rand Paul, and Jerry Moran, suggest secret meanings where there are none, selectively quoting from the legislatively history to reach the conclusion that the children of undocumented immigrants born in the United States are not U.S. Citizens, Epps explains.

    During a recent panel discussion on birthright citizenship co-hosted by the American Constitution Society and the Center for American Progress, Epps elaborated on the clear constitutional and historical underpinnings of birthright citizenship.

    During the original debate on the clause, he explained, some expressed concern about so-called “gypsies” becoming citizens, calling them, “those people who flout our laws.”

    This was what Epps termed the “Lou Dobbs moment" in the debate, and the drafters, unequivocally rejecting these concerns, had the following response: “How someone who professes such high regard for humanity and civilization could object to making citizens of these innocent children is simply beyond us.”

    ACS and CAP are hosting a second lunchtime panel discussion May 11 on the potential impact of proposed laws that seek to repeal or limit the Citizenship Clause. Bookmark this link for more information about registering and watching the simulcast from your computer.

    Watch video of the first panel discussion here, and read Epps’ full article in The Atlantic here.

  • January 5, 2011
    Guest Post

    Editor's Note: Elizabeth Wydra authored an ACS Issue Brief on the 14th Amendment's birthright citizenship clause and the efforts by some Tea Party groups and others to undermine the clause, which provides citizenship to babies born on American soil. Wydra is updating the Issue Brief, which will be released later this year. In light of the ongoing movement to curtail the citizenship clause, we are re-posting Wydra's blog post regarding her Issue Brief, "Birthright Citizenship: A Constitutional Guarantee."


    By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center
    The opening sentence of the Fourteenth Amendment is both sweeping and clear: "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." As discussed in my recent ACS Issue Brief, the words and history of this constitutional text establish that it provides automatic citizenship-"birthright citizenship"-to anyone born in this country regardless of race, color or status of one's parents or ancestors.

    Despite the plain language of the Amendment and its powerful history, opponents of birthright citizenship continue to fight its meaning and purpose. Most of the efforts to narrow the meaning of birthright citizenship have been motivated by a desire to exclude from citizenship children born on U.S. soil to undocumented immigrants. Unfortunately, this anti-citizenship political movement shows no signs of slowing: 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 ballot 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; and, in the 2008 presidential campaign, several Republican candidates expressed skepticism that the Constitution even guarantees birthright citizenship.

    The anti-citizenship arguments are debunked in detail in my Issue Brief. But the fatal flaws in these arguments are not the most compelling reasons for rejecting them in favor of the broad and clear definition of citizenship intended by our Reconstruction Framers. Rather, the text, history and principles behind the Citizenship Clause demonstrate that the drafters of the Fourteenth Amendment created an elegantly simple and intentionally fixed rule of birthright citizenship that was intended to serve as a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence. Providing for birthright citizenship regardless of race, color or previous condition of servitude righted the horrible wrong of Dred Scott v. Sandford, in which the Supreme Court held that persons of African descent born in the United States could not be citizens under the Constitution, and ensured that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors, would have the inalienable right to citizenship and all its privileges and immunities.