Amy Swearer, Heritage Foundation, May 14, 2019
Current policy broadly recognizes almost every child born within the U.S. as a citizen, but the original meaning of the Fourteenth Amendment undermines any claim that universal birthright citizenship is constitutionally mandated. Unlike nonimmigrant and illegal aliens, immigrant aliens enjoy many of the rights and are subjected to many of the duties that are normally reserved for citizens. They have taken a substantial and necessary step toward naturalization that is akin to previous laws regarding declarations of one’s intent to naturalize. They alone of the three general categories of aliens (immigrant aliens, nonimmigrant aliens whose permitted length of stay depends on the type of visa they acquire, and illegal aliens) have both lawful and permanent domicile in the United States.
The original public meaning of the Fourteenth Amendment does not mandate nearly so broad an application of birthright citizenship as U.S. immigration policy bestows today.
Immigrant aliens owe an allegiance to the United States that is sufficiently unqualified as to render their U.S.-born children U.S. citizens.
However, U.S.-born children of nonimmigrant aliens and U.S.-born children of illegal aliens are not entitled to citizenship by virtue of their birth on U.S. soil.
Who is a United States citizen by birth? For generations, the U.S. government has abided by a policy of treating essentially every child born on U.S. soil as a U.S. citizen, a policy known colloquially as universal birthright citizenship. But is this policy necessarily mandated by the Fourteenth Amendment’s Citizenship Clause?
The prevailing academic consensus, consistent with current U.S. policy, appears to be unquestioned acceptance that the Fourteenth Amendment adopted principles of common-law jus soli, or citizenship based on the “accident of birth” in the geographic United States. Brewing underneath this surface, however, has been a robust dissenting view that has intermittently made its way to the forefront of the public consciousness. Especially in recent years, a number of factors—such as President Donald Trump’s public promises to “end birthright citizenship,” the growing fiscal burden of illegal immigration, and the explosive rise of the “birth tourism” industry — have coalesced into renewed and ever more forceful calls to reexamine whether current U.S. citizenship policy is consistent with or mandated under the original meaning of the Fourteenth Amendment.
This Legal Memorandum explores the legislative and legal history of the Fourteenth Amendment’s Citizenship Clause in order to assess claims that the clause was originally intended to provide for, and should be understood as mandating, universal birthright citizenship for all U.S.-born children, regardless of the immigration status of their parents. The conclusion reached is certain to be controversial and is contrary to the oft-repeated mantras of modern defenders of universal birthright citizenship: The original public meaning of the Fourteenth Amendment, in its most reasonable interpretation, does not mandate nearly so broad an application of birthright citizenship as U.S. immigration policy bestows today. In fact, neither the U.S.-born children of nonimmigrant aliens nor the U.S.-born children of illegal aliens are entitled, as a matter of constitutional law, to United States citizenship by virtue of their birth on U.S. soil.
The first section assesses the Fourteenth Amendment’s original meaning by reviewing its legislative history, historical context, and earliest academic interpretations, as well as the initial judicial applications of its principles. It concludes that the Citizenship Clause was originally understood as bestowing birthright citizenship only on the U.S.-born children of citizens, newly freed slaves, and those situated similarly to them—in other words, on lawful permanent residents and those who owed an unqualified allegiance to the United States government.
The second section examines the 1898 Supreme Court opinion in United States v. Wong Kim Ark, the last time the Court ruled directly on the issue of birthright citizenship. Although many modern advocates claim that Wong Kim Ark definitely settled the question of birthright citizenship for illegal and nonimmigrant aliens and prohibits the government from limiting its application absent a constitutional amendment, there is an alternative interpretation of the case that is much more consistent with the amendment’s original meaning. This interpretation is not a modern twist, but finds its roots in contemporaneous analyses of the opinion.
The third section applies the original meaning of the Fourteenth Amendment to the modern immigration law context and determines that immigrant aliens, unlike illegal or nonimmigrant aliens, owe an allegiance to the United States that is sufficiently unqualified as to render their U.S.-born children necessarily, and of constitutional right, U.S. citizens.
[Editor’s Note: The original article, which is rather long and detailed, contains all the footnotes, and is available at no charge.]