CRS Report for Congress Prepared for Members and Committees of Congress Birthright Citizenship Under the 14 th Amendment of Persons Born in the United States to Alien Parents Margaret Mikyung Lee Legislative Attorney August 12, 2010 Congressional Research Service 7-5700 crs.gov RL33079 Birthright Citizenship Under the 14 th Amendment of Persons Born to Alien Parents Congressional Research Service Summary Over the last decade or so, concern about illegal immigration has sporadically led to a re- examination 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 111 th 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. Birthright Citizenship Under the 14 th Amendment of Persons Born to Alien Parents Congressional Research Service 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 Birthright Citizenship Under the 14 th Amendment of Persons Born to Alien Parents Congressional Research Service 1 Introduction Over the last decade or so, concern about illegal immigration has sporadically led to a re- examination 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, in response to increased public concern about the lack of movement on comprehensive federal immigration reform legislation, some congressional Members have supported a revision of the Citizenship Clause or at least holding hearings for a serious consideration of it. 1 An Arizona state legislator has proposed state legislation that would deny birth certificates to persons born to undocumented aliens. 2 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. Some proponents of immigration reform have advocated either constitutional or statutory amendments to limit automatic citizenship upon birth in the United States so that persons born in the United States to parents who are unlawfully present in the United States or are non-immigrant aliens would not become U.S. citizens. This report traces the history of “automatic birthright citizenship” under U.S. law and discusses the legislation in recent Congresses intended to alter it. Historical Development Jus Soli Doctrine Before the Fourteenth Amendment There are two basic doctrines for determining birthright citizenship. Jus soli is the principle that a person acquires citizenship in a nation by virtue of his birth in that nation or its territorial possessions. 3 Jus sanguinis is the principle that a person acquires the citizenship of his parents, “citizenship of the blood.” 4 The English common law tradition prior to the Declaration of Independence, which was the basis of the common law in the original 13 colonies and which was adopted by most of the states as the precedent for state common law, 5 followed the jus soli 1 J. Taylor Rushing and Bob Cusack, GOP leader McConnell: Fourteenth Amendment is in need of review , T HE H ILL , Aug. 2, 2010; Miriam Jordan, Jean Guerrero, Laura Meckler, U.S. Immigration Fight Widens to Native Born , W ALL S T . J., July 30, 2010, at A5. 2 Jordan, Guerrero, Meckler, supra footnote 1. In 2008, a similar proposal was the subject of a ballot initiative petition in Arizona, but it failed to meet the requirements for inclusion on the general election ballot. 3 Black’s Law Dictionary 775 (5 th Ed. 1979); entry for “jus soli.” 4 Id .; entry at “jus sanguinis.” 5 Lynch v. Clarke , 1 Sandford Ch. 583, 646 (N.Y. 1844); 4 C HARLES G ORDON , S TANLEY M AILMAN & S TEPHEN Y ALE - L OEHR , I MMIGRATION L AW AND P ROCEDURE § 92.03[1][b] (2005); Isidor Blum, Is Gov. George Romney Eligible to be President? [part two] , New York Law Journal, p. 1, col. 5 (October 17, 1967). Birthright Citizenship Under the 14 th Amendment of Persons Born to Alien Parents Congressional Research Service 2 doctrine. 6 Persons born within the dominion of the sovereign and under the protection and ligeance of the sovereign were subjects of the sovereign and citizens of England; this included persons born to “aliens in amity” who owed temporary allegiance to the sovereign while in his territory. 7 The exceptions were persons born to members of a hostile occupying force or to diplomats representing another sovereign. 8 The reason was that the children of a hostile occupying force did not owe allegiance to nor were born under the protection of the proper sovereign of the occupied territory. The children of diplomats, although enjoying the temporary protection of the sovereign while in his/her dominions, actually owed allegiance to and had a claim to the protection of the sovereign whom their parents represented at the court of the sovereign in whose dominions they were born. All civilized nations recognize and assent to the immunity of foreign diplomats from their jurisdiction, without which a foreign ambassador might not be able to effectively represent the sending sovereign, but it would be “inconvenient and dangerous to society ... if [private individual aliens] did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.” 9 The original framers of the U.S. Constitution did not define citizenship of the United States, although the Constitution required that a person have been a citizen of the United States for seven years to be a Representative and for nine years to be a Senator, 10 and that a person be a natural- born citizen or a citizen at the time of the adoption of the Constitution in order to be eligible to be President (and therefore, Vice President). 11 The Naturalization Act of 1790 and subsequent acts until the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment did not define citizenship by birth within the United States. 12 These naturalization acts specified that only free white persons could be naturalized. As a result of the absence of any definition in the Constitution or federal statutes of U.S. citizenship by birth in the United States, citizenship by birth in the United States generally was construed in the context of the English common law. 13 This provided the frame of reference and definition of “citizenship” that the framers of the Constitution would have understood and also provided the pre-independence precedent for state common laws. The acquisition of citizenship by birth and by naturalization in the United States depended on state laws, both statutory and common law, until the enactment of the naturalization law in 1790. 14 The 6 4 G ORDON , M AILMAN & Y ALE -L OEHR , supra footnote 5, at § 92.03[1][a & b]; Jill A. Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty , 97 Yale L.J. 881, 886 & n. 24 (1988). 7 United States v. Wong Kim Ark , 169 U.S. 649, 655-668 (1898); Lynch v. Clarke , 1 Sandford Ch. at 670; Calvin’s Case , 7 Coke’s Reports 1, 8-21 (1607)(as reprinted in vol. 4 of the 1826 edition edited by John H. Thomas & John F. Fraser). 8 United States v. Wong Kim Ark , 169 U.S. at 675, 682-688; Calvin’s Case , 7 Coke’s Reports at 10-11. 9 United States v. Wong Kim Ark , 169 U.S. at 683-688, citing the case of The Exchange, 7 Cranch. 116 (1812). 10 U.S. Const. art. I, §2, cl. 2 (Representatives), U.S. Const. art. I, § 3, cl. 3 (Senators). 11 U.S. Const. art. II, § 1, cl. 5. 12 Act of March 26, 1790, 1 Stat. 103; Act of January 29, 1795, 1 Stat. 414; Act of April 14, 1802, 2 Stat. 153; Act of February 10, 1855, 10 Stat. 604. 13 Lynch v. Clarke , 1 Sandford Ch. at 646, 658; Isidor Blum, supra footnote 5, at p. 1, col. 5. 14 One should note that the determination of U.S. citizenship by naturalization also depended on state laws prior to the enactment of the first federal naturalization act. The election of Albert Gallatin to the U.S. Senate in 1793 was successfully challenged on the grounds that he had not been a U.S. c itizen for nine years as required by the Constitution. 4 A NNALS OF C ONGRESS , 3 rd Cong. 47-55, 57-62 (Gales & Seaton 1849—there may be some difference in the pagination between different printings of the same congressional debates) (covering period of February 20-28, 1794). He claimed that he had become a citizen of either Virginia or Massachusetts at least nine years before his election. But a majority of the Senate, upon an examination of the Virginia and Massachusetts citizenship laws, decided that Gallatin had not satisfied the residency of either state prior to moving to Pennsylvania, where he ultimately settled (continued...)
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