UNITED STATES: Birthright Citizenship and the Fourteenth Amendment

John Medeiros, Hamline University School of Law '14, is an accomplished writer living in Minnesota. He writes about the Fourteenth Amendment's birthright guarantee...



I remember the day as if it were yesterday. After several weeks of studying the US Constitution in eighth grade Civics class, on the last day before our winter break, my closest friend, Juan Castillo, and I were emptying our lockers. "I have something I want to tell you," he said, almost secretly, "but I cannot tell you now. I'll call you later tonight." I could sense a sadness in his eyes as they refused to meet mine, and there was a slight crack in his voice.

That night Juan called, and his voice just above a whisper. "What's going on?" I asked. "What's the big news?"

"I have to tell you something that I don't want anyone else at school to know. I'm telling you this because you're my best friend - I'm not returning to school after break." He paused and added, "My family is moving back to the Dominican Republic right after Christmas."

Juan was born in the United States, but his parents were not. He and his family returned to the Dominican Republic when he was a baby, and they moved back to the States when he was ten years old. "Why are you moving back?" I asked. "I mean, don't you like it here? Can't you even wait until summer?"

"My father is getting transferred back there," he replied. Then he lowered his voice again and added, "Don't worry about me; I'll be alright."

That was the last I would ever hear from Juan.

When I returned to school after break, our Civics class continued to study the US Constitution. Ironically, we picked up with the Fourteenth Amendment:

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.

As I looked at the empty chair where Juan used to sit, everything started to make sense. Having been born here, Juan was a citizen of the United States, but his parents were not. It was not long before I realized that saying his father was "transferred" was Juan's way of telling me that his family was being deported.

That was my first exposure to immigration policy's personal impact, and it helps explain why I have spent my professional life studying and working in the field of immigration law. Now, thirty years after I heard them for the very time first time, the words of the Fourteenth Amendment have become part of the public discourse as some members of Congress are attempting to limit the rights of immigrants by advocating the denial of birthright citizenship to those born to undocumented parents in the United States.

Under the Citizenship Clause of the Fourteenth Amendment, all persons born or naturalized in the United States who are also subject to the jurisdiction of the United States are citizens. Much of the current debate turns on the meaning and intention of this clause. The argument put forth is that undocumented immigrants are not under the jurisdiction of the United States, and so the children of undocumented immigrants also do not fall within that jurisdiction. Therefore, such children, although born in the United States, should not be American citizens.

The argument is flawed when scrutinized in context. Upon passage, the Fourteenth Amendment effectively reversed the decision in the case of Dred Scott, a slave who sued in federal court for his freedom. The Supreme Court had held that neither slaves nor free descendants of slaves were citizens, and so the Fourteenth Amendment was enacted to specifically enable African-Americans born in the United States to obtain citizenship at birth.

Additionally, the author of the Citizenship Clause confirmed in his original debates that the clause subject to the jurisdiction of the United States was specifically designed to exclude only foreigners who belonged to families of ambassadors or foreign ministers, and Native Americans who maintained their tribal ties. This was confirmed in a number of cases, including United States v. Wong Kim Ark (1898), which involved a man born in the United States to Chinese parents who were statutorily ineligible for naturalization because of their race. The Court held that Wong Kim Ark, who was born in San Francisco, was, in fact, entitled to birthright citizenship, and stated in dictum that the term subject to the jurisdiction of the United States excluded two classes of people, other than Native Americans: children born of alien enemies in hostile occupation, and children of diplomats of a foreign state. The phrase was never intended to exclude anyone else. (Incidentally, Congress subsequently passed the Indian Citizenship Act of 1924, which granted full U.S. citizenship to Native Americans.)

Opponents of birthright citizenship also argue that because undocumented parents still owe their allegiance to a foreign country, their children who are born in the United States do not owe complete allegiance to the United States and, consequently, should be denied citizenship. But it is important to remember that the framers of the Fourteenth Amendment make no reference whatsoever to allegiance. This is because allegiance is loyalty to the place of one's birth, and not to the citizenship of one's parents.

So while there are some who believe the Fourteenth Amendment should exclude those born in the United States to undocumented parents, history suggests otherwise. However, the history behind the Citizenship Clause of the Fourteenth Amendment doesn't seem to be making its way into the public dialogue, and instead there is a movement underway to reshape the Constitution from a document historically interpreted to grant rights to those living in the United States, to one that limits and even denies those rights. The call is to redefine the Fourteenth Amendment to exclude citizenship for children born in the United States to parents who are undocumented, or in temporary lawful status.

A popular explanation for this movement is that illegal immigrants specifically come to the United States to give birth, to gain citizenship for their children and thus obtain legal status themselves. Misinformed proponents of this theory callously refer to such children as "anchor babies" for illegal immigrants. However, the reality is that most undocumented people come to the United States for economic reasons, and "anchor babies" are simply not part of the immigration trend. Under current law, US citizens must wait until they are at least 21 years of age to petition for adjustment of legal status for their parents. Simply because a child is born in the United States does not mean that the parents are allowed to stay permanently. To the contrary, the US Citizenship and Immigration Services (formerly INS) is not reputed to be an agency designed to keep families together. It was not so with my friend Juan, and it is not so today.

Equally misinformed is the argument that deporting "anchor babies" would decrease overall illegal immigration. In The Demographic Impacts of Repealing Birthright Citizenship, September 2010, the Migration Policy Institute estimates that passage of the House-introduced 2009 Birthright Citizenship Act - which would deny US citizenship to children born to unauthorized immigrants - would actually increase the unauthorized population from its current 10.8 million to 16 million by 2050. Worse still would be effects of implementing a stricter option being explored, under which citizenship would be denied to US-born children with one unauthorized immigrant parent, even if the other parent were a US citizen. In such a scenario it is estimated the unauthorized population would rise to 24 million by 2050. Amending the Fourteenth Amendment of the Constitution to prevent birthright citizenship would only escalate the very problem it is intended to resolve.

All three branches of our federal government have confirmed birthright citizenship, and to eliminate this right would be unconstitutional and impractical. The law has not changed since United States v. Wong Kim Ark, and neither has the Fourteenth Amendment. What have changed, however, are the escalating and complex problems of illegal immigration, and public opinion toward undocumented immigrants. While it is true that our country has an immigration problem, that problem is not with undocumented immigrants, but rather with a broken system in need of significant reform. While we may disagree over our country's immigration policies, we must agree that the way we respond to those policies cannot include tampering with the Fourteenth Amendment. Doing so would show a blatant disregard for the provisions of the Constitution - provisions designed to expand civil rights, not limit them - and would violate over a hundred years of legal progress by undermining the civil victories of our past.

John Medeiros can be contacted via his personal website at http://www.jmedeiros.net/

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