The ABC of Accidental Birthright Citizenship

By Ric Oberlink
September 23, 2015
 
You could be forgiven for thinking that the U.S. Constitution guarantees citizenship to anyone and everyone born on American soil.  Even if you have followed the current political debate, you might conclude that changing that policy would require a constitutional amendment.
 
At the Associated Press, Sergio Bustos wrote, “Native-born children of immigrants—even those living illegally in the U.S.—have been automatically considered American citizens since the adoption of the 14th Amendment in 1868.” According to Robert Siegel at NPR, it is a “right carved in stone in the U.S. Constitution.” Writing in the International Business Times, Nicole Rojas states that ending birthright citizenship “would be in direct contradiction to the U.S. Constitution’s 14th Amendment.”
 
Here is what you need to know in the current debate about (accidental) birthright citizenship: the Supreme Court has never ruled that the 14th Amendment of the Constitution—passed to ensure that former slaves were considered U.S. citizens—grants citizenship to the American-born children of illegal aliens, foreign students, tourists, or temporary foreign workers in the United States.
 
A modicum of research on the issue would yield an entire book on the subject by Yale professors Peter Schuck and Rodgers Smith—Citizenship Without Consent: the Illegal Alien in the American Polity—which concluded that it did not.
 
In Oforji v. Ashcroft, 7th Circuit Judge Richard Posner, named by The Journal of Legal Studies as the most cited legal scholar of all time, wrote, “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it…. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.”
 
America does not need a debate about whether the Constitution mandates accidental birthright citizenship. It needs a debate about whether it is an appropriate policy for the United States in 2015. If it is not, then we should pass legislation to change it. If five justices on the Supreme Court say it passes constitutional muster, then the law goes into effect. If five justices think it unconstitutional, they will tell us so.
 
What is fascinating about this issue is how Americans who love all things European, suddenly do not. It is not just that Europe does not have birthright citizenship; it did have it, reviewed it, decided it was a bad idea, and got rid of it.
 
The United Kingdom and France, among others, have passed legislation eliminating automatic birthright citizenship. It was part of Ireland’s Constitution until 2004 when, in a national referendum, eighty percent voted to remove it.
 
But the United States is different because it is an immigrant nation goes the cliché. All nations are immigrant nations at some point in their history, but even if we consider just recent history, the U.S. is no more an immigrant nation than New Zealand or Australia. New Zealand eliminated birthright citizenship in 2006, Australia in 2007. In fact, Canada is the only remaining industrialized nation other than America to grant citizenship to each person born in the country, regardless of the parents’ nationality or immigration status.
 
There may have been good policy arguments for jus soli, the right of the soil, in 1868 when most nations were an ocean and a month’s sail away, but these no longer apply in 2015 when an airline flight makes birth tourism accessible and simple. Legislation in Congress would clarify that citizenship at birth is granted only if at least one of the parents is a citizen, permanent lawful resident, or noncitizen serving in the armed forces. It is time to end accidental birthright citizenship.