Read the full paper here.
Birthright citizenship is the constitutional guarantee that a person born on U.S. soil will be a U.S. citizen. The idea of birthright citizenship developed out of the English common law principle of jus soli, literally “right of soil.” In practice, this means that with very few exceptions, anyone who is born on U.S. soil becomes a U.S. citizen at birth.
The Fourteenth Amendment to the U.S. Constitution established birthright citizenship in the United States in the aftermath of the Civil War. The amendment’s Citizenship Clause states that “[a]ll 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.” And the clause finds its statutory expression in the Immigration and Nationality Act (INA), which echoes the amendment, providing that “a person born in the United States, and subject to the jurisdiction thereof” shall be a national and citizen of the United States at birth. The seminal case on birthright citizenship, United States v. Wong Kim Ark, explained the application and scope of the clause — specifically, it explained that the phrase “subject to the jurisdiction thereof” means someone who must obey U.S. law, and hence applies to the children of aliens.
Critics have argued that birthright citizenship is ripe for abuse by encouraging undocumented immigration or “birth tourism.” However, there is no evidence that the system is being widely abused. Some critics have further argued that birthright citizenship is not actually required by the Fourteenth Amendment and could be restricted by Congress or the president without the need for constitutional amendment. This argument is contradictory to long-standing precedent and the vast consensus among legal scholars, including originalists.
Birthright citizenship has been the law of the land since at least 1868. And it is good policy, too. Birthright citizenship is a strength, rather than a weakness, of the American immigration system, encouraging assimilation by allowing children of immigrants to participate in the life of their country as citizens. This streamlined citizenship system has demonstrable economic benefits for those individuals as well as those born to natives, while also providing the political benefits of quickly integrating new populations into the social and political life of the country.