The Question of Birthright Citizenship
If an unauthorized alien gives birth to a child on American soil, is the child automatically a United States citizen? Americans have long assumed that the answer is yes — that the child is a birthright citizen regardless of the parent's legal status, and that such citizenship is required and guaranteed by the Constitution. But a closer examination of the matter suggests that this answer is actually incorrect, and that birthright citizenship for the children of immigrants here illegally is better understood as a matter for Congress and the American people to resolve.
We first took up this question more than three decades ago in a book, Citizenship Without Consent: Illegal Aliens in the American Polity, published in 1985 by Yale University Press. Significant political and legal developments have occurred since then, but none alters our core conclusion: Under the best reading of the Citizenship Clause of the 14th Amendment, the citizenship status of the American-born children of illegal immigrants is not mandated by the Constitution. Rather, this clause empowers Congress to decide the matter in its policy discretion (so long as it does not violate other constitutional rights), thereby giving specific content to the principle of popular consent — perhaps the fundamental principle of American democracy — that the clause adopted.
How Congress should exercise this discretion is a separate and more difficult policy question, especially for scholars like us who strongly favor even more legal immigration than the U.S. now accepts, and a generous amnesty for those now here illegally. And it may well become a pressing political question. Donald Trump pronounced as a presidential candidate in 2016 that he objected to birthright citizenship for these children. He has so far declined to take up the issue as president, but that could easily change — and the broader effect of his presidency on the national debate over immigration could move birthright citizenship to a more prominent place on the Republican agenda.
It is worth understanding, then, why birthright citizenship is a legitimate political and policy question, and a hard one.
THE CONSTITUTIONAL CONTEXT
The original Constitution was silent about immigration and the qualifications for citizenship, other than a provision empowering Congress to regulate naturalization. The first mention of national citizenship in the document came in 1868 with the ratification of the 14th Amendment. Its first section — the Citizenship Clause — reads as follows: "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." The precise meaning of the phrase that we have italicized — "and subject to the jurisdiction thereof" — is at the heart of the debate over whether the U.S.-born children of illegal aliens are automatic birthright citizens.
The intention of the 14th Amendment's framers or ratifiers specifically regarding the children of foreigners present in America in violation of U.S. laws is essentially impossible to discern. No framer or ratifier mentioned that topic, so no specific intent is there to be found. Birthright citizenship originated in feudal doctrines of perpetual allegiance that the American revolutionaries rejected in favor of a consensual view that, as the Declaration of Independence put it, governments derive "their just powers from the consent of the governed," and that people are entitled, and perhaps duty-bound, to withdraw their consent from unjust governments. The best way to make sense of the 14th Amendment's Citizenship Clause, therefore, is to attend both to constitutional history (that is, what its framers sought to accomplish by it) and to constitutional theory, or how to make the clause fit most comfortably with general principles of American republicanism, including commitments to popular self-governance, civil solidarity, and inalienable human rights.
In a vivid instantiation of the perennial tension among those commitments — the problem of tyranny of the majority — Chief Justice Roger Taney in the 1857 Dred Scott decision had turned these consensual premises into an insistence that African-Americans could not be citizens of the United States. He thought they were neither parties to the original social contract that created the Constitution nor eligible for naturalization under the nation's laws. The Citizenship Clause's chief aim was to overturn Dred Scott and guarantee citizenship to all persons of African descent born on U.S. soil or naturalized here. But its guarantee of birthright citizenship to the U.S.-born was not fully universal, because the clause contained an opaque qualifying phrase: "and subject to the jurisdiction thereof." The most important and under-studied question in regard to the Citizenship Clause is the meaning of this phrase — then and now — given the framers' and ratifiers' intentions.
As we elaborated in our book, the context of 1868 is key to interpreting that phrase. The United States did not restrict immigration at that time, but did exclude several groups born on soil governed by the U.S. from birthright citizenship. Plainly, the phrase "subject to the jurisdiction" was meant to leave Congress with the power to regulate access to birthright citizenship for groups to whose presence or membership it did not consent.
So what does "subject to the jurisdiction" mean? This inquiry must focus on the clause's treatment of Native Americans born into tribes. Everyone agrees that "subject to the jurisdiction" was intended to exclude the children of foreign diplomats, occupying enemy armies, and children born to foreigners while on foreign vessels in U.S. waters — even though they are then literally subject to our jurisdiction. Everyone also agrees that the 14th Amendment's framers intended to exclude tribal Native Americans. (The Supreme Court would so hold in 1884, and Congress chose to confer statutory citizenship on them in 1924.)
These exclusions from automatic citizenship at birth reflected the general principle animating the phrase "subject to the jurisdiction": the mutual consent between the parents and the U.S. government to their legal presence on U.S. soil as immigrants owing allegiance to the United States. Native Americans in tribes fit that description of the excluded; they were "domestic dependent nations," as Chief Justice John Marshall famously put it decades earlier, who did not profess or owe full allegiance to our government.
Some critics of our 1985 book, such as law professor Garrett Epps, argue that during the debates over the amendment, the term "allegiance" was deliberately discarded in favor of "jurisdiction," and that "jurisdiction" meant simply "actual subjection to the lawmaking power of the state," or more particularly, being subject to court trials. They also contend that persons born into tribes on America's frontiers were generally not subject to American legislative or judicial power — unlike unauthorized aliens today. Some critics have also maintained that the abolitionist framers of the 14th Amendment did not include Native Americans born into tribes in the clause's coverage because they wished to bolster recognition of tribal autonomy, rather than to impose presumably unwanted American citizenship and governance upon them. Chief Justice Marshall argued similarly in his famous 1832 opinion in Worcester v. Georgia, where he suggested that the native tribes had become "dependent" allies to receive American protection, "without involving a surrender of their national character." To Marshall, it was self-evident that the maintenance of this now-dependent national status was inconsistent with the tribes holding U.S. citizenship under the original Constitution.
Some supporters of the 14th Amendment focused on the reality that American courts could not and did not routinely hold trials for offenses committed by tribal members living on reservations; as just noted, some framers wanted the U.S. to recognize substantial tribal sovereignty, consistent with Marshall's formulation. But these two arguments by critics regarding the meaning of "jurisdiction" are different: While one stresses the lack of actual U.S. power to govern tribal populations, the other stresses the lack of legitimate U.S. power to govern them.
And both arguments are historically vulnerable. By 1868, federal judges, lawmakers, and executive officials had already held that the U.S. could legislate over all the tribes directly, a power that Congress began to exercise on a regular basis with the Indian Appropriation Act of 1871. Tribe members were also subjected to federal trials under some circumstances even earlier, by the 1850s. But the pivotal point here is this: To insist that the Citizenship Clause treats these two groups differently, bestowing citizenship on children of unauthorized aliens but not on children of Native Americans in tribes, is to say that the children of unauthorized aliens, unlike children born into tribes, are born fully subject to the actual and legitimate jurisdiction and power of the U.S. government — even though their very presence effectively denies the government's actual power and authority.
We see no basis for this distinction. The fact that some of the clause's supporters thought that the government could not and should not confer citizenship on the native tribes in no way implies that they would have wanted to confer automatic citizenship on the children of those present in the U.S. in violation of American law. Indeed, if anything, it implies the opposite. Rather, their treatment of tribal Native Americans suggests their determination to make mutual consent to full membership the sine qua non for constitutionally mandated citizenship.
The Supreme Court has focused on the meaning of "subject to the jurisdiction" in the clause only twice, and both decisions support our argument. In Elk v. Wilkins (1884), the Court held that a tribal member born on a reservation who then moved to live "among the white citizens of a state" was not a birthright citizen because he was born within the tribe. And in another case, U.S. v. Wong Kim Ark (1898), the government authorized the parents' presence by granting them (through a treaty) full legal-resident status, so their U.S.-born child was deemed a birthright citizen.
BIRTHRIGHT CITIZENSHIP IN THEORY AND PRACTICE
In thinking about what the Citizenship Clause's "subject to the jurisdiction" proviso was intended to mean, recall the obvious fact that the category of immigrant parents here in violation of U.S. law simply did not exist at the time. Federal regulation of immigration (other than a ban on the international slave trade, foreshadowed in the original Constitution) did not begin until 1875. Some states had enacted public-health requirements for immigrants, but Congress did not enact significant bans, especially limited quotas, until well into the 20th century.
Even so, birthright citizenship did become an issue in the late-19th century when organized political opposition to Chinese immigration became widespread. Movements advocating constitutional amendments to end birthright citizenship for the children of illegal aliens (and sometimes even of immigrant parents with legal status) arose in the 1920s and periodically ever since. As law professor Rachel Rosenbloom notes, these advocates used "highly racialized language of crisis and invasion," and sadly, some still do so today.
Still, the fact that many opponents of birthright citizenship for the children of unauthorized parents harbor anti-immigrant views does not mean that their bottom-line position is wrong; only their animus is. Both of us have repeatedly celebrated (and even participated in) the civil-rights movement's triumphs over legally protected racial inequality as among the greatest and most inspiring developments in American history, and we would never knowingly give any aid or comfort to proponents of racism or race-based restrictionism. Our writings have also celebrated the paradigm-shifting 1965 immigration law and promoted even more legal immigration, in opposition to restrictionists. But our opposition to the threats that racists and restrictionists have always posed to immigration does not bear on, much less contradict, the framers' firm commitment to democratic self-governance in defining the boundaries of our national political community.
In order to find the best answer to the question of whether the clause mandates birthright citizenship for children of unauthorized aliens, many scholars have sought to gain additional guidance, as we have, from the larger political and moral theories and commitments embodied in American constitutionalism. We recognize that American constitutionalism, at its most general level, includes often-conflicting commitments to three goals: consent-based democratic self-government, social solidarity, and individual rights. Americans sometimes seek to reconcile these three commitments by prioritizing fundamental rights. But this only points to the question of whether birthright citizenship for this group is indeed a fundamental right.
Broadly speaking, when the Constitution itself does not answer important questions with clarity, decision-making should usually be left to the people's elected representatives in Congress, so long as they do not violate fundamental rights. This properly leaves Congress with the authority to decide the question of birthright citizenship for these children. Does the Citizenship Clause constitute this consent to their birthright citizenship? Again, no one at the time even raised the question, for a single reason: The group did not then exist. Should Congress's failure to alter the status quo by statute or by constitutional amendment support an inference that the American people have consented to this status quo?
This congressional inaction might have some bearing on the public debate over the political and policy issues raised by our interpretation of the Citizenship Clause. The two of us differ, however, about how this inaction should affect the interpretation of whether the clause's consensual requirements have been met. Given that bills to repeal birthright citizenship for the children of unauthorized aliens have failed repeatedly for over two decades, Smith argues that Congress has effectively decided in favor of the current policy. In contrast, Schuck maintains that no such inference should be drawn legally or politically. Thousands of legislative proposals are introduced in each Congress; the vast majority of them go nowhere, for a host of reasons. This is why the Supreme Court routinely states that it will not draw any inferences about congressional intent from such inaction.
Smith points to an exception to this refusal, citing Justice Robert Jackson's concurrence in Youngstown Sheet & Tube Co. v. Sawyer, also known as the "Steel Seizure Case." Jackson rejected the particular seizure at issue there, relying in part on Congress's recent refusal to pass a bill authorizing certain executive takeovers of steel mills. Schuck responds that Jackson's was only a concurring opinion (though it became a very influential one for other reasons) on a different question (i.e., the terms of executive-congressional power sharing), and thus would not control the question of whether congressional inaction on bills to deny birthright citizenship for this group of children amounts to approval of the status quo.
Some scholars, notably Princeton University president Christopher Eisgruber, insist that the Constitution's democratic commitments require the U.S. government to be responsive to all those — including undocumented immigrants and their children — over whom it exercises power and authority. Eisgruber maintains that this "Responsiveness Principle" justifies a rule of birthright citizenship to protect an easily neglected and unpopular portion of the governed. But such concerns, we think, are best addressed by democratic policymaking majorities or by applying principles derived from the Equal Protection Clause to specific government actions that unconstitutionally disadvantage aliens. This approach, which the Court used in Plyler v. Doe, a 1982 decision striking down Texas's exclusion of undocumented children from its public schools as a violation of equal protection, is better than removing the fundamental issue of birthright citizenship from democratic decision-making.
Unauthorized aliens vary greatly in their degree of attachment to American life. Congress is best equipped to judge whose claims to transmit birthright citizenship to their children are warranted, perhaps depending on how long, and how law-abidingly, they have resided and acculturated here. This criterion of a "genuine connection" with American society, which also draws on international-law precedents, is further elucidated below.
Some commentators support birthright citizenship for this group based on constitutional theories that stress human rights over democratic self-governance. To them, the Constitution is best understood today as an "anti-subordination," "anti-domination," or "anti-caste" instrument for preventing what they regard as unjust systems of public and private hierarchy and exploitation. They interpret the post-Civil War amendments, particularly the 14th Amendment with its Equal Protection Clause, as the centerpiece of this egalitarian project.
For us, however, the central issue is whether the framers entertained a conception of consent to membership in the American polity that would leave to Congress the authority to sort through and resolve the competing concerns raised by the question of birthright citizenship. These include unconsented presence, social solidarity, the risk of entrenching these children's existing disadvantages, alternative ways in which non-citizens' basic human rights might be protected, and the question of whether judicial review of congressional decision-making on these issues can adequately safeguard constitutional values.
As we have seen, the framers vested such discretion in Congress with respect to Native Americans, whose presence in the country (which of course long predated that of the framers themselves) was manifestly accepted. This was recognized in the 14th Amendment's own text, a long line of treaties with the tribes, and legislation regulating their citizenship. We doubt the framers would have denied Congress that same policy choice with respect to a group whose very presence in the country — by definition — violates federal law. Basic constitutional protections for this group would certainly have been granted, as in Plyler. But automatic citizenship without public debate and congressional consent would probably not have been.
Some scholars who have reflected on birthright citizenship are motivated by facets of political theory, especially democratic theory. These include what is called the "boundary problem": whether and how a democratic polity can be democratically constituted and circumscribed. Some suggest that each "demos" must be defined in terms of the residents of territorially constituted nation-states, even though those states were not formed through predominantly democratic processes. Birthright citizenship can seem desirable from this perspective, as it ties democratic membership to shared territorial origins. Even so, this does not mean that birthright citizenship must automatically extend to those present on a state's territory in violation of its laws.
Other democratic theorists, including Bonnie Honig, claim that defining the boundaries of a demos through democratic processes can foster valuable deliberation over the prior question of who may participate in those contested approval processes. But absent clear constitutional indications to the contrary, which are lacking here, the basic question regarding who should decide on membership must rest with the elected representatives of the American people.
In reasoning about birthright citizenship for the children of unauthorized immigrants, many of them may well have legitimate moral or humanitarian claims upon American society that Congress is obliged to take seriously, including obligations that Americans may have incurred by our own conduct: for example, by encouraging immigrants to migrate to the U.S., by countenancing their presence with inadequate enforcement, and by benefitting from their labor. But some political theorists, notably Ayelet Shachar, go further, maintaining that birthright citizenship contributes to a world of nation-states that are highly unequal, nation-states in which billions of people's life prospects are severely diminished or greatly enhanced by the accident of where they happen to have been born. In the end, Shachar calls not for the elimination of the nation-state system but for a "jus nexi" rule of membership, derived from international-law cases that rest citizenship on the "social fact of attachment," the "genuine connection" people have with the population of a state.
But whereas Congress could and surely would use such "genuine connection" as a consideration in deciding whom to include, on what terms, and with what status, Shachar would empower judiciaries in some circumstances to decide that such connections make persons legal citizens of their state of residence, even if the state's other, more representative organs disagree. In the U.S., however, this notion of judicially conferred membership (except in the context of interpreting or applying a citizenship-related statute) has no basis in either constitutional law or liberal-democratic theory. Courts do not possess this power, and Congress would certainly not grant it to them.
THE CHANGING POLICY CONTEXT
In the third of a century since we wrote our book arguing that birthright citizenship for the U.S.-born children of unauthorized aliens is not constitutionally mandated, the political and policy environment in which Congress would (if it chose) reconsider this policy has changed significantly.
In November 2016, the Republican Party won control of the White House and both houses of Congress after a campaign in which candidate Donald Trump denounced automatic birthright citizenship for these children and called for ending this practice. To our knowledge, no previous candidate for the presidency had ever done this (although the 1996 Republican Party platform did). Having now assumed the powers of the presidency, his position on birthright citizenship is reason enough to re-examine the current facts on this issue, as they may acquire new importance in the near future.
In a policy paper released on August 16, 2015, candidate Trump stated that birthright citizenship is "the biggest magnet for illegal immigration." Days later, in a heated exchange with Univision anchor Jorge Ramos while on the campaign trail in Iowa, Trump questioned whether the 14th Amendment provides birthright citizenship to the children of undocumented persons:
A woman is getting ready to have a baby, she crosses the border for one day, has the baby, all of a sudden for the next 80 years, hopefully longer, but for the next 80 years we have to take care of the people. No, no, no, I don't think so. Excuse me, some of the greatest legal scholars — and I know some of the television scholars agree with you. But some of the great legal scholars agree that that's not true....There are great legal scholars, the top, that say that's absolutely wrong.
While Trump was opposing birthright citizenship on the campaign trail, a number of other GOP primary candidates, including Wisconsin governor Scott Walker and New Jersey governor Chris Christie, also voiced support for re-examining the matter. South Carolina senator Lindsey Graham in 2010 called birthright citizenship a "mistake," and Kentucky senator Rand Paul co-sponsored a bill in 2011 that would "only extend citizenship to babies born in the U.S. if one or more of their parents was a citizen, immigrant with legal status, or member of the armed forces."
Trump advanced no specific proposal for how he would change the birthright-citizenship rule, and in office he has said little or nothing about it. He did not include any proposal on birthright citizenship in his sweeping immigration-reform proposal released in October 2017. Still, this mercurial president, frustrated by the failure of his proposal for a wall on the Mexican border and by a series of judicial setbacks on his other migration-reform proposals, may decide to actively promote his 2015 view.
If expressed views are one significant way in which the political context around birthright citizenship has changed, the sheer size of the relevant population is another. Nobody can be certain, of course, about the number of children born in the U.S. to undocumented parents. In October 2016, the Pew Research Center, drawing on standard Census Bureau sources, estimated that about 275,000 such babies were born to at least one unauthorized-immigrant parent in the U.S. in 2014, a decline from 330,000 in 2009. They represented about 7% of total U.S. births in 2014. Pew also estimated that,
In 2014, there were 4.7 million U.S.-born children younger than 18 living with unauthorized-immigrant parents. There also were 725,000 children younger than 18 who were unauthorized immigrants themselves and lived with unauthorized-immigrant parents. These totals do not count U.S.-born children of unauthorized immigrants who do not live with their parents.
The share of children of unauthorized immigrants who are U.S. born has been increasing over the past two decades. This likely is related to the fact that long-term residents constitute a rising share of unauthorized immigrants. In 2014, two-thirds of adult unauthorized immigrants had lived in the U.S. for a decade or more, compared with 41% in 2005.
One result of these conditions is a growing number of "mixed-status families" in which at least one parent is undocumented and at least one child is a birthright citizen. Inferences drawn from various data sources suggest that at least 4.1 million U.S.-citizen children lived with at least one unauthorized-immigrant parent during the 2009-13 period.
As the Iowa exchange between Trump and Ramos suggests, the aspect of birthright citizenship that draws almost universal condemnation by Americans is so-called "birth tourism." This occurs when foreign mothers come to the U.S. briefly to have their babies here, thus securing the enormous advantage of U.S. citizenship for these children — and possibly visas for the parents once the citizen child reaches the age of 21 and can petition for such parent visas. Not surprisingly, estimates of the frequency of this practice vary widely. One high-end estimate finds a total of 60,000 from China alone in 2014, a six-fold increase from 2012.
These changes in political and demographic context, along with related changes in the broader character of American government, have altered the basic calculus around birthright citizenship over time. In Citizenship Without Consent, we speculated that "[t]o a pragmatic political system, the fact that birthright citizenship derived historically from alien philosophical premises may in the end have seemed less important than the fact that it has ‘worked' in the sense of performing practical tasks that have been set for it." We discussed the rule's main practical advantages: its inclusiveness, its clarity and administrative simplicity, and its constraint on statelessness. We also noted, however, that each of these advantages was gained only by way of substantial overbreadth: that is, by including in our polity millions of infants whose parents Congress had prohibited from even entering the country, much less allowing them to transmit automatic citizenship to their children in this way.
Our book discussed two historical developments that magnified this incongruity: increased illegal migration and an expanding welfare state. Each of these developments — and their trajectory since the book's publication — now renders the policy of automatic birthright citizenship for this group even more controversial and consequential than it was then.
The first development is increased illegal migration to the United States. In 1983, the number of illegal immigrants in the U.S. was estimated at slightly over 2 million, representing just under 1% of the total population. Between 1983 and 2016, Congress enacted a series of legalization programs and numerous measures to strengthen both border and interior enforcement, including stricter sanctions, a vastly increased budget for enforcement and personnel, and more detention capacity. Despite these efforts, the slight decline in the undocumented population in the wake of the Great Recession was erased in 2010. By 2016, the number had risen to 11.3 million, representing 3.5% of the population and at an absolute level close to its historical high. By 2018, a resurgence appeared to be underway.
These statistics speak for themselves. The U.S. now has an unauthorized population that can only be substantially reduced through a more significant amnesty program and much stronger enforcement measures that are politically and legally unlikely. Since our book appeared in 1985, many more U.S.-born children of this far larger unauthorized population became citizens automatically at birth, making the debate over the legitimacy and desirability of the status quo even more acute today.
The book also identified a second development: the persistent growth of a welfare state from which, due to automatic birthright citizenship, members of this group are eligible to receive benefits throughout their lives. This growth has magnified both the consent-based and policy-based objections to automatic birthright citizenship for this group. Since 1985, the overall financial costs of entitlements like food stamps, health care, student loans, the Earned Income Tax Credit, Social Security pensions, and disability insurance (not to mention discretionary programs) have increased sharply, even as eligibility for some other forms of aid has been reduced. At the same time, undocumented immigrants harm the labor-market opportunities and wages of some low-skill workers, although labor economists dispute the magnitudes of those negative effects.
The fact that these programs generate social benefits, not just costs, does not alter the fact that the current birthright-citizenship regime confers taxpayer-supported aid on millions of people whose presence and membership come in violation of the polity's laws.
Many of their undocumented parents will also receive benefits, some of them authorized by the laws of high-tech, undocumented-immigrant-friendly states like New York and California. The National Academies of Sciences, Engineering, and Medicine issued a 2016 report on the fiscal effects of all immigration, legal and illegal, concluding that immigrants contribute less in annual taxes than native-born Americans, though they make other contributions to the nation's GDP. Finally, welfare entitlements for people whom many voters reject almost certainly reduces voters' willingness to support even current levels of legal immigration, much less the higher levels favored by us and a minority of other Americans. Here, we suspect, the public's resentment of this unwanted group's entitlement to welfare benefits greatly exceeds its actual fiscal impact and contributes to rising anti-immigration sentiment.
A third development since our book appeared has been the rise in nationalist and anti-immigrant views exhibited by voters in most other liberal democracies. (Canada is so far an exception.) This populist resistance to even legal immigration makes birthright citizenship for the children of undocumented immigrants more politically anomalous and unpopular than ever before.
The vast majority of Americans (90% in 2015, up from 80% in 2006) indicate that they are "aware" that the U.S.-born children of illegal immigrants are automatically citizens. The most recent survey on this question, conducted by NBC News and the Wall Street Journal and published in October 2017, found that 53% of respondents thought that "we should continue to grant citizenship to all children born in the U.S."; 42% opined that this should be changed so that "children of illegal immigrants are not automatically granted citizenship." An earlier Pew Research Center survey in February 2011 found that 57% agreed that the Constitution should remain as it is, allowing any child born in the U.S. full citizenship; 39% favored changing the Constitution to bar birthright citizenship for the children of illegal aliens. On this question, Republicans were sharply divided, with 49% wanting to leave the Constitution as it is, while 47% favored a constitutional amendment to bar birthright citizenship for this group.
Remember, however, that the public tends to strongly oppose amending the Constitution, regardless of the subject matter. Neither of these surveys asked respondents whether, assuming that the Constitution allows Congress to legislate on the matter, as we have argued it does, Congress should adopt a different policy by statute. And of course the surveys did not ask whether Congress should adopt an intermediate position (discussed below) modifying the birthright-citizenship rule by statute to allow some, but not all, undocumented children born in the U.S. to gain citizenship under certain specified conditions. With these important caveats, the new survey evidence shows a fairly sharp division on birthright citizenship for this population, with a slight majority favoring continuation of the status quo.
We presume that few voters are aware of how distinctive the American approach to this question has been. Of course, the United States is an outlier, and in some cases unique, among nations in many ways relevant to citizenship policy: our comparatively open legal-immigration policies before the 1920s and since 1965; our remarkable tradition of ethno-racial and religious diversity, even though it has included invidious inequalities; our large and growing unauthorized-immigrant population, which partly reflects our very long land border with a vastly poorer region; our comparatively easy, non-culturally based naturalization requirements; our commitment to legal equality; and, finally, our constitutionally based commitment to birthright citizenship.
Given these differences, it is unsurprising that the citizenship rules of other liberal democracies differ from those of the U.S. in some important respects, including birthright citizenship. So-called jus sanguinis citizenship, based on the citizenship of one's parents rather than on where one is born (jus soli), is far more common than birthright citizenship, which emerged from the English common-law tradition. Most countries in the world, particularly "developed" ones, do not follow the jus soli regime of birthright citizenship. No European country accords citizenship based simply on birth in its territory. In a 2010 survey, the Center for Immigration Studies, a strong advocate of immigration restriction and opponent of birthright citizenship for undocumented children, could not confirm the citizenship policies of 19 countries in Africa and Asia, but did not find any clear examples among these countries of policies that accord citizenship based merely on birth in the territory. A number of jus sanguinis countries, however, do allow for limited jus soli citizenship for children who are born stateless, or are foundlings. Some jus sanguinis countries permit a sort of limited jus soli citizenship where the parents meet certain legal-residence requirements. Likewise, the U.S. and many other jus soli countries also have limited provisions for jus sanguinis citizenship.
But here too, things have been changing. A number of countries with traditionally unqualified jus soli rules have (often citing concerns about illegal immigration) recently abolished or adopted limits on jus soli, conditioning the child's birthright citizenship on the parents' birth in the country or legal-residence status. This is the rule in both Australia and New Zealand. The British Nationality Act of 1981, which came into force in 1983, repealed prior law that conferred virtually unrestricted jus soli citizenship (with narrow exceptions for diplomats' children); the law now conditions birthright citizenship for children born there after 1983 on rigorous parental-residential requirements.
Such a child is "a British citizen if at the time of the birth his father or mother is" either "a British citizen" or "settled in the United Kingdom," which means "being ordinarily resident in the United Kingdom...without being subject under the immigration laws to any restriction on the period for which he may remain." Ireland — which after the British act was the sole remaining European country with unrestricted jus soli citizenship — adopted its own parental-residential requirements in a 2004 referendum in which concerns about "birth tourism" became an issue. The new Irish law states that, "at least for one parent, a three-year residence period is required before citizenship can be attributed jure soli to a child born on Irish soil." Some other traditionally jus soli countries, like India in 1987, have eliminated their jus soli provisions entirely, without even an exception for children whose parents have legal residence.
In general, a global trend has developed in which traditionally jus soli countries outside the U.S. either restrict birthright citizenship to the legal-residency status of at least one parent or repeal their jus soli provisions altogether. (Where parental legal residency suffices, it is often unclear whether one or both parents must be legal residents; one is probably enough.) The notable exception to this is Canada, which, like the U.S., does not require that a parent of the Canada-born child have legal status. This feature of Canada's rule, like ours, is controversial and seems likely to become more so as illegal migration to Canada increases. In some other countries — Brazil, Mexico, and Peru, for example — the legal status of the parents likewise appears to be irrelevant.
In another trend, some traditionally jus sanguinis countries have added jus soli elements to their citizenship laws, but usually conditioned on the parents' own birth or residency status in the country. In this sense, a kind of convergence has occurred between traditionally jus soli and traditionally jus sanguinis countries: The former impose restrictions on birthright citizenship, while the latter condition birthright citizenship on parental citizenship or legal residence (or "settled" residence, which appears to be the same thing legally), or on parental birth in the country ("double jus soli").
Exemplifying this trend, Germany's citizenship reform in 2000 has been described as the "most remarkable and significant citizenship reform in Europe during the past decades." Traditionally among the most stalwart jus sanguinis countries, Germany added elements of jus soli but with strict conditions based on parental citizenship or legal-residency status. It now allows birthright citizenship for children of non-citizens born in Germany, but only if certain parental-residency requirements are met. According to a 2012 Library of Congress report, "A child born in Germany to parents who are aliens acquires German citizenship only if one parent has had his or her habitual abode in Germany for at least eight years and either has a permanent German residence permit that entitles him or her to reside in Germany or another European Union member country or has the citizenship of another EU member country."
AN INTERMEDIATE POSITION?
The existing rule of unrestricted birthright citizenship has a number of advantages, as noted above. But it also opens the door to some practices (perhaps most notably, the various forms of "birth tourism") that provocatively violate the consent principle at the heart of democratic government, as well as create perverse incentives for illegal entrants and overstays.
Altering the rule of birthright citizenship can be undertaken by congressional statute, as we have argued. But what kind of change would be reasonable? One of us (Schuck) has proposed a reform that promises to achieve a better combination of advantages and disadvantages. In place of automatic birthright citizenship, we could substitute retroactive-to-birth citizenship for the U.S.-born children of illegal-immigrant parents who demonstrate a substantial attachment to, and familiarity with, this country by satisfying two conditions: a certain period of residence here after the child's birth, and a certain level of education of the child in our schools. (In almost every case, of course, the two conditions will overlap, and the schooling will assure at least a minimal level of proficiency in English and knowledge of American history and society.)
Reasonable people can differ about what the qualifying periods of residence and education should be, whether those periods must be continuous, and other conditions. (Australia's 2007 citizenship law, for example, abolished birthright citizenship while creating an exception for a person "ordinarily resident in Australia throughout the period of 10 years" beginning at birth.) In Schuck's view, completion of eighth grade should suffice for this limited purpose. Certifying compliance should be administratively simple. And during the interim period, the individual should have the legal status of presumptive citizen, with all of the attributes of citizenship for individuals of their age. The parents' status would remain the same as under current law unless they can gain legal status through an expanded legalization program or otherwise.
One can easily imagine objections to this reform, especially by those who categorically reject birthright citizenship for this group on grounds discussed above. But two answers to such objections are compelling in our view. First, whether Americans like it or not, these children are now legal citizens at birth. The question, then, is whether an over-inclusive status quo should be retained. Second, the normative objections to their citizenship — that their connection to our country is imposed without our consent and is often adventitious, transient, and insubstantial — would be met by the proposed reform, whose enactment would provide the requisite consent to, and conditions for, their citizenship.
To be sure, the current climate presents the danger that political deliberations over any changes to current birthright-citizenship practices might lead to policies of heightened deportations of otherwise-law-abiding long-term residents, and of reduced legal immigration. We oppose both of these policies. But because controversies over immigration and birthright citizenship have only grown in recent decades and are likely to intensify further, we believe that the quest to find reasonable, humane compromises on these vital topics is more urgent than ever.