The Declaration of Independence famously asserted that “all men are created equal,” but this assertion did not become an American constitutional reality until the Fourteenth Amendment was ratified in 1868. The Fourteenth Amendment’s Citizenship Clause—intended to overturn the infamous U.S. Supreme Court decision in the Dred Scott (1857) case—states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Traditionally, the clause has been interpreted to confer U.S. citizenship on anyone born within the United States whose parents are subject to U.S. civil and criminal laws—which has historically meant that only babies born in the United States to diplomats, invading armies, or within certain sovereign Native American tribes have been excluded from birthright American citizenship. Alarmed by the thought that unauthorized immigrants, wealthy tourists, and temporary workers are giving birth to thousands of U.S. citizens, some want to change the long-standing rule by reinterpreting or amending the Citizenship Clause. But will this proposed change be good for America? Will it benefit America to reduce substantially the number of birthright U.S. citizens—and put in place more complex rules that would provide that U.S.-born babies are not created equal?
A Brief History of the U.S. Birthright Citizenship Rule
At the time of the ratification of the U.S. Constitution in 1790, the new United States recognized three different paths to American citizenship: First, a person could be born a foreigner and later apply to become a U.S. citizen through the naturalization process; this pathway fell under Congress’s power to create a “uniform rule of naturalization,” as stated in Article I, Section 8 of the U.S. Constitution. Second, following the international law rule, a person might inherit citizenship from his or her citizen parents; this pathway—termed the jus sanguinis or the citizenship by blood or descent rule—was thought to be within the naturalization power of Congress as well, and was first permitted when Congress passed the Naturalization Act of 1790, which accorded “natural born citizen” status to the foreign-born children of certain U.S. citizens. 1 Finally, however, the United States also adopted the British common-law rule of jus soli (law of the soil) for persons born within the territorial jurisdiction of the United States whose parents were subject to U.S. civil and criminal laws. Thus, in the 1844 New York state court case of Lynch v. Clarke (1844), Judge Lewis Sandford wrote...
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