Immigration Article of the Day: Anchors Aweigh: Analyzing Birthright Citizenship as Declared (Not Established) by the Fourteenth Amendment by Elizabeth Burnett Farrington
Anchors Aweigh: Analyzing Birthright Citizenship as Declared (Not Established) by the Fourteenth Amendment by Elizabeth Burnett Farrington Independent May 19, 2016 University of Richmond Law Review, Forthcoming
Abstract: Much has been and will be said concerning President-elect Trump’s immigration policies. But the vast majority of that commentary has focused on his plans to enforce existing policy by deporting undocumented immigrants currently living in the United States and, of course, to build a wall on the United States border with Mexico. Less has been said, however, about any potential plans to change existing law regarding birthright citizenship — the process by which children of undocumented immigrants born on United States soil are granted full citizenship status.
The Fourteenth Amendment provides in pertinent part: “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.” This clause has historically granted citizenship to “anyone born on American territory, no matter their national origin, ethnicity, or station in life.” Relatively recently, this interpretation has come under fire. Some scholars believe we must repeal this clause due to policy concerns surrounding immigration and undocumented immigrants. Others argue that we could remove the promises of birthright citizenship without repealing the clause or the amendment; they argue that we have misinterpreted this clause.
The amendment was passed in response to, inter alia, the Dred Scott decision denying citizenship to former slaves; in that respect, the citizenship clause was perhaps included to guarantee the right to citizenship for all newly freed African Americans born within U.S. borders. Although this clause seemed to put forth a straightforward test, that anyone born with the country’s borders is a citizen, some argue it was passed only to grant citizenship to former slaves freed by the Thirteenth Amendment and that full birthright citizenship is not warranted.
This essay argues that birthright citizenship is in accordance with both the original intent and public understanding of the Fourteenth Amendment’s citizenship clause. What’s more, it argues that Congress’ inclusion of the clause was not to change the definition of citizenship, but rather to affirm the practice established long before Reconstruction.
KJ