Birthright citizenship in the United States of America
Encyclopedia
Birthright citizenship in the United States refers to a person's acquisition of United States citizenship
by virtue of the circumstances of his or her birth. It contrasts with citizenship acquired in other ways, for example by naturalization
later in life. Birthright citizenship may be conferred by jus soli
or jus sanguinis
. Under United States law, any person born within the United States
(including the territories of Puerto Rico
, Guam
, the U.S. Virgin Islands, and the Northern Mariana Islands
) and subject to its jurisdiction is automatically granted U.S. citizenship
, as are many (though not all) children born to American citizens overseas.
, governed by the United States constitution
.
Since the adoption of the Fourteenth Amendment
to the constitution on July 9, 1868, the citizenship of persons born in the United States has been controlled by its Citizenship Clause
, which states:
, the Panama Canal Zone
, Panama
, the Virgin Islands
, Guam
, and the Northern Mariana Islands
. There are also special considerations for those born in Alaska
and Hawaii
before those territories acquired statehood. For example, states that "[a]ll persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth".
Title paragraph (c) provides that children born abroad after December 24, 1952 to unmarried American mothers are U.S. citizens, as long as the mother has lived in the U.S. for a continuous period of at least one year at any time prior to the birth.
paragraph (a) provides that children born to American fathers unmarried to the children's non-American mothers are considered U.S. citizens only if the father meets the "physical presence" conditions described above, and the father takes several actions:
} paragraph (a) provides that acknowledgement of paternity can be shown by acknowledging paternity under oath and in writing; having the issue adjudicated by a court; or having the child otherwise "legitimated" by law.
Because of this rule, unusual cases have arisen whereby children have been fathered by American men overseas from non-American women, brought back to the United States as babies without the mother, raised by the American father in the United States, and later held to be deportable as non-citizens in their 20s. The final element has taken an especially significant importance in these circumstances, as once the child has reached 18, the father is forever unable to establish paternity to deem his child a citizen.
This distinction between unwed American fathers and American mothers was constructed and reaffirmed by Congress out of concern that a flood of illegitimate Korean and Vietnamese children would later claim American citizenship as a result of their parentage by American servicemen overseas fighting wars in their countries. In many cases, American servicemen passing through in wartime may not have even learned they had fathered a child. In 2001, the Supreme Court, by 5-4 majority in Tuan Anh Nguyen v. INS, first established the constitutionality of this gender distinction.
only natural born citizens are eligible to serve as President of the United States
or as Vice President
. The text of the Constitution does not define what is meant by natural born: in particular it does not specify whether there is any distinction to be made between persons whose citizenship is based on jus sanguinis
(parentage) and those whose citizenship is based on jus soli
(birthplace). As a result, controversies have arisen over the eligibility of a number of candidates for the office.
former slaves until the passage of the Civil Rights Act of 1866
, which was subsequently confirmed by the Fourteenth Amendment
. American Indian tribal members are not covered specifically by the constitutional guarantee, but they were made citizens automatically by the Indian Citizenship Act of 1924
.
. Calvin’s Case, 77 Eng. Rep. 377 (1608), was particularly important as it established that under English common law “a person's status was vested at birth, and based upon place of birth—a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection."
This same principle was adopted by the newly formed United States, as stated by Supreme Court Justice Noah Haynes Swayne
: "All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England...since as before the Revolution." United States v. Rhodes, 27 Fed. Cas. 785 (1866). However, Calvin's Case is distinguishable, as a Scotsman was granted title to English land as his King and England's King (James) were one and the same. Calvin was not born in England. Moreover, in Calvin's Case, Lord Coke cited examples in which the native-born children of parents, either invading the country or who were enemies of the country, were not natural-born subjects because the birth lacked allegiance and obedience to the sovereign.
provided the first rules to be followed by the United States
in the granting of national citizenship
. Since that time, laws concerning immigration and naturalization in the United States
have undergone a number of revisions.
in the majority opinion in Dred Scott v. Sanford held that African Americans had never been and could never become citizens of the United States. Political scientist Stuart Streichler writes of the decision that Taney's decision was based on "a skewed reading of history.". Justice Benjamin R. Curtis in his dissent showed that under the Articles of Confederation
blacks had been citizens in five states and carried that citizenship forward when the Constitution was ratified. and wrote:
Salmon P. Chase
sent a query to Attorney General
Edward Bates
asking whether or not "colored men" can be citizens of the United States. Attorney General Bates responded on November 29, 1862, with a 27-page opinion concluding, "I conclude that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, ...[italics in original]" In the course of that opinion, Bates commented at some length on the nature of citizenship, and wrote,
declared: "...all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."
to the Constitution
on July 9, 1868, citizenship of persons born in the United States has been controlled by its Citizenship Clause
, which states:
The Expatriation Act of 1868 led President Ulysses S. Grant
to write, in 1873, that the United States had "led the way in the overthrow of the feudal doctrine of perpetual allegiance".
Dr. Edward J. Erler of California State University, San Bernardino
, and Dr. Brook Thomas of the University of California, Irvine
, have argued that this Act was an explicit rejection of birth-right citizenship as the ground for American citizenship, basing that argument on the debate that surrounded the passage of this act.
1401(b)).
is so consistent in American law as to automatically grant American citizenship to children born in New York City between July 4, 1776
and September 15, 1776
, but not to children born in that city during the British occupation which followed September 15 of that year.
, , the Supreme Court denied the birthright citizenship claim of an American Indian
. The court ruled that being born in the territory of the United States is not sufficient for citizenship; those who wish to claim citizenship by birth must be born subject to the jurisdiction of the United States. The court's majority held that the children of Native Americans were
Thus, Native Americans who voluntarily quit their tribes would not automatically become U.S. citizens. Native Americans were granted U.S. citizenship by Congress half a century later in the Indian Citizenship Act of 1924
, which rendered the Elk decision obsolete.
, , the Supreme Court ruled that a person who
becomes, at the time of his birth, a citizen of the United States by virtue of the first clause of the 14th Amendment of the Constitution
.
by birthright. In both situations that birthright citizenship is passed on to their children. In some cases birth in an American hospital (sometimes called "border babies") has resulted in people living much of their lives in Canada and unknowingly never holding Canadian citizenship, a group sometimes called Lost Canadians
.
of Michigan—the sponsor of the Citizenship Clause—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866
, namely, that it excludes American Indians who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." Others also agreed that the children of ambassadors and foreign ministers were to be excluded. However, concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Senate Judiciary Committee Chairman
Lyman Trumbull
, the author of the Civil Rights Act, as well as President
Andrew Johnson
, asserted that both the Civil Rights Act and the 14th Amendment would confer citizenship on them at birth, and no senator offered a contrary opinion.
Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard's proposal more effectively excluded Aboriginal Americans on reservations and in U.S. territories from citizenship. Senator James R. Doolittle of Wisconsin asserted that all Native Americans are subject to the jurisdiction of the United States, so that the phrase "Indians not taxed" would be preferable, but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States.
Edward Erler argues that since the Wong Kim Ark case dealt with someone whose parents were in the United States legally, there is no valid basis under the 14th Amendment for the practice of granting citizenship to U.S.-born children of illegal immigrants: "Even if the logic is that Wong Kim Ark became a citizen by birth with the permission of the United States when it admitted his parents to the country, no such permission has been given to those who enter illegally." Angelo Ancheta, by contrast, criticizes the "consent-based theory of citizenship", saying that "The Fourteenth Amendment was designed to ensure citizenship for 'all persons' born in the United States, particularly in response to ambiguities in legal status that attached to being the descendants of an outsider class, namely slaves."
^ (full text) as fears grew in some circles that the existing law encouraged parents-to-be to come to the United States to have children in order to improve the parents' chances of attaining legal residency themselves. Some media correspondents and public leaders, including former congressman Virgil Goode
, have controversially dubbed this the "anchor baby
" situation, and politicians have proposed legislation on this basis that might alter how birthright citizenship is awarded.
The Pew Hispanic Center determined that according to an analysis of Census Bureau data about 8 percent of children born in the United States in 2008 — about 340,000 — were offspring of unauthorized immigrants. In total, 4 million U.S.-born children of unauthorized immigrant parents resided in this country in 2009, alongside 1.1 million foreign-born children of unauthorized immigrant parents.
Bills have been introduced from time to time in Congress
which have sought to declare U.S.-born children of foreign nationals not to be subject to the "jurisdiction" of the United States, and thus not entitled to citizenship via the 14th Amendment, unless at least one parent were a U.S. citizen or a lawful permanent resident. For example, Representative
Nathan Deal
(a Republican from Georgia) introduced the "Citizenship Reform Act of 2005" (H.R. 698) in the 109th Congress, the "Birthright Citizenship Act of 2007" (H.R. 1940) in the 110th Congress, and the "Birthright Citizenship Act of 2009" (H.R. 1868) in the 111th Congress. Neither these nor any similar bills, however, have ever been approved by Congress.
Some legislators, unsure whether such acts of Congress
would survive court challenges, have proposed that the Citizenship Clause be changed through a constitutional amendment
. Senate Joint Resolution 6, introduced on January 16, 2009 in the 111th Congress, proposes such an amendment; however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the states.
The most recent judge to weigh in on the issue as to whether a constitutional amendment would be necessary to change the policy is Judge Richard Posner
who remarked in a 2003 case that "Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense." He explained, "A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it." Posner also wrote, that automatic birthright citizenship is a policy that "Congress should rethink" and that the United States "should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children."
Professor Edward J. Erler, California State University, has argued that "Congress began to pass legislation offering citizenship to Indians on a tribe by tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become an American citizen. This citizenship was based on reciprocal consent: an offer on the part of the U.S. and acceptance on the part of an individual. Thus Congress used its legislative powers under the Fourteenth Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to American jurisdiction. A constitutional amendment is no more required now than it was in 1923."
Republicans in the border state of Arizona
have indicated an intention to introduce state legislation which would seek to deny U.S. citizenship to Arizona-born children of illegal immigrant parents by prohibiting the issuance of a birth certificate unless at least one parent has legal status.
United States nationality law
Article I, section 8, clause 4 of the United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization. The Immigration and Naturalization Act sets forth the legal requirements for the acquisition of, and divestiture from, citizenship of...
by virtue of the circumstances of his or her birth. It contrasts with citizenship acquired in other ways, for example by naturalization
Naturalization
Naturalization is the acquisition of citizenship and nationality by somebody who was not a citizen of that country at the time of birth....
later in life. Birthright citizenship may be conferred by jus soli
Jus soli
Jus soli , also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state...
or jus sanguinis
Jus sanguinis
Ius sanguinis is a social policy by which citizenship is not determined by place of birth, but by having a parent who are citizens of the nation...
. Under United States law, any person born within the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
(including the territories of Puerto Rico
Puerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
, Guam
Guam
Guam is an organized, unincorporated territory of the United States located in the western Pacific Ocean. It is one of five U.S. territories with an established civilian government. Guam is listed as one of 16 Non-Self-Governing Territories by the Special Committee on Decolonization of the United...
, the U.S. Virgin Islands, and the Northern Mariana Islands
Northern Mariana Islands
The Northern Mariana Islands, officially the Commonwealth of the Northern Mariana Islands , is a commonwealth in political union with the United States, occupying a strategic region of the western Pacific Ocean. It consists of 15 islands about three-quarters of the way from Hawaii to the Philippines...
) and subject to its jurisdiction is automatically granted U.S. citizenship
United States nationality law
Article I, section 8, clause 4 of the United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization. The Immigration and Naturalization Act sets forth the legal requirements for the acquisition of, and divestiture from, citizenship of...
, as are many (though not all) children born to American citizens overseas.
Current U.S. law
Citizenship in the United States is a matter of federal lawFederal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...
, governed by the United States constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
.
Since the adoption of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
to the constitution on July 9, 1868, the citizenship of persons born in the United States has been controlled by its Citizenship Clause
Citizenship Clause
The Citizenship Clause refers to the first sentence of Section 1 in the Fourteenth Amendment to the United States Constitution. This clause represented Congress's reversal of that portion of the Dred Scott v...
, 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."
Statute, by birth within U.S.
, United States Federal law defines who is a United States citizen from birth. According to that law, the following acquire citizenship at birth:- "a person born in the United States, and subject to the jurisdiction thereof"
- "a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe" (see Indian Citizenship Act of 1924Indian Citizenship Act of 1924The Indian Citizenship Act of 1924, also known as the Snyder Act, was proposed by Representative Homer P. Snyder of New York and granted full U.S. citizenship to America's indigenous peoples, called "Indians" in this Act...
). - "a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States"
- "a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person"
U.S. territories
There are special provisions governing children born in current and former U.S. territories or possessions, including Puerto RicoPuerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
, the Panama Canal Zone
Panama Canal Zone
The Panama Canal Zone was a unorganized U.S. territory located within the Republic of Panama, consisting of the Panama Canal and an area generally extending 5 miles on each side of the centerline, but excluding Panama City and Colón, which otherwise would have been partly within the limits of...
, Panama
Panama
Panama , officially the Republic of Panama , is the southernmost country of Central America. Situated on the isthmus connecting North and South America, it is bordered by Costa Rica to the northwest, Colombia to the southeast, the Caribbean Sea to the north and the Pacific Ocean to the south. The...
, the Virgin Islands
Virgin Islands
The Virgin Islands are the western island group of the Leeward Islands, which are the northern part of the Lesser Antilles, which form the border between the Caribbean Sea and the Atlantic Ocean...
, Guam
Guam
Guam is an organized, unincorporated territory of the United States located in the western Pacific Ocean. It is one of five U.S. territories with an established civilian government. Guam is listed as one of 16 Non-Self-Governing Territories by the Special Committee on Decolonization of the United...
, and the Northern Mariana Islands
Northern Mariana Islands
The Northern Mariana Islands, officially the Commonwealth of the Northern Mariana Islands , is a commonwealth in political union with the United States, occupying a strategic region of the western Pacific Ocean. It consists of 15 islands about three-quarters of the way from Hawaii to the Philippines...
. There are also special considerations for those born in Alaska
Alaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
and Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
before those territories acquired statehood. For example, states that "[a]ll persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth".
Outlying possessions
According to persons born (or found, and of unknown parentage, under the age of 5) in an outlying possession of the U.S. are U.S. nationals but not citizens, unless otherwise provided in section 1401. The U.S. State Department has a publication, Acquisition of U.S. Nationality in U.S. Territories and Possessions which explains the complexities of this topic.Statute, by parentage
Under certain circumstances, U.S. citizenship can be acquired from one's parents. The following conditions affect children born outside the U.S. and its outlying possessions to married parents (special conditions affect children born out of wedlock: see below):- If both parents are U.S. citizens, the child is a citizen if either of the parents has ever legally resided in the U.S. prior to the child's birth
- If one parent is a U.S. citizen and the other parent is a U.S. national, the child is a citizen if the U.S. citizen parent has lived in the U.S. for a continuous period of at least one year prior to the child's birth
- If one parent is a U.S. citizen and the other parent is not, the child is a citizen if
- the U.S. citizen parent has been "physically present" in the U.S. before the child's birth for a total period of at least five years, and
- at least two of those five years were after the U.S. citizen parent's fourteenth birthday.
Children born overseas out of wedlock
There is an asymmetry in the way citizenship status of children born overseas to unmarried parents, only one of whom is a U.S. citizen, is handled.Title paragraph (c) provides that children born abroad after December 24, 1952 to unmarried American mothers are U.S. citizens, as long as the mother has lived in the U.S. for a continuous period of at least one year at any time prior to the birth.
paragraph (a) provides that children born to American fathers unmarried to the children's non-American mothers are considered U.S. citizens only if the father meets the "physical presence" conditions described above, and the father takes several actions:
- Unless deceased, has agreed to provide financial support to the child until he reaches 18,
- Establish paternity by clear and convincing evidence and, while the person is under the age of 18 years
- the person is legitimated under the law of the person’s residence or domicile,
- the father acknowledges paternity of the person in writing under oath, or
- the paternity of the person is established by adjudication of a competent court.
} paragraph (a) provides that acknowledgement of paternity can be shown by acknowledging paternity under oath and in writing; having the issue adjudicated by a court; or having the child otherwise "legitimated" by law.
Because of this rule, unusual cases have arisen whereby children have been fathered by American men overseas from non-American women, brought back to the United States as babies without the mother, raised by the American father in the United States, and later held to be deportable as non-citizens in their 20s. The final element has taken an especially significant importance in these circumstances, as once the child has reached 18, the father is forever unable to establish paternity to deem his child a citizen.
This distinction between unwed American fathers and American mothers was constructed and reaffirmed by Congress out of concern that a flood of illegitimate Korean and Vietnamese children would later claim American citizenship as a result of their parentage by American servicemen overseas fighting wars in their countries. In many cases, American servicemen passing through in wartime may not have even learned they had fathered a child. In 2001, the Supreme Court, by 5-4 majority in Tuan Anh Nguyen v. INS, first established the constitutionality of this gender distinction.
Eligibility for office of President
According to the Constitution of the United StatesUnited States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
only natural born citizens are eligible to serve as President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
or as Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...
. The text of the Constitution does not define what is meant by natural born: in particular it does not specify whether there is any distinction to be made between persons whose citizenship is based on jus sanguinis
Jus sanguinis
Ius sanguinis is a social policy by which citizenship is not determined by place of birth, but by having a parent who are citizens of the nation...
(parentage) and those whose citizenship is based on jus soli
Jus soli
Jus soli , also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state...
(birthplace). As a result, controversies have arisen over the eligibility of a number of candidates for the office.
Legal history
Throughout much of the history of the United States, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship, although the United States did not grant citizenship to all blackBlack people
The term black people is used in systems of racial classification for humans of a dark skinned phenotype, relative to other racial groups.Different societies apply different criteria regarding who is classified as "black", and often social variables such as class, socio-economic status also plays a...
former slaves until the passage of the Civil Rights Act of 1866
Civil Rights Act of 1866
The Civil Rights Act of 1866, , enacted April 9, 1866, is a federal law in the United States that was mainly intended to protect the civil rights of African-Americans, in the wake of the American Civil War...
, which was subsequently confirmed by the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. American Indian tribal members are not covered specifically by the constitutional guarantee, but they were made citizens automatically by the Indian Citizenship Act of 1924
Indian Citizenship Act of 1924
The Indian Citizenship Act of 1924, also known as the Snyder Act, was proposed by Representative Homer P. Snyder of New York and granted full U.S. citizenship to America's indigenous peoples, called "Indians" in this Act...
.
English common law
Many claim that birthright citizenship, as with much United States law, has its roots in English common lawEnglish law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
. Calvin’s Case, 77 Eng. Rep. 377 (1608), was particularly important as it established that under English common law “a person's status was vested at birth, and based upon place of birth—a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection."
This same principle was adopted by the newly formed United States, as stated by Supreme Court Justice Noah Haynes Swayne
Noah Haynes Swayne
Noah Haynes Swayne was an American jurist and politician. He was the first Republican appointed as a justice to the United States Supreme Court.-Birth and early life:...
: "All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England...since as before the Revolution." United States v. Rhodes, 27 Fed. Cas. 785 (1866). However, Calvin's Case is distinguishable, as a Scotsman was granted title to English land as his King and England's King (James) were one and the same. Calvin was not born in England. Moreover, in Calvin's Case, Lord Coke cited examples in which the native-born children of parents, either invading the country or who were enemies of the country, were not natural-born subjects because the birth lacked allegiance and obedience to the sovereign.
Federal law
The Naturalization Act of 1790Naturalization Act of 1790
The original United States Naturalization Law of March 26, 1790 provided the first rules to be followed by the United States in the granting of national citizenship. This law limited naturalization to immigrants who were "free white persons" of "good moral character". It thus left out indentured...
provided the first rules to be followed by the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
in the granting of national citizenship
Citizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
. Since that time, laws concerning immigration and naturalization in the United States
History of laws concerning immigration and naturalization in the United States
This is a history of laws concerning immigration and naturalization in the United States.-18th century:The first naturalization law in the United States was the Naturalization Act of 1790, which restricted naturalization to "free white persons" of "good moral character" who had resided in the...
have undergone a number of revisions.
1857 Dissenting Opinion of Supreme Court Justice Benjamin R. Curtis
Justice Roger B. TaneyRoger B. Taney
Roger Brooke Taney was the fifth Chief Justice of the United States, holding that office from 1836 until his death in 1864. He was the first Roman Catholic to hold that office or sit on the Supreme Court of the United States. He was also the eleventh United States Attorney General. He is most...
in the majority opinion in Dred Scott v. Sanford held that African Americans had never been and could never become citizens of the United States. Political scientist Stuart Streichler writes of the decision that Taney's decision was based on "a skewed reading of history.". Justice Benjamin R. Curtis in his dissent showed that under the Articles of Confederation
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
blacks had been citizens in five states and carried that citizenship forward when the Constitution was ratified. and wrote:
The first section of the second article of the Constitution uses the language "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in the history of this country at the time of the adoption of the Constitution, which referred Citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies, were the subjects of the King; that by the Declaration of independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States ... The Constitution has left to the States the determination what person, born within their respective limits, shall acquire by birth citizenship of the United States...
1862 opinion of the U.S. Attorney General
In 1862, Secretary of the TreasuryUnited States Secretary of the Treasury
The Secretary of the Treasury of the United States is the head of the United States Department of the Treasury, which is concerned with financial and monetary matters, and, until 2003, also with some issues of national security and defense. This position in the Federal Government of the United...
Salmon P. Chase
Salmon P. Chase
Salmon Portland Chase was an American politician and jurist who served as U.S. Senator from Ohio and the 23rd Governor of Ohio; as U.S. Treasury Secretary under President Abraham Lincoln; and as the sixth Chief Justice of the United States Supreme Court.Chase was one of the most prominent members...
sent a query to Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
Edward Bates
Edward Bates
Edward Bates was a U.S. lawyer and statesman. He served as United States Attorney General under Abraham Lincoln from 1861 to 1864...
asking whether or not "colored men" can be citizens of the United States. Attorney General Bates responded on November 29, 1862, with a 27-page opinion concluding, "I conclude that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, ...[italics in original]" In the course of that opinion, Bates commented at some length on the nature of citizenship, and wrote,
... our constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.
If this be a true principle, and I do not doubt it, it follows that every person born in a country is, at the moment of birth, prima facie a citizen; and who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the natural born right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.[italics in original]
Civil Rights Act of 1866
The Civil Rights Act of 1866Civil Rights Act of 1866
The Civil Rights Act of 1866, , enacted April 9, 1866, is a federal law in the United States that was mainly intended to protect the civil rights of African-Americans, in the wake of the American Civil War...
declared: "...all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."
Fourteenth Amendment to the United States Constitution
Since the adoption of the Fourteenth AmendmentFourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
to the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
on July 9, 1868, citizenship of persons born in the United States has been controlled by its Citizenship Clause
Citizenship Clause
The Citizenship Clause refers to the first sentence of Section 1 in the Fourteenth Amendment to the United States Constitution. This clause represented Congress's reversal of that portion of the Dred Scott v...
, 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."
Expatriation Act of 1868
This act, a companion piece to the Fourteenth Amendment, was approved on 27 July 1868.The Expatriation Act of 1868 led President Ulysses S. Grant
Ulysses S. Grant
Ulysses S. Grant was the 18th President of the United States as well as military commander during the Civil War and post-war Reconstruction periods. Under Grant's command, the Union Army defeated the Confederate military and ended the Confederate States of America...
to write, in 1873, that the United States had "led the way in the overthrow of the feudal doctrine of perpetual allegiance".
Dr. Edward J. Erler of California State University, San Bernardino
California State University, San Bernardino
California State University, San Bernardino, also known as Cal State San Bernardino or CSUSB is a public research university and one of the twenty three general campuses of the California State University system. The main campus sits on in the suburban University District of , United States, with...
, and Dr. Brook Thomas of the University of California, Irvine
University of California, Irvine
The University of California, Irvine , founded in 1965, is one of the ten campuses of the University of California, located in Irvine, California, USA...
, have argued that this Act was an explicit rejection of birth-right citizenship as the ground for American citizenship, basing that argument on the debate that surrounded the passage of this act.
1873 opinion of Attorney General
In 1873, The United States Attorney General published the following legal opinion concerning the Fourteenth Amendment:
"The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them."
Indian Citizenship Act of 1924
The Indian Citizenship Act of 1924 provided "That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States". This same provision (slightly reworded) is contained in present-day law as section 301(b) of the Immigration and Nationality Act of 1965 (8 USCUnited States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
1401(b)).
Sailor's Snug Harbor
In Inglis v. Trustees of Sailor's Snug Harbor, the Court negotiated the question of the disposition of an estate of a man born in New York in 1776, the Court resolves complicated questions of how citizenship was derived during the War of Independence. The court finds that jus soliJus soli
Jus soli , also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state...
is so consistent in American law as to automatically grant American citizenship to children born in New York City between July 4, 1776
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
and September 15, 1776
Landing at Kip's Bay
The Landing at Kip's Bay was a British amphibious landing during the New York Campaign in the American Revolutionary War on September 15, 1776, occurring on the eastern shore of present-day Manhattan....
, but not to children born in that city during the British occupation which followed September 15 of that year.
"Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.."
The Slaughter-House Cases
In the Slaughter-House Cases, — a civil rights case not dealing specifically with birthright citizenship — a Supreme Court majority mentioned in passing that "the phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States".Elk v. Wilkins
In Elk v. WilkinsElk v. Wilkins
Elk v. Wilkins, , was a United States Supreme Court case.John Elk, a Native American was born on an Indian reservation and subsequently moved to non-reservation U.S. territory, Omaha, Nebraska, where he renounced his former tribal allegiance and claimed citizenship by virtue of the Citizenship Clause...
, , the Supreme Court denied the birthright citizenship claim of an American Indian
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
. The court ruled that being born in the territory of the United States is not sufficient for citizenship; those who wish to claim citizenship by birth must be born subject to the jurisdiction of the United States. The court's majority held that the children of Native Americans were
Thus, Native Americans who voluntarily quit their tribes would not automatically become U.S. citizens. Native Americans were granted U.S. citizenship by Congress half a century later in the Indian Citizenship Act of 1924
Indian Citizenship Act of 1924
The Indian Citizenship Act of 1924, also known as the Snyder Act, was proposed by Representative Homer P. Snyder of New York and granted full U.S. citizenship to America's indigenous peoples, called "Indians" in this Act...
, which rendered the Elk decision obsolete.
United States v. Wong Kim Ark
In the case of United States v. Wong Kim ArkUnited States v. Wong Kim Ark
United States v. Wong Kim Ark, , was a United States Supreme Court decision that set an important legal precedent about the role of jus soli as a factor in determining a person's claim to United States citizenship...
, , the Supreme Court ruled that a person who
- is born in the United States
- of parents who, at the time of his birth, are subjects of a foreign power
- whose parents have a permanent domicileDomicile (law)In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
and residence in the United States - whose parents are there carrying on business and are not employed in any diplomatic or official capacity of the foreign power to which they are subject
becomes, at the time of his birth, a citizen of the United States by virtue of the first clause of the 14th Amendment of the Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
.
Canadians transferred to U.S. hospitals
Since the majority of Canadians live in the relatively narrow strip of land close to the long border with the United States, Canadians in need of urgent care are occasionally transferred to nearby American medical facilities. In some circumstances, Canadian mothers facing a high-risk delivery have given birth in American hospitals. Such children are American citizens by birthright. Since, in this regard, Canadian law is similar to that of the U.S., children born in Canada of American parents are also Canadian citizensCanadian nationality law
Canadian citizenship is typically obtained by birth in Canada, birth abroad when at least one parent is a Canadian citizen and was born or naturalized in Canada, or by adoption abroad by at least one Canadian citizen. It can also be granted to a permanent resident who lives in Canada for three out...
by birthright. In both situations that birthright citizenship is passed on to their children. In some cases birth in an American hospital (sometimes called "border babies") has resulted in people living much of their lives in Canada and unknowingly never holding Canadian citizenship, a group sometimes called Lost Canadians
Lost Canadians
Lost Canadians are those individuals who believe themselves to be Canadian citizens, but who lost their citizenship through the vagaries of either the current citizenship law or that in force prior to 1977....
.
Original meaning
During the original debate over the 14th Amendment Senator Jacob M. HowardJacob M. Howard
Jacob Merritt Howard was a U.S. Representative and U.S. Senator from the state of Michigan during and after the American Civil War.-Early life:...
of Michigan—the sponsor of the Citizenship Clause—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866
Civil Rights Act of 1866
The Civil Rights Act of 1866, , enacted April 9, 1866, is a federal law in the United States that was mainly intended to protect the civil rights of African-Americans, in the wake of the American Civil War...
, namely, that it excludes American Indians who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." Others also agreed that the children of ambassadors and foreign ministers were to be excluded. However, concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Senate Judiciary Committee Chairman
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...
Lyman Trumbull
Lyman Trumbull
Lyman Trumbull was a United States Senator from Illinois during the American Civil War, and co-author of the Thirteenth Amendment to the United States Constitution.-Education and early career:...
, the author of the Civil Rights Act, as well as President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Andrew Johnson
Andrew Johnson
Andrew Johnson was the 17th President of the United States . As Vice-President of the United States in 1865, he succeeded Abraham Lincoln following the latter's assassination. Johnson then presided over the initial and contentious Reconstruction era of the United States following the American...
, asserted that both the Civil Rights Act and the 14th Amendment would confer citizenship on them at birth, and no senator offered a contrary opinion.
Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard's proposal more effectively excluded Aboriginal Americans on reservations and in U.S. territories from citizenship. Senator James R. Doolittle of Wisconsin asserted that all Native Americans are subject to the jurisdiction of the United States, so that the phrase "Indians not taxed" would be preferable, but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States.
Edward Erler argues that since the Wong Kim Ark case dealt with someone whose parents were in the United States legally, there is no valid basis under the 14th Amendment for the practice of granting citizenship to U.S.-born children of illegal immigrants: "Even if the logic is that Wong Kim Ark became a citizen by birth with the permission of the United States when it admitted his parents to the country, no such permission has been given to those who enter illegally." Angelo Ancheta, by contrast, criticizes the "consent-based theory of citizenship", saying that "The Fourteenth Amendment was designed to ensure citizenship for 'all persons' born in the United States, particularly in response to ambiguities in legal status that attached to being the descendants of an outsider class, namely slaves."
Modern dispute
In the late 1990s opposition arose over the longstanding practice of granting automatic citizenship on a jus soli basis^ (full text) as fears grew in some circles that the existing law encouraged parents-to-be to come to the United States to have children in order to improve the parents' chances of attaining legal residency themselves. Some media correspondents and public leaders, including former congressman Virgil Goode
Virgil Goode
Virgil Hamlin Goode, Jr. , is an American politician, last serving as a Republican member of the United States House of Representatives. He represented the 5th congressional district of Virginia from 1997 to 2009...
, have controversially dubbed this the "anchor baby
Anchor baby
"Anchor baby" is a pejorative term for a child born in the United States to immigrant parents, who, as an American citizen, supposedly can later facilitate immigration for relatives...
" situation, and politicians have proposed legislation on this basis that might alter how birthright citizenship is awarded.
The Pew Hispanic Center determined that according to an analysis of Census Bureau data about 8 percent of children born in the United States in 2008 — about 340,000 — were offspring of unauthorized immigrants. In total, 4 million U.S.-born children of unauthorized immigrant parents resided in this country in 2009, alongside 1.1 million foreign-born children of unauthorized immigrant parents.
Bills have been introduced from time to time in Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
which have sought to declare U.S.-born children of foreign nationals not to be subject to the "jurisdiction" of the United States, and thus not entitled to citizenship via the 14th Amendment, unless at least one parent were a U.S. citizen or a lawful permanent resident. For example, Representative
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
Nathan Deal
Nathan Deal
John Nathan Deal is a United States politician, the 82nd and current Governor of Georgia. He was elected to the U.S. House of Representatives as a Democrat in 1992 but switched to the Republican Party in 1995...
(a Republican from Georgia) introduced the "Citizenship Reform Act of 2005" (H.R. 698) in the 109th Congress, the "Birthright Citizenship Act of 2007" (H.R. 1940) in the 110th Congress, and the "Birthright Citizenship Act of 2009" (H.R. 1868) in the 111th Congress. Neither these nor any similar bills, however, have ever been approved by Congress.
Some legislators, unsure whether such acts of Congress
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
would survive court challenges, have proposed that the Citizenship Clause be changed through a constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
. Senate Joint Resolution 6, introduced on January 16, 2009 in the 111th Congress, proposes such an amendment; however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the states.
The most recent judge to weigh in on the issue as to whether a constitutional amendment would be necessary to change the policy is Judge Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
who remarked in a 2003 case that "Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense." He explained, "A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it." Posner also wrote, that automatic birthright citizenship is a policy that "Congress should rethink" and that the United States "should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children."
Professor Edward J. Erler, California State University, has argued that "Congress began to pass legislation offering citizenship to Indians on a tribe by tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become an American citizen. This citizenship was based on reciprocal consent: an offer on the part of the U.S. and acceptance on the part of an individual. Thus Congress used its legislative powers under the Fourteenth Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to American jurisdiction. A constitutional amendment is no more required now than it was in 1923."
Republicans in the border state of Arizona
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
have indicated an intention to introduce state legislation which would seek to deny U.S. citizenship to Arizona-born children of illegal immigrant parents by prohibiting the issuance of a birth certificate unless at least one parent has legal status.
See also
- Birthright citizenship in other jurisdictions
- United States nationality lawUnited States nationality lawArticle I, section 8, clause 4 of the United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization. The Immigration and Naturalization Act sets forth the legal requirements for the acquisition of, and divestiture from, citizenship of...
- Citizenship in the United StatesCitizenship in the United StatesCitizenship in the United States is a status given to individuals that entails specific rights, duties, privileges, and benefits between the United States and the individual...
- Birth tourismBirth tourism"Birth tourism" is a term for travelling to a country that practices birthright citizenship in order to give birth there, so that the child will be a citizen of the destination country.-United States:...
- Natural-born citizenNatural-born citizenStatus as a natural-born citizen of the United States is one of the eligibility requirements established in the United States Constitution for election to the office of President or Vice President...
- Birther