Immigration Articles of the Day: On Birthright Citizenship

The Fourteenth Amendment’s Citizenship Clause connected borders, birth, and egalitarian status to forge a new definition of U.S. citizenship, freed for the first time from the constraints of race and lineage. This Article locates a forerunner to the Citizenship Clause in antebellum laws enacted by six northern states under which all persons born within their borders were deemed free, regardless of their parents’ race or enslaved status. In subsequent freedom suits, courts in these states declared that this rule applied even to children born to fugitive slaves, holding that the child’s status turned solely on location of birth, not the mother’s enslavement.

The Article begins by analyzing the development of “birthright freedom”–an antebellum doctrine that was well known at the time to lawyers, politicians, and at least some enslaved women, who freed their children by escaping to free states while pregnant. These six states not only declared the children of slaves born within their borders to be free–albeit required to serve lengthy periods of indenture to their mother’s enslaver–they also mandated that these children be educated and treated as “servants” (not slaves), and that their births be registered with the state to protect their free status. The Article then argues that this linkage of location of birth, legal status, and membership rights provides socio-legal context for the drafting and ratification of the Citizenship Clause. In conclusion, the Article describes how the doctrines of birthright freedom and birthright citizenship have shaped legal rules and social practices around borders, birth, and status throughout U.S. history.

On his first day in office upon reelection, President Donald Trump issued an executive order purporting to deny citizenship to children born in the United States to undocumented parents. If successful, Trump’s order would fulfill a longtime goal of the immigrant restrictionist movement, but would also challenge the interpretation of the Fourteenth Amendment’s citizenship clause that the Supreme Court has maintained since its 1898 decision in Wong Kim Ark. This Article argues that dispensing with Wong Kim Ark’s guarantee of universal birthright citizenship would have profound consequences not only for the children of undocumented immigrants, but for all U.S. citizens. In a federalized legal and political system that also lacks a centralized registry of births and identifying information, the prevailing interpretation of the citizenship clause creates a relatively simple process for proving who is a citizen—for most people born in the United States, a birth certificate issued by a state, county, or municipal government provides sufficient proof of status. Without universal birthright citizenship, all Americans may find themselves struggling to navigate a patchwork of federal and sub-federal rules and procedures to prove that they are citizens. Rather than protect the native population against the threat of outsiders, ending birthright citizenship would make it easier to put all Americans’ rights at risk.

KJ