On Birthrights

The notion of birthright citizen, or jus soli, comes to us from the common law tradition of the United Kingdom. This legal tradition holds that individuals born within the territorial confines of a given polity are citizens of that polity, with all rights, privileges, and duties associated with citizenship. It is often the law in states with little or no ethnic connection to the land. Several countries who share America’s status as a former British colony, as well as continental European countries, have modified their jus soli citizenship laws to exclude children born to illegal immigrants or temporary workers. But the rule in America dictates that your physical presence here at birth guarantees you all of the rights, privileges, and duties of US citizenship. Debates have been raging recently about whether our laws governing citizenship should be amended to restrict access. Several Republican elected officials have proposed the abolition of birthright citizenship; most notable of these is Arizona Senate President Russell Pearce, of SB 1070 fame. Senator Lindsey Graham has argued in favor of restrictions on birthright citizenship similar to other former British colonies that preclude the children of illegal immigrants and temporary workers. This post is not intended to discuss at length the wisdom of these proposals, but will discuss the constitutional history of citizenship in the United States in light of comments from Senator Pearce regarding the nature of US citizenship, who claimed that there is no such thing.

He is, in fact, correct. But only if we’re living in 1867. Last time I checked, we weren’t.

Prior to the founding of the United States, people born in British colonies in North America were, by custom, automatically granted citizenship of their respective colony in addition to being a subject of the British Crown. After the end of the American War of Independence, the several states continued this tradition of birthright citizenship, though without subjection to the Crown. However, prior to the Civil War there was no such thing as American citizenship. People were considered citizens of the states in which they resided. In the early American republic, federal regulation of immigration was limited to safety conditions on shipping vessels. States would often restrict immigration by preventing the poor, the mentally ill, and convicted criminals from immigrating to their states.

It was not until the ratification of the 14th amendment that national citizenship came into existence. The 14th amendment guaranteed federal protection of citizenship rights because of racial discrimination at the state level. It was the intent of the framers of that amendment that states be bound to the Bill of Rights in addition to the federal government. With the establishment of federal citizenship came federal regulation of citizenship, which was included, but not limited to, deciding who could become a naturalized citizen and the process of acquiring citizenship. The state of Arizona has no authority to regulate citizenship because of the 14th amendment, which states:

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.

The intent of the amendment could be no clearer. It creates US citizenship.

As to the wisdom of restrictions on birthright citizenship, America must be careful if there are actual proposals. We can’t go the route of Germany, with thousands of legal Turkish immigrants who came after WWII and had children who were neither German citizens nor citizens of Turkey. In many cases there were 3 or 4 generations living in the same household and only one senior citizen had legal authorization to work. Such a situation in the US would be unsustainable.

I’m generally in favor of laws that increase access to US citizenship, because US citizenship is awesome. What we should be doing is finding a way to allow people to come here legally in greater numbers, not kicking people out.