Birthright Citizenship: A Constitutional Guarantee

May 5, 2009

ACS is pleased to distribute an issue brief by Elizabeth B. Wydra, Chief Counsel at the Constitutional Accountability Center, entitled "Birthright Citizenship: A Constitutional Guarantee". Ms. Wydra explains that, “Since its ratification in 1868, the Fourteenth Amendment has guaranteed 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.” Notwithstanding this Amendment, Ms. Wydra observes “opponents of birthright citizenship continue to fight this constitutional guarantee” in myriad ways.

Ms. Wydra maintains that these efforts are directly contrary to the express text of the Fourteenth Amendment as well as its history and animating principles. Ms. Wydra explains that the “powerfully plain language” of the Citizenship Clause of the Fourteenth Amendment “embodies the jus soli rule of citizenship, under which citizenship is acquired” though place of birth. Moreover, Ms. Wydra notes, the legislative debates surrounding the Citizenship Clause show “that both its proponents and opponents agreed that it recognizes and protects birthright citizenship for the children of aliens born on U.S. soil. . . . Whether the members of the Reconstruction Congress understood the Citizenship Clause to be a welcomed turn toward equality—and voted for it—or a worrisome invitation to foreign migrants—and voted against it—both sides agreed on the enacted Clause’s meaning.” The proponents of the Amendment choose to constitutionalize the issue of birthright citizenship to overrule the Dred Scott decision and “to place the question of who should be a citizen beyond the mere consent of politicians and the sentiments of the day,” argues Ms. Wydra. She then addresses modern arguments that the Fourteenth Amendment does not provide for birthright citizenship but instead citizenship based on the “allegiance” of one’s parents or “consent.” According to Ms. Wydra, while the Reconstruction Framers could have inserted language that would have conditioned citizenship in those ways, they “were not poor wordsmiths and they chose to do none of those things. Instead, they devised a rule that is elegantly simple and intentionally fixed.”

Read the full Issue brief here: Birthright Citizenship: A Constitutional Guarantee