The birthright generation is a term used by immigrant advocates to identify US born citizens protected by the Fourteenth Amendment to the United States Constitution, which grants American citizenship to all born on American soil, and has one or both undocumented parents. Birthright citizenship may be conferred either by jus soli or jus sanguinis. Under United States law, any person born within the US (including the territories of Puerto Rico, Guam, the US Virgin Islands, and the Northern Mariana Islands) and subject to its jurisdiction is automatically granted US citizenship. The alternative term is Anchor Baby; a term used by immigration reductionists in the United States to describe a child born in the US to undocumented immigrants. It is generally used as a reference to the supposed role of the child, who as a US citizen through the legal principle of jus soli, may facilitate immigration for relatives through family reunification.Family reunification, or family-based immigration, in the USA is a lengthy process and limited to categories prescribed by provisions of the Immigration and Nationality Act of 1965. This misconception has led those that oppose citizenship rights for children of immigrants, that newborns would facilitate residency and citizenship rights for their parents. However, an American child cannot claim a parent until the age of 21 .[1]
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An estimated 340,000 of the 4.3 million newborns in the United States in 2008 were the offspring of undocumented immigrants.[2]
Undocumented immigrants make up roughly 4% of the adult population in the United States. However, because they are young and have high birthrates, their children make up a larger share of both the newborn population (8%) and the child population (7% of those younger than age 18).[2]
The United States v Wong Kim Ark Case 1898 shed light on the validity of the Citizenship Clause. Wong Kim Ark, born in California to Chinese merchants living in the US, left to visit China and then sought to re-enter the United States based on his status as a citizen from birth. The government refused entry, claiming that under Chinese law Wong Kim Ark owed allegiance to China and thus lacked the complete allegiance to the US required by the Citizenship Clause.[3]
The 14th Amendment's citizenship clause, according to the court's majority, had to be interpreted in light of English common law tradition that had excluded from citizenship at birth only two classes of people: (1) children born to foreign diplomats and (2) children born to enemy forces engaged in hostile occupation of the country's territory. The majority held that the "subject to the jurisdiction" phrase in the 14th Amendment specifically encompassed these conditions.[4] In Plyler v. Doe (1982), Supreme Court reaffirmed that the phrases in 14th Amendment: subject to the jurisdiction thereof and within its jurisdiction were equivalent and that both referred to physical presence. The Supreme Court stated in a footnote of the 1982 Plyler v. Doe case that "[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States", and that "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]
Proponents of reconsideration of the Fourteenth Amendment have expressed concern in the validity of citizenship of members of the birthright generation[6]. In an interview with The Hill Senator Mitch McConnell noted: “I think we ought to take a look at it — hold hearings, listen to the experts on it. I haven’t made a final decision about it, but that’s something that we clearly need to look at. Regardless of how you feel about the various aspects of immigration reform, I don’t think anybody thinks that’s something they’re comfortable with."[6] Senators Harry Reid and Lindsey Graham have been quoted supporting amendments to the citizenship clause for children born to undocumented immigrants. Harry Reid argues "We should change our Constitution and say if you come here illegally and you have a child, that child’s automatically not a citizen."[7]
Another term referencing the opposition of the citizenship clause has been birth tourism. Birth tourism is defined as traveling to a country that grants birth citizenship to the newborn child[8].
A nationwide survey by the Pew Research Center for the People & the Press in June 2010 found that, by 56% to 41%, the public opposes changing this provision of the Constitution.