Birthright Citizenship Under the14th Amendment of Persons Born in the United States to Alien Parents

Margaret Mikyung Lee
Legislative Attorney

Over the last decade or so, concern about illegal immigration has sporadically led to a reexamination 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 111th 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.


Date of Report: August 12, 2010
Number of Pages: 21
Order Number: RL33079
Price: $29.95

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