The Debate About Birthright Citizenship

The US grants citizenship to anyone born within its jurisdiction, (as do Canada, Mexico and most South American countries). Recently, however, there’s been a growing debate about whether this practice is supported by the constitution and whether in any event it should be changed. A panel of immigration and constitutional law experts explored these issues this morning at the ABA meeting in Toronto.

In essence the concern on the part of those who would change the practice — and the law, if necessary — has to do with granting automatic citizenship to the children of undocumented immigrants, which, I gather, is felt to induce or reward illegal immigration, itself the felt problem. This concern is felt so strongly in some states that bills have been proposed that would attempt to exert state control over aspects of citizenship. The bar to this — and the fount of the current practice and the debate about it — is the 14th Amendment to the US Constitution, passed in 1868 after the Civil War and intended specifically to ensure that freed slaves would be incorporated into the nation and to overturn the Scott v. Sandford (aka Dred Scott) decision. Section 1 reads as follows:

    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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The phrase “subject to the jurisdiction thereof” has an element of ambiguity to it, given the various ways in which one might understand the notions of jurisdiction and subjection. And the argument of those who would oppose citizenship for the children of undocumented immigrants is that, here, “subject to the jurisdiction” should be understood to mean something more than mere presence on the soil at birth (jus soli). This, their opponents and supporters of the current practice point out, would visit a hardship upon children for what their parents or ancestors were and did; and, moreover, it would create a bureaucratic nightmare if the bright line rule of jus soli was abandoned.

Listening to this discussion in Canada, I couldn’t help seeing reflections of our own situation. Here our citizenship rules are a matter of federal statute, not the constitution, and so are at once less exalted and more easily changed. We, too, have units in the federation that are concerned about immigration and would like to control it; but here an arrangement has been struck between the federal government and the government of Quebec. And we, too, engage in legal debates about the meaning of aspects of our constitution and our laws; but rarely if ever do we see the line drawn in the way it is in the US between “originalists” and others. It’s hard to imagine who would be admitted to the group of framers for our Charter of Rights and Freedoms, for example, even if we were tempted to reconstruct their mental processes. (Can you imagine consulting the ghost of Pierre Trudeau, for example?)

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  1. A completely different perspective on the topic is taken by Professor Ayelet Shochar in her book The Birthright Lottery. There she argues that acquiring citizenship by birth is unfair – either an unfair advantage to people born in ‘good’ countries or an unfair disadvantage to people born in the others. She proposes some kind of compensatory levy to equalize ‘birth’ chances. The book has been variously reviewed. Here is one discussion.

    Prof. Shochar’s viewpoint would cut very little ice indeed in the US these days, one suspects.

  2. Interesting, John. This is a child of Rawls’s “original position” thought experiment, it seems.

    I’d say that no immigration (or citizenship) policy can be ultimately rational (or perhaps fair), given that at the base they’re all dependent on arbitrary national boundaries.

  3. I agree that birthright citizenship is unfair seen on a global perspective. But I also can not think of anything that most parents in Canada, or other fortunate countries, want to bequeathe to their children than a share in this country, or whatever fortunate country is theirs. Just as a parent may divide their estate, of whatever size, equally among her or his children — and nobody asks whether it is fair that one estate is much smaller and another much larger. One might want to argue in favour of higher estate taxes but I do not hear arguments in favour of abolishing the practice of writing wills that leave one’s estate, minus taxes, debts and other prior obligations. Likewise, bequeathing citizenship is neither fair nor unfair. And the fact that it is given to the child at birth, or a few years after adoption does not make it less of a gift from the parent(s) to the child(ren).

    Mickey Posluns.

  4. The ABA failed to give the full picture on birthright citizenship. A better analysis is available at the link below. It also includes a list of which countries do what on birthright citizenship: