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_______________________________
Institute for Workplace Studies----------------- Professor Samuel B. Bacharach
School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies
Cornell University
16 East 34th Street, 4th floor---------------------- Stuart Basefsky
New York, NY 10016 -------------------------------Director, IWS News Bureau
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Congressional Research Service (CRS)

 

Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents

Margaret Mikyung Lee, Legislative Attorney

August 12, 2010

http://opencrs.com/document/RL33079/2010-08-12/download/1013/

[full-text, 21 pages]

 

Summary

Over the last decade or so, concern about illegal immigration has sporadically led to a reexamination

of a long-established tenet of U.S. citizenship, codified in the Citizenship Clause of

the Fourteenth Amendment of the U.S. Constitution and §301(a) of the Immigration and

Nationality Act (INA) (8 U.S.C. §1401(a)), that a person who is born in the United States, subject

to its jurisdiction, is a citizen of the United States regardless of the race, ethnicity, or alienage of

the parents. The war on terror and the case of Yaser Esam Hamdi, a U.S.-Saudi dual national

captured in Afghanistan fighting with Taliban forces, further heightened attention and interest in

restricting automatic birthright citizenship, after the revelation that Hamdi was a U.S. citizen by

birth in Louisiana to parents who were Saudi nationals in the United States on non-immigrant

work visas and arguably entitled to rights not available to foreign enemy combatants. More

recently, some congressional Members have supported a revision of the Citizenship Clause or at

least holding hearings for a serious consideration of it. An Arizona state legislator has voiced

support for state legislation that would deny birth certificates to persons born to undocumented

aliens. This report traces the history of this principle under U.S. law and discusses some of the

legislation in recent Congresses intended to alter it.

 

The traditional English common-law followed the doctrine of jus soli, under which persons born

within the dominions of and with allegiance to the English sovereign were subjects of the

sovereign regardless of the alienage status of their parents. The exceptions to this rule are persons

born to diplomats, who are born subjects of the sovereign whom the parents represent abroad, and

persons born to citizens of a hostile occupying force, who are born subjects of the invading

sovereign. Although the states and courts in the United States apparently adopted the jus soli

doctrine, there still was confusion about whether persons born in the United States to alien

parents were U.S. citizens. This arose because citizenship by birth in the United States was not

defined in the Constitution nor in the federal statutes. Legal scholars and law makers were torn

between a “consensualist” doctrine of citizenship, by which a person and a government consent to

be mutually obligated, and an “ascriptive” doctrine by which a person is ascribed citizenship by

virtue of circumstances beyond his control, such as birth within a particular territory or birth to

parents with a particular citizenship. Additionally, African Americans were not considered

citizens of the United States, even if they were free. Native Americans also were not considered

U.S. citizens because they were members of dependent sovereign Indian nations. The Civil Rights

Act of 1866 and the Fourteenth Amendment, ratified in 1868, extended birthright citizenship to

African Americans and also to most persons born in the United States. In an 1898 decision,

United States v. Wong Kim Ark, the United States Supreme Court made clear that U.S.-born

children of aliens were U.S. citizens regardless of the alienage and national origin of their parents,

with narrow exceptions for the children of foreign diplomats and hostile invasion and occupation

forces of a foreign nation. However, in the 1884 decision Elk v. Wilkins, the Supreme Court held

that Native Americans were not U.S. citizens under the terms of the Citizenship Clause. Native

Americans were U.S. citizens by treaties or statutes granting U.S. citizenship to members of

specific tribes. Immigration statutes enacted in 1924, 1940, and 1952 granted U.S. citizenship to

all Native Americans.

 

In the 111th Congress, H.R. 126, §301 of H.R. 994, H.R. 1868, §7 of H.R. 5002, and S.J.Res. 6

would amend the Constitution and/or the INA to exclude from citizenship at birth persons born in

the United States whose parents are unlawfully present in the United States or are nonimmigrant

aliens. This report will be updated as necessary.

 

Contents

Introduction ...............................................................................................................................1

Historical Development...............................................................................................................1

Jus Soli Doctrine Before the Fourteenth Amendment.............................................................1

The Fourteenth Amendment and the Civil Rights Act of 1866 ...............................................5

United States v. Wong Kim Ark and Elk v. Wilkins ..................................................................7

Legislative Proposals ..................................................................................................................9

Constitutional and Statutory Amendments .............................................................................9

Constitutional Amendments and Related Statutory Amendments ...................................10

Statutory Amendments Without Related Constitutional Amendments.............................12

Other Statutory Amendments ........................................................................................14

Congressional Act Without Constitutional Amendment........................................................14

Contacts

Author Contact Information ......................................................................................................18

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This information is provided to subscribers, friends, faculty, students and alumni of the School of Industrial & Labor Relations (ILR). It is a service of the Institute for Workplace Studies (IWS) in New York City. Stuart Basefsky is responsible for the selection of the contents which is intended to keep researchers, companies, workers, and governments aware of the latest information related to ILR disciplines as it becomes available for the purposes of research, understanding and debate. The content does not reflect the opinions or positions of Cornell University, the School of Industrial & Labor Relations, or that of Mr. Basefsky and should not be construed as such. The service is unique in that it provides the original source documentation, via links, behind the news and research of the day. Use of the information provided is unrestricted. However, it is requested that users acknowledge that the information was found via the IWS Documented News Service.

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Stuart Basefsky                   
Director, IWS News Bureau                
Institute for Workplace Studies 
Cornell/ILR School                        
16 E. 34th Street, 4th Floor             
New York, NY 10016                        
                                   
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