Birthright Citizenship and Children Born in the United States to Alien Parents: An Overview of the Legal Debate
Released: 2015-10-28T00:00:00

Introduction

In recent years, some scholars, legislators, and others have proposed to reexamine and potentially reinterpret the U.S. Constitution's Citizenship Clause to change and limit the current rule of conferring U.S. citizenship at birth to any person born in the United States, or "birthright citizenship." The Citizenship Clause is the first clause of the Fourteenth Amendment, and 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…." The policy debates on the topic of birthright citizenship are far-ranging, driven by concerns regarding unauthorized immigration, global antiterrorism efforts, reports of "birth tourism," and congressional redistricting, among other issues. The legal debates, however, center squarely on the six words in the middle of the Citizenship Clause: "and subject to the jurisdiction thereof."

The Citizenship Clause has conventionally been taken to require U.S. citizenship generally to be accorded automatically to any child born within the United States, regardless of the citizenship or status of the child's parents. The "subject to the jurisdiction thereof" language has been interpreted to impose limited exceptions, such as for children of diplomats and foreign ministers (who are accorded immunity from U.S. law). This interpretation flows from the English common law doctrine of jus soli ("right of soil"), under which a person's nationality at birth is determined by the territory within which the person was born. The alternative doctrine of jus sanguinis ("right of blood"), which determines a person's nationality by descent, is now the more common general system outside of North and South America. However, each system's adherents have incorporated some elements of the other, with few purely adopting one or the other.

The jus soli interpretation of the Citizenship Clause is recognized in a number of judicial decisions; however, arguably, no case has ever directly held whether the Citizenship Clause extends to children of aliens who are present in the United States unlawfully. The factual scenarios of the key cases interpreting the Citizenship Clause, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898), involved Native Americans and children of domiciled resident aliens, respectively. Elk found that members of Indian tribes were not granted U.S. citizenship by the Fourteenth Amendment (a situation which was eventually remedied by statute ), while Wong Kim Ark found that the child of Chinese citizens residing in San Francisco had become a U.S. citizen at the time of his birth and therefore was not subject to the Chinese Exclusion Acts of the time.

Some scholarship in the past few decades has argued that the phrase "and subject to the jurisdiction thereof" in the Citizenship Clause was in fact intended by the framers of the Fourteenth Amendment to include only those children born to lawfully present or lawfully resident aliens, and not children of unauthorized or nonimmigrant aliens. These arguments have been embraced by some legislators, who have introduced bills since the early 1990s seeking to change the jus soli rule in various ways. Many of these bills target Section 301 of the Immigration and Nationality Act (INA), which tracks the language of the Citizenship Clause and states: "The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof…."

Any statute reinterpreting the Citizenship Clause to exclude children of certain aliens would face judicial review by federal courts. Because of the core constitutional principles involved, it seems probable that any case on such a statute could reach the Supreme Court. The Court could find such a statute constitutional if it interpreted the "subject to the jurisdiction" language of the Citizenship Clause to exclude the children of certain aliens from the scope of the Clause's protection. To uphold a statute limiting birthright citizenship, it would also appear that the Court would have to find either (1) that the discussion in Wong Kim Ark apparently supporting the conventional interpretation of birthright citizenship was mere dicta, not binding precedent, and the case's holding was limited to the facts of that case; or (2) that Wong Kim Ark incorrectly interpreted the Citizenship Clause, at least in some respects, and should be overruled. If a statute could not change the meaning of the Citizenship Clause, then a constitutional amendment, as some have proposed, would have the power to do so. Proponents and opponents of the current birthright citizenship rule have marshalled a variety of arguments and historical records on all of these points.

This report first sets the stage for analyzing the modern debates by providing a brief historical review of U.S. citizenship from the time of the founding through the Civil Rights Act of 1866 and the Citizenship Clause of the Fourteenth Amendment of 1868. It then describes the primary Supreme Court decisions analyzing the scope of the Citizenship Clause, as well as subsequent decisions generally reflecting the conventional understanding of birthright citizenship. This report then presents an overview of the main legal arguments for and against reassessing the scope of the Citizenship Clause, building on the history and judicial precedent described in previous sections. In light of the various bills that have been proposed to modify birthright citizenship, this report closes by discussing the primary legal considerations that would determine whether any congressional action to restrict birthright citizenship of U.S.-born children of alien parents without constitutional amendment could be upheld.

Historical Development of U.S. Citizenship by Birth in the United States

U.S. Citizenship Before the Civil War

The original framers of the U.S. Constitution referenced, but did not define, national citizenship. The Constitution required that a person have been a citizen of the United States for seven years to be a Representative and for nine years to be a Senator, and that a person be a natural-born citizen or a citizen at the time of the adoption of the Constitution in order to be eligible to be President. It also gave Congress the power to establish a uniform rule of naturalization, but naturalization refers to the manner in which a non-citizen acquires citizenship, rather than citizenship by birth. Nor did the Naturalization Act of 1790 or subsequent acts until the Civil Rights Act of 1866 define citizenship by birth within the United States.

In the absence of any statement in the Constitution or federal statutes that U.S. citizenship was acquired by right of birth in the United States, citizenship at birth generally was construed in the context of the English common law. As noted by the Supreme Court, "[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."

For example, in an 1824 inheritance case, the Supreme Court proceeded on the assumption that three girls born in the United States were citizens, although their father was an Irish citizen who never naturalized. In 1830, the Supreme Court held that the law of England as to citizenship at birth was the law of the English colonies, and that a person born in New York after the Declaration of Independence on July 4, 1776 was a citizen of the United States, unless he was born in British-occupied territory, left for England as a minor, and did not elect to affirm his U.S. citizenship within a reasonable time after attaining his majority. In another early case more directly on point, Lynch v. Clarke , a New York court held in 1844 that Julia Lynch, born to Irish aliens while they were temporarily sojourning in New York, was a U.S. citizen. In determining the appropriate national law to apply, the Lynch court looked to the traditional English common law doctrine of jus soli , holding that by the "law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen."

These birthright citizenship principles were not extended to slaves, or generally to Native Americans. Moreover, in the infamous 1857 case of Dred S cott v. Sandford , Supreme Court Chief Justice Roger B. Taney wrote that the Constitution "point[ed] directly and specifically to the negro race as a separate class of persons, and show[ed] clearly that they were not regarded as a portion of the people or citizens of the Government then formed," and held that the Constitution precluded both Congress and states from granting citizenship to descendants of slaves or people of African descent generally. As such, the Dred Scott decision applied a rigid racial limitation on the jus soli doctrine.

The Civil Rights Act of 1866

Following the Civil War, Congress passed the Civil Rights Act of 1866. The first section of that act repealed Dred Scott . It provided "[t]hat 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…."

Prior to passage of the act, Congress debated its effects on citizenship, particularly the language "not subject to any foreign power, excluding Indians not taxed." Senator Lyman Trumbull, a lead sponsor, introduced language similar to the above but omitting the exclusion for "Indians not taxed" on January 30, 1866. Senator Trumbull explained that "[o]ur dealings with the Indians are with them as foreigners, as separate nations," and in response to an inquiry from Senator Edgar Cowen whether the provision would "have the effect of naturalizing the children of Chinese and Gypsies born in this country," responded: "Undoubtedly." Notably, Senator Trumbull and Senator Cowen agreed that "the children of German parents" were citizens under what was then the current law, and disagreed over the effects of race, rather than alien status of the parents. However, in other statements on the citizenship provision, Senator Trumbull discussed the requirements of citizenship to be enshrined by the provision in terms of "owing allegiance" to the United States, or similar conditions seemingly additional to geographic presence.

The Fourteenth Amendment to the U.S. Constitution

The Civil Rights Act of 1866 was passed over President Andrew Johnson's veto on April 9, 1866, and the Fourteenth Amendment was introduced soon thereafter, in May 1866. As passed in the House and introduced in the Senate, the proposed Fourteenth Amendment lacked a citizenship provision. Senator Benjamin Wade proposed an amendment that would remove the word "citizen" from what would become the "privileges and immunities" clause and replace it with "person," saying that "the word 'citizen' … is a term about which there has been a good deal of uncertainty in our Government." In the discussion that ensued, Senator Wade explained his understanding that the only instance in which "a person may be born here and not be a citizen" was "in the case of children of foreign ministers…."

The Citizenship Clause was initially introduced by Senator Jacob Howard to read: "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." Senator Howard stated:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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.

Once again, Senator Cowen objected and inquired, "Is the child of the Chinese immigrant in California a citizen? … [I]s it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration…?" Senator John Conness, of California, responded: "The proposition before us … relates simply to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens…. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States…."

Further debate proceeded largely on the topic of Native American status. In that context, Senator Trumbull stated: "What do we mean by 'subject to the jurisdiction of the United States?' Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction."

Despite the Citizenship Clause's expansion of birthright citizenship to "all persons born … in the United States, and subject to the jurisdiction thereof" regardless of race, naturalization remained racially restricted even after the Fourteenth Amendment was ratified in 1868; the Naturalization Act of 1870 extended the naturalization process to "aliens of African nativity and to persons of African descent," but other aliens who were not "free white persons" remained excluded.

Litigation Involving the Citizenship Clause

Slaughter-House Cases and Elk v. Wilkins

The first Supreme Court decision to interpret the new Fourteenth Amendment, known as " T he Slaughter-H ouse Cases " decision, was not focused on the scope and interpretation of the Citizenship Clause. Among other conclusions, this landmark 1873 decision rendered the Privileges and Immunities Clause a "practical nullity" in holding that it referred only to federal rights as designated in the Constitution or as necessarily implied as belonging to citizens of the United States, and did not forbid the states from withholding the privileges and immunities pertaining to state citizenship. In the course of its decision, the majority stated that "[t]he 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." However, this statement is generally regarded as dicta, that is, a remark not controlling as precedent on later courts because it was made in reference to an issue not actually before the court.

Elk v. Wilkins , decided in 1884, did target the meaning of the Citizenship Clause, although not with respect to children of aliens. John Elk was born a member of a recognized Indian tribe, but had separated from his tribe and "taken up his residence among the white citizens" of Omaha, Nebraska, although the petition in the case did not allege that he had ever been naturalized or taxed. A local registrar refused to register Elk as a qualified voter, on the grounds that Elk "was an Indian, and therefore not a citizen of the United States." The Supreme Court upheld the dismissal of Elk's case against the registrar, holding that the Citizenship Clause of the Fourteenth Amendment did not make members of Indian tribes U.S. citizens at birth, largely because of the tribes' special status as independent political communities. It declared that a member of an Indian tribe was born owing allegiance to that tribe rather than to the United States, and tribes were not fully subject to the jurisdiction of the United States. The Court stated:

The evident meaning of these last words ["subject to the jurisdiction thereof"] is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.

… Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.

United States v. Wong Kim Ark

To this day, the primary Supreme Court case on the meaning of the Citizenship Clause as to birthright citizenship remains United States v. Wong Kim Ark , decided in 1898. Wong Kim Ark was born in 1873 in San Francisco and resided and worked in California. His parents, who were Chinese citizens and ineligible to naturalize under then-existing law, returned to their home country in 1890. When Wong Kim Ark returned to the United States from a several month visit to China in 1895, he was detained on his steamship when a customs agent (responsible for immigration enforcement at the time) declared that he was not a U.S. citizen and that he therefore was barred from entry by the Chinese Exclusion Acts. The government argued before the Supreme Court that "subject to the jurisdiction" referred to those born within the political, not territorial, jurisdiction of the United States. It pointed to the Slaughter-House Cases , Elk v. Wilkins , international adoption of jus sanguinis rules, some historical documents, and policy grounds to argue for limits on citizenship. Wong Kim Ark's attorneys raised a number of arguments in opposition, including common law jurisprudence, the purpose of the Fourteenth Amendment and its context following the Civil War, and principles of national sovereignty.

More than a year after the case was argued, Justice Horace Gray found for Wong Kim Ark in an opinion that:

traced the development of the English common law with regard to jus soli , and countered the argument that it had been superseded by jus sanguinis ; read the original Constitution's references to citizenship in light of the common law while reviewing pre-Fourteenth Amendment judicial decisions on citizenship; delved into the legislative history of the Civil Rights Act of 1866 and the Fourteenth Amendment; reviewed interpretations of the Citizenship Clause by lower federal and state courts and the executive branch; analyzed and distinguished the Slaughter-House Cases and Elk v. Wilkins ; and stated:

The foregoing considerations and authorities irresistibly lead us to these conclusions: The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.

The Court declared 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," reading allegiance fairly broadly and indeed "independently of any domiciliation … [or] renouncing any former allegiance…." The enumerated exceptions to birthright citizenship, for children of foreign diplomats, foreign public ships, or hostile occupying enemies, and members of Indian tribes, were also reiterated on several occasions in the opinion. Moreover, the birthright citizenship guaranteed by the Citizenship Clause could not be abridged by the Chinese Exclusion Acts or any other legislation: "The Fourteenth Amendment, while it leaves the power, where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship."

The Court's ultimate holding, on the specific facts of the case, was phrased more narrowly than the foregoing general pronouncements on jus soli generally:

[A] child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.

Chief Justice Fuller and Justice Harlan dissented, objecting to the application of the English common law rule and urging a narrower view of allegiance and jurisdiction. They emphasized a treaty and statute disqualifying Chinese parents and their children from naturalization.

Twentieth and 21st Century Case Law on Birthright Citizenship

After Elk v. Wilkins and United States v. Wong Kim Ark , the meaning of the Citizenship Clause of the Fourteenth Amendment as to U.S. born children of alien parents was generally taken to be fairly settled. U.S. citizenship was and is automatically granted to any person born within the geographic United States, unless the person fell within a specific exception and therefore outside the "subject to the jurisdiction thereof" requirement of the Fourteenth Amendment. The main exceptions are children born as members of recognized Indian tribes (now citizens by statute), and children born to foreign diplomatic officers. The alien status, or even unlawful presence, of a child's parent or parents has not been held to deny U.S. citizenship to a child born in this country. Notably, in World War II, former California attorney general Ulysses S. Webb brought an unsuccessful test case seeking to overturn Wong Kim Ark and remove Japanese Americans from voter rolls on the theory that they were not citizens. The U.S. Court of Appeals for the Ninth Circuit summarily affirmed the district court's dismissal of that case "[o]n the authority of the [F]ourteenth Amendment to the Constitution, § 1, making all persons born in the United States citizens thereof, as interpreted by the Supreme Court of the United States in United States v. Wong Kim Ark … and a long line of decisions"; the Supreme Court did not grant review.

Plyler v. Doe and "Jurisdiction"

The Supreme Court has not directly addressed whether the Citizenship Clause necessarily requires U.S. citizenship to be granted to persons born in the United States to unlawfully present aliens. However, it has made pronouncements arguably relevant to that question while addressing other issues. Perhaps most notably, in 1983, the Supreme Court decided Plyler v. Doe , holding that a Texas statute which withheld state funds for the education of children who were not "legally admitted" into the United States, and which authorized local school districts to deny enrollment to such children, violated the Equal Protection Clause of the Fourteenth Amendment. Texas had argued "that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction " and that "persons who have entered the United States illegally are not 'within the jurisdiction' of a State even if they are present within a State's boundaries and subject to its laws. " The Court disagreed, holding that "[t]o permit a State to employ the phrase 'within its jurisdiction' in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose [of] the Equal Protection Clause …."

While the threshold inquiry in Plyler centered on the "person within [a state's] jurisdiction" language of the Equal Protection Clause, the Court also analogized that phrase to the use of "jurisdiction" in the Citizenship Clause, in a footnote, stating:

Although we have not previously focused on the intended meaning of this phrase ["within its jurisdiction"], we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[all] persons born or naturalized in the United States, and subject to the jurisdiction thereof , are citizens of the United States…." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark , 169 U.S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section…."

Justice Gray concluded that "[every] 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." Id. , at 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, 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.

In the same Equal Protection context, the Court in Plyler also recognized "[p]ersuasive arguments" for withholding benefits "from those whose very presence within the United States is the product of their own unlawful conduct," but was more skeptical of "classifications imposing disabilities on the minor children of such illegal entrants," who could not control their parents' conduct or their own status.

Hamdi v. Rumsfeld and Presumption of Citizenship

In 2004, the Supreme Court was invited to reassess the automatic granting of U.S. citizenship to children born to aliens in the United States by several amici curiae briefs in Hamdi v. Rumsfeld . That case presented legal questions about the rights owed to a U.S. citizen, born in Louisiana to Saudi parents, who had been detained in Afghanistan as an enemy combatant. The briefs by the Eagle Forum Education & Legal Defense Fund and the Claremont Institute Center for Constitutional Jurisprudence argued that Wong Kim Ark had been read too broadly. The amici argued that the Citizenship Clause of the Fourteenth Amendment should instead be read to advance a legal concept of citizenship based on consent, of both the individual and the sovereign, embodied in the Clause's "subject to the jurisdiction thereof" language. The Court declined the invitation and did not discuss the issue of granting American citizenship to children of aliens, although a dissent authored by Justice Antonin Scalia did refer to Hamdi as "a presumed American citizen."

Cases on Birthright Citizenship in U.S. Territories

Several recent cases have touched on the meaning of "subject to the jurisdiction thereof" in assessing the scope of another phrase in the Citizenship Clause, "born … in the United States." For example, in Tuaua v. United States , decided in June 2015, the U.S. Court of Appeals for the D.C. Circuit held that "born … in the United States" did not extend to those born in the U.S. territory of American Samoa. In doing so, the court analyzed the geographic scope of the jus soli doctrine and applied both Elk v. Wilkins and United States v. Wong Kim Ark . The court viewed the English common law rule as defining the domain of the king broadly, with those born in, for example, the American colonies treated as subjects of the king; however, the court was "unconvinced … that Wong Kim Ark reflects the constitutional codification of the common law rule as applied to outlying territories," since Wong Kim Ark was born in San Francisco and issues regarding geographical scope of the Citizenship Clause were not addressed. Rather, the American Samoan plaintiffs were more analogous to Indian tribe members under Elk v. Wilkins in terms of being "significantly self-governing." American Samoa's situation was, perhaps more importantly, determined to a significant extent by The Insular Cases , a series of decisions beginning in 1901 in which the Supreme Court addressed whether the Constitution, by its own force, applies in any territory that is not a state.

Notably, the Circuit Court in Tuaua briefly addressed and dismissed an argument that Congress could change the interpretation of the Citizenship Clause by statute, without constitutional amendment, stating:

The United States Government also argues, "even if Plaintiffs were correct that … the Fourteenth Amendment should generally confer birthright citizenship [on persons born in American Samoa,] ... Congress's direct modification of that status by statute trumps that interpretation" … (relying on Rogers v. Bellei, 401 U.S. 815, 828 (1971)). This argument is novel, if curious. Yet it erroneously conflates Congress's broad powers over naturalization with authority to statutorily abrogate the scope of birthright citizenship available under the Constitution itself. Congress's authority for the latter is wanting. See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803) ("[T]he constitution is superior to any ordinary act of the legislature.").

The Modern Legal Debate over Birthright Citizenship

The debate over American birthright citizenship for children of aliens has, of course, significant policy and political philosophy components—and real world consequences—which are generally outside the scope of this report. In focusing on the legal and constitutional aspects of the debate, the remainder of this report begins by briefly introducing the main competing perspectives and their respective approaches to analyzing the history, constitutional text, and case law developments summarized in previous sections. It then notes some legislative proposals to limit birthright citizenship and discusses how, if enacted, they would likely be assessed by the Supreme Court. Those who seek a reinterpretation of the Citizenship Clause would seem to face substantially greater legal and constitutional hurdles than those who would maintain the birthright citizenship status quo. Nevertheless, it is not necessarily clear that the question has been truly settled.

Two Competing Interpretations of the Citizenship Clause

There are, broadly speaking, two sides to the current legal debate over whether the Citizenship Clause of the Fourteenth Amendment requires the automatic granting of U.S. citizenship to all persons born in the United States, including those born to unlawfully or temporarily present aliens. It would be futile to attempt a comprehensive review of the many statements cited and arguments made on both sides, but even a summary of selected points illustrates the deep philosophical differences underlying the legal disagreements. The following sections highlight a few of the principal themes, although a full examination of points and counter-points on the issues below—and others—is outside the scope of this report.

"Ascriptive" versus "Consensual" Conceptions of Citizenship

What is generally considered the majority view, embodied in applicable law and policy, is that the Fourteenth Amendment does require U.S. citizenship to be automatically conferred on "[a]ll persons born … in the United States"; and that the phrase "subject to the jurisdiction thereof" excludes from that general rule only certain common-law-based exceptions to the jus soli doctrine, for those born in the United States to foreign diplomats, hostile occupying forces, or members of recognized Indian tribes. Legally, the "jurisdiction" referred to by the Citizenship Clause is territorial jurisdiction, which is the power of a sovereign to enforce its laws within its territorial limits. This conventional interpretation has been called the "ascriptive" view (at least by some opponents) because it determines citizenship by the objective geographical circumstances of a person's birth.

On the other side, some argue that the Fourteenth Amendment does not require U.S. citizenship to be automatically granted to persons born in the United States to aliens, especially those aliens who are present unlawfully or who are domiciled elsewhere. The core of this argument is that the phrase "subject to the jurisdiction thereof" was intended to codify a limitation on the birthright citizenship principle that, in the words of two of its early proponents, "demanded a more or less complete, direct power by government over the individual, and a reciprocal relationship between them at the time of birth, in which the government consented to the individual's presence and status and offered him complete protection." The "jurisdiction" referred to by the Citizenship Clause, in this view, is a more "complete" jurisdiction that entails undivided allegiance. This opposing view has been called the "consensual" approach, as its proponents would "make political membership a product of mutual consent by the polity and the individual." In short, as one of the aforementioned Hamdi v. Rumsfeld amicus brief argued unsuccessfully before the Supreme Court in 2004, "[i]t is not the physical location of birth that defines citizenship, but the express or implied consent to jurisdiction of the sovereign." It is generally acknowledged that opposition to the conventional interpretation is the minority viewpoint.

Divergent Interpretations of Common Law, Legislative History, Constitutional Text, and Case Law

Both sides of the birthright citizenship debate look back to colonial and pre-colonial times for evidence for their respective positions. Some legal writers favoring a narrower reinterpretation of birthright citizenship have emphasized statements in English common law cases referring to "aliens in amity"; they argue that even the common law doctrine of jus soli came to rely upon mutual consent between the citizen and the sovereign, and that the Fourteenth Amendment did not intend to abandon what they interpret as common law notions of consent. Other consensualist legal writers say that to the extent the English common law made persons English subjects purely on the basis of the place of their birth, the American Revolution rejected this element of the English common law and enshrined more consensualist ideals of a social contract. Consensualist legal writers have also emphasized the right of expatriation, or the voluntary ending of citizenship, as a corollary that they argue supports an allegiance based approach to gaining citizenship at birth. Proponents of the conventional interpretation of the Citizenship Clause generally argue that the American Founders understood the English common law doctrine of jus soli to include only limited exceptions for children born to diplomats and hostile occupying forces, and that, as various passages in the Wong Kim Ark decision describe, this understanding of the jus soli doctrine informed the framing of the Fourteenth Amendment.

Interpretations of the legislative history of the Citizenship Clause of the Fourteenth Amendment, and of its precursor language in the Civil Rights Act of 1866, are similarly divergent, even as to some of the very same passages in the Congressional Globe . As recognized by the Supreme Court, "the legislative history of the Fourteenth Amendment … like most other legislative history, contains many statements from which conflicting inferences can be drawn…." Those in favor of narrowing birthright citizenship often point to passages in the 1866 congressional debates referring to "complete jurisdiction" or notions of "allegiance," arguing that the framers of the Fourteenth Amendment would not have understood today's unlawfully present aliens or their U.S. born children as meeting these requirements. However, the legislators' statements cited by consensualist writers were made largely, though not entirely, in the context of the exclusion from the Citizenship Clause of members of Indian tribes. As proponents of retaining birthright citizenship point out, other indicia in the legislative history indicate that children of aliens were considered differently than children of Indian tribe members and were broadly intended to be included within the Citizenship Clause's scope. The two sides also differ as to how the Civil Rights Act of 1866's language giving citizenship to all persons born in the United States "not subject to any foreign power" should be evaluated in interpreting the modified language in the Citizenship Clause of the Fourteenth Amendment.

Within the consensualist camp, it appears that most argue that Wong Kim Ark could be interpreted narrowly, rather than overturned, in order to support reinterpreting the Citizenship Clause. As noted above, Wong Kim Ark's parents had apparently established as firm a foothold in the United States as was legally available to them; the holding of the case referred to their "permanent domicil and residence in the United States" at the time of his birth, although the rest of the analysis and the discussion in the case ranged much more broadly. Proponents of the birthright citizenship status quo argue that the Elk v. Wilkins and Wong Kim Ark Supreme Court decisions in the 1800s essentially settled the meaning of the Citizenship Clause, in part by enumerating the few exceptions to the jus soli doctrine, which did not include the unlawful or temporary presence in the United States of a person's alien parents at the time of that person's birth.

Supporters of the ascriptive and consensual viewpoints also debate, for example, whether other case law supports giving the term "jurisdiction" in the Citizenship Clause its more conventional and straightforward definition based on geographic territoriality, or a narrower and more context-specific definition based on allegiance and consent. Supporters of the prevailing interpretation also argue that a broader interpretation of "jurisdiction" hews more closely to a textualist approach, and avoids having to draw an "elaborate construct" of consent and allegiance from contextual sources.

Disagreement over Historical Precedent for Modern Immigration Issues

An argument often raised by those who wish to change the current rule of birthright citizenship is that illegal immigration, in the form it exists today, did not exist prior to the adoption of general immigration statutes, which was well after the adoption of the Fourteenth Amendment. Some commentators have argued that "it is simply wrong to assert that there has ever been a conscious deliberate decision, by the framers of the Fourteenth Amendment or its judicial interpreters, to accord birthright citizenship under the [Citizenship] clause to children of illegal aliens." Proponents of a narrower interpretation argue that the United States embraced a more open borders policy prior to the Twentieth Century, and point out that the framers of the Fourteenth Amendment apparently did not discuss unlawfully present aliens per se, as recorded in the Congressional Globe (precursor to today's Congressional Record ). The Wong Kim Ark decision also did not expressly declare that the children of unlawfully present aliens were included within the scope of the Citizenship Clause, because Wong Kim Ark's parents had apparently been lawfully domiciled in San Francisco at the time of his birth.

On the other hand, the Chinese Exclusion Acts were a legal fact by the time the Wong Kim Ark case was decided, and any Chinese citizen who entered the United States in violation of these Acts would have been unlawfully present. Violations of the Chinese Exclusion Acts were known by the time of Wong Kim Ark to have occurred, and some late nineteenth century writers believed they had occurred at a large scale. Some modern commenters have also pointed to slaves imported in violation of the slave import ban that took effect in 1808, or to socially isolated and generally unwelcome "Gypsies" allegedly entering the United States, as nineteenth century precursors to today's unlawfully present aliens that would have been known to the framers and judicial interpreters of the Citizenship Clause. The discussion over whether modern illegal immigration is novel also raises broader issues regarding how to apply the Constitution to social conditions that may have been unanticipated by the framers.

Proposed Legislative Reinterpretations of the Citizenship Clause

Lawmakers in Congress, as well as state-level legislators and various interest groups, have offered proposals since at least the early 1990s to restrict automatic U.S. citizenship at birth. Some of these have taken the form of resolutions proposing to amend the Constitution, but it appears that the more often proposed approach is to amend the Immigration and Nationality Act without constitutional amendment.

In 1995, a hearing was held on a collection of bills and resolutions to deny automatic citizenship at birth to children born in the United States to parents who are not citizens or permanent residents. A decade later, another hearing was held involving the topic of birthright citizenship.

More recently, companion measures entitled the "Birthright Citizenship Act of 2015" were introduced in both the House and the Senate. The bills would amend Section 301 of the Immigration and Nationality Act to provide, applicable prospectively as of the date of enactment, that:

Acknowledging the right of birthright citizenship established by section 1 of the 14 th amendment to the Constitution, a person born in the United States shall be considered 'subject to the jurisdiction' of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is—

(1) a citizen or national of the United States;

(2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or

(3) an alien performing active service in the armed forces….

In other words, if both parents were unlawfully present aliens or were present only on nonimmigrant visas or as refugees or asylees at the time of the birth of their child, that child would not be granted U.S. citizenship. At least one parent would have to be a citizen, a non-citizen national (such as an American Samoan), a lawful permanent resident (i.e., green card holder), or actively serving in the U.S. Armed Forces in order for a U.S. born child to obtain citizenship at birth. An amendment with similar contents was offered in March 2015 to the Justice for Victims of Trafficking Act, but the amendment was not added to the bill.

The House Judiciary Committee's Subcommittee on Immigration and Border Security held a hearing in April 2015 entitled "Birthright Citizenship: Is It the Right Policy for America?" Attendees and witnesses at the hearing extensively discussed legal and constitutional issues of restricting birthright citizenship by statute, including much of the historical development, legislative history, and case law reviewed in this report.

Legality of Narrowing the Citizenship Clause Without Constitutional Amendment

It is generally acknowledged, even by those who would change it, that the current policy of automatically granting U.S. citizenship to essentially every person born in the United States is at least permissible under the Citizenship Clause. This is because the Citizenship Clause sets a minimum guarantee, a floor above which Congress may but is not required to extend U.S. citizenship by birth to additional groups, as it has done for Native Americans and for children of U.S. citizens born abroad under certain circumstances. If, as many argue, the current interpretation is required under the language and context of the Citizenship Clause and relevant judicial precedent, then a statute or other action purporting to reinterpret the Citizenship Clause more narrowly would be held unconstitutional, and a new amendment to the Constitution would be necessary to impose new restrictions on America's birthright citizenship policy.

It would likely fall to the judicial branch to determine whether the Citizenship Clause would permit a narrower interpretation by Congress (or by the Executive Branch). This determination could potentially require a court to weigh a number of complex considerations, including:

canons of constitutional interpretation, including the degree to which textualist, originalist, traditionalist, prudential, and aspirational or ethical approaches should be applied to the Citizenship Clause; separation of powers, and each branch's relative authority to interpret—and particularly to limit—rights set forth in the Constitution, especially the Fourteenth Amendment; stare decisis, or adherence to judicial precedent, and how to interpret and apply relevant cases; and the specific nature and language of the citizenship-limiting statute or other action under review.

Opinions on the most likely outcome of such a determination differ. Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, stated in a 1996 concurrence that "[a] constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it. … Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense." Some commentators have testified before Congress that they believe a statute denying birthright citizenship to children of unlawfully present aliens would likely survive constitutional challenge. Others, however, have concluded that any of a number of legal and constitutional obstacles would more likely prove insurmountable to a narrower reinterpretation of the Citizenship Clause.

Since automatic granting of American citizenship to all who are born here, without inquiring into parental origins or status, has been the practice and the law for more than a century, some supporters of the status quo have contended that a reinterpretation of the Citizenship Clause would mark a "seismic shift" in constitutional law. The size of the policy change, in itself, could present an impediment to judicial support for the constitutionality of a citizenship-limiting statute. Opponents of reinterpretation could also urge a court to take into legal consideration what they view as practical, policy, or ethical considerations stemming from issues such as the potential for creation of a stateless subpopulation. It has also been argued that "[t]he justices may also be reluctant to weaken a constitutional amendment explicitly designed to override a previous Supreme Court ruling—especially if that ruling was Dred Scott ." On the other hand, proponents of a narrower reinterpretation could potentially avail themselves of a number of practical and policy counterarguments; for example, some have asserted that a major divergence of modern circumstances from historical assumptions warrants a change from the prevailing interpretation.

Congress's authority to reinterpret the Citizenship Clause, to exclude persons born in the United States to unlawfully or temporarily present aliens from its scope, would be significantly constrained if the Wong Kim Ark decision and subsequent case law were to be interpreted as having settled that issue in favor of those persons' inclusion. Factors that the U.S. Supreme Court generally considers when responding to a request to overrule precedent include whether that precedent "has proved 'unworkable' …, the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned." Ultimately, the Court "does not overturn its precedents lightly. Stare decisis … is a foundation stone of the rule of law, … [and] 'any departure' from the doctrine 'demands special justification.'" However, if any discussion in Wong Kim Ark arguably extending beyond the citizenship of a person born to lawfully present and domiciled aliens is deemed mere dicta, unnecessary to the case's holding, then the Court would not be bound by it, although it could still weigh the dicta's persuasive value.

Other precedent less specific to citizenship issues could pose legal obstacles to a reinterpretation as well. For example, courts would have to grapple with the meaning of "jurisdiction" as it has been interpreted in the context of the Equal Protection Clause, which follows the Citizenship Clause in the Fourteenth Amendment.

Finally, any statute reinterpreting the Citizenship Clause would be far more difficult to uphold if it were designed to operate retroactively to remove or revoke any living person's U.S. citizenship. As stated by the Supreme Court in Afroyim v. Rusk , a 1967 case that held unconstitutional a statute that provided that a U.S. citizen would lose his citizenship upon voting in a political election in a foreign state:

Citizenship is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. … The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.

However, Congress tends to propose applying birthright citizenship restrictions only prospectively, which, as a consequence, would not result in the loss of citizenship by any person already a citizen. Nevertheless, a number of hurdles to such bills likely remain, including but not limited to the weight of the legislative history of the Fourteenth Amendment, the extensive discussion in Wong Kim Ark , the statements in various cases defining "jurisdiction" more often on the basis of territory rather than undivided allegiance, and the embrace of the prevailing birthright citizenship interpretation by more than a century of subsequent law and practice. In light of these factors, it appears likely that a constitutional challenge to a statute denying citizenship to persons born to unlawfully present or nonimmigrant aliens could possibly succeed in barring the statute, absent a constitutional amendment providing that such persons do not acquire citizenship by right of their birth in the United States.