Made in America: Myths and Facts about Birthright Citizenship

James C. Ho, Esq., Margaret D. Stock, Esq. and Eric K. Ward


March 25, 2010

The Fourteenth Amendment to the Constitution is enshrined in U.S. history as the cornerstone of American civil rights, ensuring due process and equal protection under the law to all persons. Equally important, however, is the Fourteenth Amendment’s affirmation that all persons born or naturalized in the United States and subject to its jurisdiction are, in fact, U.S. citizens:

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.

Most recently, pundits used the issue of birthright citizenship to challenge the legitimacy of both major parties’ candidates in the 2008 presidential election. Senator John McCain was born in 1936 on a U.S. military base in the Panama Canal Zone, where his father—a U.S. Naval officer—was posted, causing some to question whether McCain is a natural-born citizen. President Barack Obama was born to a U.S.-citizen mother and an immigrant father in Hawaii in 1961, two years after Hawaii became the 50th U.S. state. Even months into his presidency, some conspiracy theorists still question President Obama’s eligibility to serve.

But the question of who is entitled to U.S. citizenship is most often raised during debates over illegal immigration. While most of the debate turns on the question of who can become a citizen through legalization and naturalization, some groups argue that the way to end illegal immigration is to change the rules of the game by denying citizenship to the U.S.-born children of illegal immigrants.

Each year, bills are introduced in Congress to deny U.S. citizenship to the children of illegal immigrants and, in some cases, the children of immigrants who are in the country on temporary visas. On May 29, 2009, Rep. Nathan Deal (R-9th/GA) re-introduced his “Birthright Citizenship Act” (HR 1868), which would deny birthright citizenship to children born in the United States to illegal, and even temporary, immigrants. Recently, there have been proposals to abolish birthright citizenship in Texas and California by state lawmakers, who hope to advance a national debate on the issue and push a legal challenge to the Supreme Court.

Rarely, however, does the immigration advocacy community explore the impact of the birthright citizenship debate as it relates to the Fourteenth Amendment. Thus, the Immigration Policy Center invited respected scholars and authors to provide greater perspective on this perennial issue.

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