The fourteenth amendment provides, "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." Congress has expanded the range of persons who can claim birthright citizenship. For example, children born to American couples abroad receive birthright citizenship under statutory law.
Interpretive controversies have arisen over the Fourteenth Amendment's "jurisdictional proviso," which requires that persons be "subject to the jurisdiction " of the United States in order to claim constitutional birthright citizenship. It is widely agreed that the proviso was intended to carve out an exception for children born to foreign diplomats or invading armies. The crucial question is whether the proviso has other applications.
Late in the nineteenth century, the Supreme Court held in Elk v. Wilkins (1884) that american indians born on reservations had not been born subject to the jurisdiction of the United States. Elk has never been overruled, but, for practical purposes, it no longer matters; by 1940, Congress had granted birthright citizenship to all Native Americans born in the United States.
In recent decades, the major controversy about the Constitution's citizenship rule has concerned its application to the children of aliens who enter the country unlawfully. The Fourteenth Amendment draws no distinctions based on the nationality of a child's parents, and the Court has added none. On the contrary, the Court has asserted that the native-born children of all aliens automatically acquire citizenship by virtue of the Fourteenth Amendment's rule. That assertion appeared in a footnote to plyler v. doe (1982); it was dictum, but it is consistent with the way in which federal immigration officials have interpreted the amendment.
During the 1980s, two Yale professors, Rogers Smith and Peter Schuck, maintained that the Fourteenth Amendment's jurisdictional proviso excluded the nativeborn children of aliens who enter the country illegally. Schuck and Smith reasoned that by their unlawful entry, the aliens refuse to submit to the jurisdiction of American law. Schuck and Smith buttressed this textual argument with a theoretical one. Communities, they said, should be founded on consent; for that reason, foreigners and their children should not be allowed to obtain American citizenship without getting permission from those who already had it.
Schuck and Smith were not hostile to immigration; indeed, they favored increasing the flow of legal immigrants into the United States. During the 1990s, however, anti-immigrant politicians mounted their own assault on the rule granting citizenship to the native-born children of aliens who are unlawfully in the country. Some embraced the interpretive argument advanced by Schuck and Smith; others, including California Governor Pete Wilson, called for a constitutional amendment.
It is hard to deny the appeal of a purely consensual political community, in which every member is present through his or her own free choice, and in which no member is present without the approval of his or her compatriots. It is equally hard, however, to apply this ideal to modern nation states. For example, a child born to immigrant parents and raised in the United States will find her identity and opportunities comprehensively shaped by American political power. American law will govern her education, her encounters with the police, her economic circumstances, her claim to health care, and more. By what right does the United States exercise such pervasive authority over the child? Perhaps the parents consented to having it exercised over them when they entered the country. The child, however, never had any meaningful opportunity to consent.
Consent is an impossibly demanding requirement against which to evaluate citizenship rules. The Fourteenth Amendment's rule incorporates a more realistic norm, one based on reciprocity. Because the United States claims authority to regulate pervasively the lives of the children born within its borders, the United States must permit those children to share in the benefits that flow from that exercise of power. It must admit them to the political community, so that power is exercised for them rather than merely upon them.
Without this principle, the United States might develop a permanent class of laborers, descendants of illegal aliens who would go from cradle to grave in the United States without sharing in its political life. Other Americans might get substantial benefits by exploiting such a workforce. Indeed, some sectors of the American agricultural community have routinely relied on aliens who are subject to deportation; the vulnerability of these workers makes them a ready source of cheap labor.
A permanent workforce of second-class persons would replicate some aspects of slave labor. It is no accident that the Fourteenth Amendment's citizenship rule stands in the way of such a system. The rule was adopted to enfranchise American slaves and their descendants, and, more specifically, to overrule dred scott v. sandford (1857). In Scott, Chief Justice roger brooke taney concluded that no person descended from slaves could become a citizen of the United States. In dissent, Justices benjamin r. curtis and john mclean repudiated Taney's position. McLean simply asserted that any free person who had been born in the United States was an American citizen. Curtis offered a more elaborate argument. He analogized the states to foreign sovereigns, and argued that the power to define citizenship was an essential incident of sovereignty. Therefore, Curtis concluded, birthright citizenship depended on state law.
The Fourteenth Amendment rejected not only Taney's theory, but also Curtis's, which had been widely accepted by lawyers before the civil war. After the Fourteenth Amendment, states no longer had the power to say who was entitled to membership in their political community. The issue was settled by national law, and state citizenship was reduced to an incident of residence. The states had lost a traditional indicator of sovereign status. This development reflects how deeply the Civil War changed American federalism.
Christopher L. Eisgruber
Carens, Joseph H. 1987 Who Belongs? Theoretical and Legal Questions About Birthright Citizenship in the United States. University of Toronto Law Journal 37:413–443.
Eisgruber, Christopher L. 1997 Birthright Citizenship and the Constitution. New York University Law Review 72:54–96.
Kettner, James H. 1978 The Development of American Citizenship 1608–1870. Chapel Hill: University of North Carolina Press.
Neuman, Gerald L. 1996 Strangers to the Constitution: Immigrants, Borders, and Fundamental Law. Princeton, N.J.: Princeton University Press.
Note 1994 The Birthright Citizenship Amendment: A Threat to Equality. Harvard Law Review 107:1026–1043.