Understanding Birthright Citizenship in the United States: History, Legal Debates, and Policy Implications

What is Birthright Citizenship?

Birthright citizenship, also known as jus soli (right of the soil), is the legal principle that grants automatic U.S. citizenship to anyone born on U.S. soil, regardless of parental nationality or immigration status. This concept is rooted in the Fourteenth Amendment to the U.S. Constitution and has been a cornerstone of American nationality law since its ratification in 1868.

Legal Basis: The Fourteenth Amendment

The foundation of birthright citizenship in the United States comes from the Fourteenth Amendment, which states:

“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.”

This clause has been widely interpreted to grant U.S. citizenship to nearly all individuals born within the country, with exceptions for children of foreign diplomats and enemy combatants. However, the phrase “subject to the jurisdiction thereof” has been the focal point of legal and political debates, particularly regarding children born to undocumented immigrants.

Key Supreme Court Case: United States v. Wong Kim Ark (1898)

The landmark case United States v. Wong Kim Ark (1898) reinforced the principle of birthright citizenship. Wong Kim Ark was born in San Francisco to Chinese parents who were legally residing in the U.S. but were not citizens. After being denied re-entry to the U.S., he sued, and the Supreme Court ruled that he was a U.S. citizen by birth, stating that the Fourteenth Amendment applies to nearly everyone born on U.S. soil, except for diplomats and enemy occupiers.

What Does “Subject to the Jurisdiction Thereof” Mean?

One of the primary legal debates surrounding birthright citizenship centers on the interpretation of the phrase “subject to the jurisdiction thereof.”

Interpretation Supporting Birthright Citizenship

Legal scholars and courts have consistently ruled that being “subject to the jurisdiction” of the U.S. means being bound by its laws, paying taxes, and facing legal consequences in the country. This means that nearly all children born on U.S. soil—regardless of their parents’ immigration status—are considered citizens.

Arguments Against Birthright Citizenship for Undocumented Immigrants

Opponents argue that undocumented immigrants are not fully subject to U.S. political jurisdiction because they owe allegiance to another country. Some legal scholars and policymakers, including The Heritage Foundation, suggest that the Fourteenth Amendment was intended only for individuals who have full allegiance to the U.S. and that undocumented immigrants fall outside this category.

Despite these arguments, courts have overwhelmingly upheld birthright citizenship, including in Plyler v. Doe (1982), where the Supreme Court ruled that undocumented immigrants are indeed subject to U.S. laws.

Birth Tourism: A Growing Trend in Immigration Policy Debates

What is Birth Tourism?

Birth tourism, also known as citizenship tourism or pregnancy tourism, refers to the practice of foreign nationals traveling to the United States to give birth so that their child automatically receives U.S. citizenship. This practice is primarily used by families seeking better educational, economic, or immigration opportunities for their children.

How Common is Birth Tourism?

Estimates suggest that around 33,000 children are born annually in the U.S. to individuals on tourist visas. Additionally, hundreds of thousands of children are born each year to temporary visa holders or undocumented immigrants.

Legal and Policy Responses to Birth Tourism

Due to growing concerns about misuse of birthright citizenship, the U.S. State Department implemented new visa regulations in January 2020, making it more difficult for individuals to enter the U.S. for the primary purpose of giving birth. Under these new rules:

• B-2 tourist visas may be denied if an applicant is suspected of planning to give birth in the U.S.
• Additional visa scrutiny applies to travelers from countries with high rates of birth tourism.

Recent Political and Legal Challenges to Birthright Citizenship

Trump Administration’s Efforts to Limit Birthright Citizenship

Former President Donald Trump proposed an executive order to end birthright citizenship for children of undocumented immigrants. However, legal experts widely agreed that such a move would violate the Fourteenth Amendment, leading to swift legal challenges. A federal judge blocked the attempt, reinforcing the constitutional protection of birthright citizenship.

Can Birthright Citizenship Be Changed?

The only way to permanently alter birthright citizenship would be through either:

1. A Constitutional Amendment – Requires approval by two-thirds of both the House and Senate, followed by ratification by three-fourths of U.S. states.
2. A Supreme Court Reversal – The Supreme Court would have to overturn past rulings like Wong Kim Ark, which is unlikely given legal precedent.

Economic and Social Impact of Birthright Citizenship

Economic Contributions of Birthright Citizens

Studies show that children born to immigrant parents contribute significantly to the U.S. economy. Many of them:

• Join the workforce and contribute to Social Security and Medicare.
• Start businesses and drive economic innovation.
• Pay taxes and stimulate economic growth through consumer spending.

Healthcare and Public Benefits Concerns

Critics argue that birth tourism and undocumented immigration place a financial strain on hospitals and social services. However, research indicates that immigrants overall contribute more in taxes than they consume in public benefits.

Global Perspectives on Birthright Citizenship

Countries That Allow Birthright Citizenship

The U.S. is among a handful of countries that grant unrestricted jus soli citizenship. Other nations that recognize birthright citizenship include:

• Canada
• Brazil
• Mexico
• Argentina

Countries That Have Restricted Birthright Citizenship

Several nations that once had birthright citizenship have since restricted it. For example:

• Australia (2007) – Now requires at least one parent to be a citizen or permanent resident.
• Ireland (2005) – Ended automatic birthright citizenship unless one parent is an Irish citizen.
• France (1993) – Requires parents to meet residency requirements before granting citizenship to their child.

Future of Birthright Citizenship in the U.S.

Birthright citizenship remains a highly debated issue, particularly as immigration policy continues to be a focal point of U.S. politics. While legal precedent strongly supports the continuation of birthright citizenship, efforts to challenge it persist.

Key Takeaways:

• The Fourteenth Amendment guarantees birthright citizenship to nearly all individuals born on U.S. soil.
• United States v. Wong Kim Ark (1898) solidified this legal right.
• Birth tourism remains a controversial practice, with U.S. policy adapting to curb its misuse.
• Attempts to change birthright citizenship via executive orders have been legally blocked.
• The economic impact of birthright citizens is generally positive, despite ongoing concerns about public resources.

Final Thoughts

Birthright citizenship remains a defining feature of U.S. nationality law, with deep historical roots and strong constitutional backing. While political and legal debates persist, the legal framework remains firmly in place, ensuring that those born in the U.S. continue to be recognized as citizens. As immigration policies evolve, birthright citizenship will likely remain at the center of national discourse for years to come.