Birthright citizenship in the United States of America
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Under the US tradition of birthright citizenship, any individual born within the United States is automatically granted US Citizenship, regardless of the legal status or the citizenship of that individual’s mother or father, with the exception of children born to foreign diplomats and children who were a) born to hostile enemy forces and b) born on US territory while it is under the control of a foreign power. Throughout 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.[1]
Birthright citizenship has its roots in English common law. 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."[2] 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…since as before the Revolution." United States v. Rhodes, 27 Fed. Cas. 785 (1866).
The modern world is divided up into nations and sovereign territories like Puerto Rico, with each nation, at least nominally, exercising control over its own territory and the people who reside within that territory. Amongst modern nations citizenship at birth is conveyed in one of two ways; either though Jus soli (the right of the soil or the land) meaning that one’s nationality is determined by the place of one's birth; or through jus sanguinis (the right of blood) where nationality is determined by the nationality of one's descent (parents). Birthright citizenship is the term used for Jus soli as it is applied under US law.
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[edit] Legal Background
[edit] Fourteenth Amendment
Opponents of birthright citizenship explicitly reject jus soli, or that one’s nationality is determined by the place of one's birth. They insist on a strict jus sanguinis, "right of blood", process for obtaining the rights of citizenship at birth. While both philosophies have long histories in European civilization, the United States Constitution has included implicit acceptance of jus soli from the beginning. (e.g. "No person except a natural-born citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;" U.S. Const. art. I, § 5, cl. 5)
The Fourteenth Amendment to the Constitution 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."
[edit] Federal Law
Current (as of 2006) United States Federal law (8 USC § 1401) states that "a person born in the United States, and subject to the jurisdiction thereof" is a United States citizen from birth.
[edit] Congressional debate on the Fourteenth Amendment
During the course of the Senate floor debate there was considerable dispute as to whether the Citizenship clause was worded strongly enough, or whether it need to be rewritten to more specifically exclude members of American Indian tribes, other ethnic groups seen at that time as being undesirable, or both. The most contentious issue was whether the words “excluding Indians not taxed” should be added in so that the amendment would read "….subject to the jurisdiction thereof, excluding Indians not taxed, are citizens…." This was voted down.
Over all the debate was contentious. At one point the word States was changed to State, on the grounds that “States” was a typo on the part of the printer. The change was made, but not without a biting remark.
Senator Jacob M. Howard of Michigan, the author of the clause, postulated that "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. "
To this Senator Edgar Cowan of Pensylvania added “Are the people of California are to remain quiescent while they are being overrun by a flood of immigration of the Mongrel (Chinese) race? Are they to be immigrated out of house and home by the Chinese? I think not…there are nations of people with whom theft is a virtue and falsehood a merit… it is necessary, a part of the nature of things, that society shall be more or less exclusive. It is utterly and totally impossible to mingle all of the various families of men, from the lowest form of the Hottentot, up to the highest Caucasian, in the same society”
Senator John Conness of California replied that his State was not in danger of being over run by the Chinese. He declared “We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the constitution of the United States to be entitled to civil rights and equal protection before the law with others.”
Senator Lyman Trumbull of Illinois stated; “The provision is that ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens’ That means ‘Subject to the complete jurisdiction thereof’ … Not owing allegiance to anybody else. That is what it means.”
Senator Reverdy Johnson of Maryland argued that the amendment was so loosely written that “…when, therefore courts come to consider the meaning of this provision…” the courts would find that Native Americans “…would become citizens by virtue of this amendment.” He argued that the provision needed to be rewritten and strengthened.
As a matter of historic legal precedent, an alien entering any foreign country subjects himself to the jurisdiction of that country, unless exempted by war or treaty. In application, a modern sovereign state has jurisdiction over all foreigners within its territory except foreign heads of state, diplomats and other high-level government figures. This is reflected in US immigration law in that the child of a foreign ambassador born inside the United States is not a US citizen at birth. (The same situation for a foreign soldier on exchange would yield a US citizen baby). Because he is outside the jurisdicion of the United States, an ambassador is also granted diplomatic immunity from other US laws, such as those prohibiting drunk driving.
[edit] Supreme Court decisions
[edit] Elk v. Wilkins
The United States Supreme Court first ruled on the meaning of this phrase in Elk v. Wilkins, . The Court determined that children born domestically to American Indians were actually under the jurisdiction of the tribe, which itself had no allegiance to the United States, and was therefore not under the jurisdiction of the United States.
[edit] United States v. Wong Kim Ark
In United States v. Wong Kim Ark, , the Supreme Court extended (re-affirmed) U.S. jurisdiction to include all aliens lawfully residing within the United States, who were not explicitly protected from its jurisdiction by treaty. This includes most temporary residents, soldiers and immigrants, but not diplomats and agents of foreign governments. The subject of Wong Kim Ark was a child of Chinese citizens who were permanent residents. Wong Kim Ark also resided in the US, never renounced his citizenship, and never moved his residency outside of the United States.
There have been several subsequent cases involving the citizenship status of people born to aliens legally within the United States, but the Supreme Court has never explicitly ruled whether-or-not the Fourteenth Amendment grants children of illegal immigrants automatic citizenship. The actual "application" of Wong Kim Ark to the domestically born children of illegal aliens originates from the use of birth certificates as proof of citizenship.
In the case of aliens inside the United States on visas, a High Court ruling is probably unnecessary. Most visas are established by treaty, and by treaty, the jurisdiction of the United States might not be absolute, however; these treaties usually define the citizenship status of children born abroad. The Supreme Court briefly approached this issue during Hamdi v. Rumsfeld[3]. Hamdi, who was born in the U.S. to Saudis on a temporary visa, was referred to as a "presumed American citizen" by justices Scalia and Stevens.
Traditionally, by amicably entering the country, with the intent of respecting its laws and people, foreigners submit themselves to U.S. jurisdiction. People opposed to the practice of anchor babies, such as Representative Tom Tancredo, have proposed that illegal immigrants do not subject themselves to the jurisdiction of the United States[4]. The very act of entering the country without permission is in defiance of its laws, as is their continued presence inside its borders, and the activities associated with that continued presence. In this argument, illegal immigrants are functionally more like the Native Americans in Elk v. Wilkins, than the immigrants in Wong Kim Ark, and should be considered as still being under the jurisdiction of their home country.
[edit] Plyler v. Doe
Plyler v. Doe, did not explicitly address the question of so-called "anchor babies" born in the United States to illegal immigrant parents; the children dealt with in the case were born outside the U.S. and had entered the country illegally along with their parents.
However, the court's reasoning was significant because it ruled that illegal immigrants residing in a state are "within the jurisdiction" of that state. This implies that the U.S.-born children of such immigrants are "subject to the jurisdiction [of the United States]", and therefore qualify for birthright citizenship under the first clause of the Fourteenth Amendment. This implication is made explicit in a footnote that states
- no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful [5].
[edit] Congressional actions
Congress could still attempt to decide the citizenship of all persons born within the United States via legislation, as was done for Native Americans in the Indian Citizenship Act of 1924. The Citizenship Reform Act of 2005 (currently proposed as H.R. 698) would, if enacted into law, amend the Immigration and Nationality Act to state that the domestically born children of foreign nationals would not be subject to U.S. jurisdiction, and thus would not be granted automatic citizenship, unless at least one parent were a U.S. citizen or lawful permanent resident. It should be noted, however, that H.R. 698 has not yet been voted upon by either house of Congress; the likelihood of its being passed by the current (109th) Congress is slim. Bills similar to H.R. 698 have been introduced in previous Congresses, but none of them were ever acted upon either. If such a law were ever enacted it would certainly be challenged in the courts as unconstitutional.
Some legislators, unsure of whether an act of Congress regarding the citizenship status of "anchor babies" would survive court challenges, have proposed that the Citizenship Clause be changed through a constitutional amendment. House Joint Resolution 46 in the 109th Congress proposes such an amendment; however, neither this nor any other proposed amendment has yet been approved by Congress for ratification by the States.
[edit] References
Legislation Denying Citizenship at Birth to Certain Children Born in The United States. United States Department of Justice, Office of Legal Counsel: testimony to Congress given December, 1995, arguing that legislation of this sort would be unconstitutional
Congressional Globe All Senate debate quotes are from the Congressional Globe (precursor of the Congressional Record) for the 39th Congress, 1st Session. P. 2890-95.
