Academic journal article The Cato Journal

Is Birthright Citizenship Good for America?

Academic journal article The Cato Journal

Is Birthright Citizenship Good for America?

Article excerpt

The Declaration of Independence famously asserted that "all men are created equal," but this assertion did not become an American constitutional reality until the Fourteenth Amendment was ratified in 1868. The Fourteenth Amendment's Citizenship Clause--intended to overturn the infamous U.S. Supreme Court decision in the Dred Scott (1S57) case--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." Traditionally, the clause has been interpreted to confer U.S. citizenship on anyone born within the United States whose parents are subject to U.S. civil and criminal laws which has historically meant that only babies born in the United States to diplomats, invading armies, or within certain sovereign Native American tribes have been excluded from birthright American citizenship. Alarmed by the thought that unauthorized immigrants, wealthy tourists, and temporary workers are giving birth to thousands of U.S. citizens, some want to change the long-standing rule by reinterpreting or amending the Citizenship Clause. But will this proposed change be good for America? Will it benefit America to reduce substantially the number of birthright U.S. citizens--and put in place more complex rules that would provide that U.S.-born babies are not created equal?

A Brief History of the U.S. Birthright Citizenship Rule

At the time of the ratification of the U.S. Constitution in 1790, the new United States recognized three different paths to American citizenship: First, a person could be born a foreigner and later apply to become a U.S. citizen through the naturalization process; this pathway fell under Congress's power to create a "uniform rule of naturalization," as stated in Article I, Section 8 of the U.S. Constitution. Second, following the international law rule, a person might inherit citizenship from his or her citizen parents; this pathway--termed the jus sanguinis or the citizenship by blood or descent rule--was thought to be within the naturalization power of Congress as well, and was first permitted when Congress passed the Naturalization Act of 1790, which accorded "natural born citizen" status to the foreign-born children of certain U.S. citizens. (1) Finally, however, the United States also adopted the British common-law rule of jus soli (law of the soil) for persons born within the territorial jurisdiction of the United States whose parents were subject to U.S. civil and criminal laws. Thus, in the 1844 New York state court case of Lynch v. Clarke (1844), Judge Lewis Sandford wrote,

   I can entertain no doubt, but that by the law of the United States,
   every person born within the dominions and allegiance of the United
   States, whatever were the situation of his parents, is a natural
   bona citizen. The entire silence of the constitution in regard to
   it, furnishes a strong confirmation, not only that the existing law
   of the states was entirely uniform, but that there was no intention
   to abrogate or change it. The term citizen, was used in the
   constitution as a word, the meaning of which was already
   established and well understood. And the constitution itself
   contains a direct recognition of the subsisting common law
   principle ... The only standard which then existed ... was the rule
   of the common law, and no different standard has been adopted
   since.

In 1857, however, in the case of Sandford v. Scott (commonly termed the Dred Scott case), the U.S. Supreme Court determined that these three pathways to U.S. citizenship were not open to persons of African descent. Moreover, said the Court, these pathways could never be open to Africans or their descendants--as a matter of constitutional law, the Court said, the original political community in America had never consented to the inclusion of Africans as full members of that community, (2) and so Africans and their descendants were forever barred from U. …

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