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The American Constitution Society takes no position on particular legal or policy initiatives. All expressions of opinion are those of the guest bloggers. ACS encourages its members to express their views and make their voices heard in order to further a rigorous discussion of important issues.
The Fourteenth Amendment’s Guarantee of Birthright Citizenship
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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.
The text of the ratified Citizenship Clause embodies the jus soli rule of citizenship, under which citizenship is acquired by right of the soil (contrasted with jus sanguinis, according to which citizenship is granted according to bloodline.) This form of citizenship embodies the American rejection of aristocracy and privileged ancestry; under the Citizenship Clause, one's citizenship turns on an objective circumstance-place of birth-not familial status.
The Reconstruction Framers' intent to make citizenship dependent not on the favor of the majority or the favored status of a person's ancestors, but rather on neutral, fixed conditions is evident from congressional debates. In proposing the language that would ultimately be ratified as the Citizenship Clause, Senator Jacob Howard of Michigan explained that his proposed addition would declare "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."
Recognizing the sweep of this proposed language, both supporters and opponents of the Fourteenth Amendment understood the Citizenship Clause to grant birthright citizenship to children of aliens. In fact, this was a significant source of opposition: Senator Cowan lamented that the proposal would expand the number of Chinese in California and "Gypsies" in his home state of Pennsylvania by granting birthright citizenship to their children, even (as he put it) the children of those who owe no allegiance to the United States and routinely commit "trespass" within the country. No supporter of the Amendment rose to dispute Senator Cowan's view of the effect the proposed Amendment would have. To the contrary, Senator John Conness of California defended the proposed Citizenship Clause as sound policy, stating:
[With] respect to the children begotten of Chinese parents in California, ... it is proposed to declare that they shall be citizens .... I am in favor of doing so .... We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others."
In sum, the Citizenship Clause was proposed, enacted and ratified with the understanding that it granted automatic birthright citizenship to children born in the United States to alien parents.
As a final note, it is worth mentioning that the expansive Citizenship Clause was not forged in some more enlightened era. As the remarks quoted above demonstrate, along with the grand statements supporting liberty and equality, ethnic stereotypes and racial hostility were also on full display in the debates over the Fourteenth Amendment. But our Reconstruction Framers wisely placed the conditions for automatic citizenship beyond the prejudices and politics of the day, intending to establish "a constitutional right that cannot be wrested from any class of citizens, or from the citizens of any State by mere legislation." Today's anti-citizenship advocates are therefore not just flouting the Citizenship Clause's text and history when they seek to deny birthright citizenship to children born on U.S. soil to undocumented immigrant parents, they are also disregarding the Fourteenth Amendment's guiding principles and purposes.
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Are there any children born here but not subject to US jurisdiction, perhaps children of deploymats?
Throughout our previous history, immigrants had to have sponsors, a place to live, and a job before they came to this country - thru Ellis Island. They had the specific intent to live, work, and raise their families here. Granting citizenship to their children born here was a natural conclusion, and one which our forefathers clearly foresaw. Now we have illegals crossing the border, some just to have children who would become citizens and be eligible for everything we pay for. Most of them neither wish to become citizens nor stay here. They come here to work and send money back to their home country - just check with any Western Union station or bank - and we end up paying for all their medical expenses, etc. This is just a ploy to get citizenship for a predominantly democratic group of people. It is unfortunate that they are of a specific race or lineage. When the framers of the constitutional amendment passed the 14th, the intent was to allow those slaves who were brought here (they didn't come by themselves illegally) to have full citizenship, which was the right thing to do. I firmly approve of a change to this amendment - and, yes, I am a registered Democrat, but that doesn't mean I don't realize what this is really all about!
Concerning the immigration issue; I wonder if it were white people instead of hispanics pushing into the country would we respond the same way? The question of race is a looming stain when discussing any part of this countrys' history. The question is, can we look past all of our prejudges and do the right thing. Heres a thought; instead of excluding the children of the undocumented, try including the undocumented with the children. also when it comes to "lose the 14th and gain trillions" how about make them citizens, tax them accordingly, and save billions on boarder patrol. it is time that we stood up and did the right thing because its the right thing to do! Whats interesting 'reading through the above article, I find that then it was the prejudges against blacks that was of issue, and now its the hispanics. Whats sad is that you would think we would have learned the first time!
Am not a lawyer, but reading the first paragraph of the above, it specifically made a clear cut premise on how to be qualified for citizenship and that is "subject to the jurisdiction thereof...": Illegal immigrants are not subject to the USA but to their country of origin, just at the native Indians in the USA were not, until some amendments later. So am at a lost as to the premise of your conclusion that, ALL BORN HERE HAVE AUTOMATIC CITIZENSHIP!! Even children of legal diplomats are not accorded "citizenship of the USA just because they are born here. Sometimes, we allow personal interest to affect our interpretation of the law and it is sad, because, the law is the law, if there is need to change it, then it should be done the way it should.
Thanks, Alakpa, George PhD.
Does this clause mean anything at all? If not, why was written?
in the 1st amenment it states that we have Freedom of religion, speech, press and assembly; the right to protection the government
if it say freedom of speech and religion dont you think that the rights to homoesexuals would relate to that.
i guess what i am trying to say is homosexuality is like a religion, if gay cupple want to get merryed and have the right to adopt kids they should be able to. if you really think about it if a man and a man get merryed and adopt a new born baby with out a home they are saveing that childs life but because of the laws and every thing a man and a man can only get meried in just a few states and most adoption places dont except homosexuals to adopt.
i think men and women should stand up for there rights and fight for there right merry there soulmate. the definition to meraige is to merry the one you love. there is no where in the definution that says you have to merry to one man one women. not only should they fight for the right to merry they should fight for the right to become apart of the sevice to fight for our country.
Thank-you, Elizabeth Wydra and the Constitutional Accountability Center for the opportunity to express my opinion.
The words and history of the 14th amendment obviously fail to improve anything if we read the Constitution within the context of organic law, i.e. the Declaration of Independence, the Articles of Confederation and the original Constitution.
The Declaration of Independence implies cognition; "...governments derive their just powers from the consent of the governed." To be a citizen you must be capable of acknowledgement.
In Article 1 Section 2, "...attain the age of 25 and been seven years a citizen..." implies that at the age of 18 people become capable of acknowledgement; they qualify as citizens. (Citizens must be represented in congress by congresspeople who have qualified to be citizens)
The 14th amendment failed to improve and/or correct the constitution. According to Article 6, to be valid, all laws must pursue the Constitution, "..anything to the contrary...notwithstanding."
The rule of law, as enshrined in the US Constitution, is not the same old democracy that migrated out of Europe. The Constitution is a signpost along the bloody path of democracy. It needs to be read and studied so "we the people" can culturally evolve; rights, privileges, votes that count and voices to be heard are guaranteed it its social contract that calls for people to regulate commerce; thereby, securing the blessings of liberty to themselves. A consensus of this political purpose has yet to actualize because the Constitution needs to be clearly understood.
in all of the powerful liberty,justice,equality arguments that you point out about our ancestors forging of the 14th amendmant i believe that at that point in time our large then sparsly populated newly titled country was in need of a population and as we were all immigrants here at that point it should be obvious what they were trying to achieve.i believe they were just making sure that others who wished to join our country would be entitled to those inaliable rights contained within the freshly inked constitution,but there were then no laws pertaining to illegal entry into our country all were welcomed because they were needed. well now we have an expansive and diverse populous so why still do we honor this amendmant when it is clearly outdated and an open invitation to illegal's to stake a claim in this country on the backs of its current legal tax paying citizens. who do you think bears the cost of that illegals child birthing? post nadal care? well check ups?their insurance,yeah right... who pays for housing and food for them? who.... you and i.... lose the 14th amendment gain trillions of dollars and safer communities.......
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