Born in the USA: An All-American View of Birthright Citizenship and International Human Rights

Article excerpt

I.   INTRODUCTION

II.  IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES
     A. History of Immigration
     B. Citizenship
III. THE HISTORYAND RIGHTS UNDERLYING THE FOURTEENTH AMENDMENT
     A. Debate Over the Meaning
     B. The Historical Context of the Fourteenth Amendment
     C. Conflict Between the Purpose of the Fourteenth
        Amendment and Repeal of Birthright Citizenship

IV.  INTERNATIONAL LAW AND DOMESTIC INCORPORATION

V.   INTERNATIONAL INSTRUMENTS RELATING TO BIRTHRIGHT CITIZENSHIP
     A. United Nations Charter
     B. Universal Declaration of Human Rights
     C. International Covenant on Civil and Political Rights

VI.  ENFORCEMENT OF HUMAN RIGHTS DOMESTICALLY
     A. Treaties
     B. Customary International Law
     C. Enforcement of Rights Under the U.N. Charter,
        Universal Declaration, and ICCPR

VII. CONCLUSION

I. INTRODUCTION

"We are trying to protect America." (1) The ultimate justification for many political claims has recently surfaced in a unique context surrounding the debate in the United States on immigration. In 2010 a couple of politicians claimed to have knowledge that international terrorists were giving birth to "terror babies." (2) The assertion was that terrorists were entering the United States as unauthorized immigrants in order to have a child on American soil. (3) Afterwards, the terrorist parents would return to their homeland to train and indoctrinate the "terror baby," and in twenty to thirty years the child would return to the United States as a citizen. (4) The citizen-terrorist would then use their citizenship status to infiltrate the country and attack Americans on home soil. (5)

Although a rather wild claim, (6) it is just the latest manifestation of an argument to end America's long-standing practice of conferring citizenship upon any child born on U.S. soil. (7) So called "birthright citizenship" guarantees that any child born in the territorial United States is automatically a citizen, regardless of the citizenship status of the parents. (8) With the debate over immigration raging on in the United States, some politicians have advocated ending this guarantee of citizenship for many different reasons. (9)

Birthright citizenship was put into the Fourteenth Amendment of the U.S. Constitution specifically to confer citizenship and equal standing under the law to all persons. (10) The importance of this initiative was evident as a result of the system that existed after the infamous Dred Scott (11) decision where African Americans had no avenue to obtain citizenship. (12) By rejecting African Americans from the class of citizens, a racial caste system existed where law only protected the rights of the privileged. (13) The Fourteenth Amendment changed that system specifically to end the oligarchic caste system that developed under Dred Scott and the "Black Codes." (14)

Repealing birthright citizenship would lead to the establishment of a permanent class of stateless individuals that are not recognized as citizens anywhere. (15) This class of persons would be excluded from social membership for generations, and would mirror the racial caste system that the Fourteenth Amendment sought to end. (16) The development of the caste of stateless individuals would also violate the duties of the United States under international law, for example equal protection, right of nationality, and non-discrimination. (17)

This paper analyzes the debate of birthright citizenship from a perspective that most have seemingly ignored, that of the impact from international law. Part I discusses the history of immigration and citizenship within the United States. This section will look at the reasons and ways Congress has regulated immigration and naturalization. It will examine the origins of the birthright citizenship clause of the Fourteenth Amendment, and introduce the problems that repeal would create.

Part II will discuss debate over the meaning and constitutional status of the citizenship clause in the Fourteenth Amendment. …