Alex Nowrasteh
Shortly after being inaugurated, President Trump issued an executive order that purports to restrict birthright citizenship. The only authority he invoked for redefining some features of birthright citizenship was “the authority vested in me as President by the Constitution and the laws of the United States of America.”
Birthright citizenship has been the norm in the United States since before the passage of the Fourteenth Amendment and even before the American Revolution, going back to Calvin’s Case in 1608 that established jus soli in all areas ruled by the English Crown. In 1869, the British jurist Lord Chief Justice Alexander Cockburn summed up English law as:
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.
American courts affirmed jus soli before the Civil War, as attorney Alexandra M. Wyatt wrote for the Congressional Research Service in 2015. She mentions several cases, such as the 1824 Supreme Court case of M’Creery’s Lessee v. Somerville, where the court proceeded on the assumption that three girls born in the United States were citizens even though their father was an Irish citizen who never naturalized. In the 1844 case of Lynch v. Clarke, a New York court held that Julia Lynch, who was born to Irish nonimmigrant sojourners in New York, was a US citizen. The most relevant quote from Lynch v. Clarke was this:
I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.
That standard was then codified in the first sentence of Section 1 of the Fourteenth Amendment to the Constitution, also known as the citizenship clause, which reads:
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.
The only exceptions are those who are not under the jurisdiction of the US government, such as the children of diplomats, who are not under the direct power of the American government. Many online commentators point to a quotation by Senator Jacob Howard, who introduced the Fourteenth Amendment and defended it, to argue that the amendment wasn’t intended to create birthright citizenship. During one debate, Howard said:
This amendment which I have offered, is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
Howard’s first sentence is just an affirmation of the old English common law rule of jus soli that the United States inherited from Great Britain and that was earlier enforced by US courts, except for slaves and American Indians. But the second sentence is being misread online by people who support revoking birthright citizenship. The phrase, “This [the citizenship clause of the Fourteenth Amendment] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers,” is being interpreted by some to mean that the three groups—foreigners, aliens, and those who belong to the families of ambassadors—are not children.
Wait a second, did you notice the difference between my summary and the original quotation? I inserted the word “and,” while Howard did not. That’s because Howard was describing the families of ambassadors as being foreigners and aliens. Howard did not list three distinct groups of people who were not under the jurisdiction of the US government; he described one group: ambassadors and their US-born children.
The 1898 Supreme Court decision of United States v. Wong Kim Ark established that the US-born children of immigrants were and remained citizens even if there were changes in law that would not have allowed them or their parents to legally immigrate here or naturalize. The Court held that a person born in the United States to Chinese parents who had traveled to China in his early 20s was a citizen of the United States and could not be denied reentry to the United States by the Chinese Exclusion Act. Combined with the earlier English common law, its application to the United States before the Civil War, and its codification in the Fourteenth Amendment to correct the Dred Scott v. Sandford decision that repudiated centuries of English and American law, it’s clear that the children born on US soil to nonimmigrants on worker or student visas, illegal immigrants, or mere travelers are US citizens.
Many lawyers, attorneys, and scholars will recount the above legal debate far better than I have. There are other issues that should be addressed if birthright citizenship is to no longer be the law of the land.
To start, there are practical problems. There is no central registry of American citizens; native-born Americans show their birth certificates as evidence of citizenship. Everybody born here who registers their birth is granted a certificate in our decentralized system. Naturalized immigrants simply show their naturalization documents. When either receives a passport, they use it to show citizenship. Trump’s order is prospective for those born to some noncitizen migrants, but if the courts uphold it, then he will issue future executive orders to broaden its scope—possibly to people who are already adults. At a minimum, any broadening will cause mass administrative chaos and uncertainty. Even if the executive order is not broadened, the chaos will still spread with births. If birth certificates are not good enough anymore, then we’d have to rely on proving that our parents were citizens or had another immigration status that allows their US-born children to be citizens. Can you do that?
There’s already an American law for inheriting citizenship referred to as jus sanguinis. It is intended for children born to US-citizen parents overseas, but it can be quite cumbersome. It’s certainly more complicated than showing a birth certificate that says you were born in the United States. The elimination of birthright citizenship could eventually place every single person in America in the precarious position of having to prove American citizenship via descent to justify their own citizenship or that of their children.
Creating a national registry of citizens would avoid some of the confusion described above. Of course, that would add another layer of complex determinations of citizenship at birth at potentially many thousands of locations by either immigration law experts or bureaucrats. This would be a managerial nightmare and not quite the destruction of the administrative state that we were all promised by the Trump administration. Then what happens to the share of children born here who are stateless, the people born in the United States who are ineligible for American citizenship and don’t have it from their parents’ home countries?
The practical administrative effects are bad, but the broader impact of revoking or constraining birthright citizenship on assimilation is worse. At a minimum, about 7 percent or so of those born on US soil each year would not be US citizens if birthright citizenship were revoked along the lines of the Trump executive order. That condition would worsen the assimilation of the children of immigrants and their descendants in the United States. After all, the children born here who aren’t citizens wouldn’t pass citizenship on to their US-born children if they married other noncitizens. It’s easy to see how that would produce worse outcomes—just look at Europe.
The German Citizenship and Nationality Law of 1913 only granted citizenship to those with at least one parent who was a German citizen at the time of the child’s birth, a fairly extreme version of jus sanguinis. Those citizenship laws created an assimilation crisis after World War II when post-war guest worker programs admitted many Turks, Tunisians, and Portuguese to work in the booming economy. Many of these workers stayed and had children who weren’t automatically citizens.
Among other causes, a lack of citizenship led to resentment among generations with only partial allegiance to the country of their birth. German-born noncitizens formed “parallel societies” and were more prone to crime and political radicalism than German-born German citizens. Germany provides the best opportunity to study the effects of birthright citizenship on assimilation. In 1999, the German parliament amended that law to create a birthright citizenship component for children born on or after January 1, 2000, if at least one parent had been ordinarily residing in the country for at least eight years. The law also created a transition period for many children born from 1990 through 2000 to be naturalized if they met the requirements of the new law.
This change in German citizenship law prompted a flood of research on how the new law affected immigrant assimilation in Germany, as I have written about. Economists Ciro Avitabile, Irma Clots-Figuera, and Paolo Masella looked at how the new German law affected parental integration in a peer-reviewed paper published in the prestigious Journal of Law and Economics. Their paper uses responses from the German Socio-Economic Panel survey to see how immigrants whose children were affected by the new citizenship law changed their behavior relative to those unaffected. The paper focuses on measurements of these immigrants interacting with Germans (visiting or being visited by a German in a social situation), speaking German, and reading German newspapers. On all three metrics, the immigrant parents of children who could be naturalized became more integrated.
The effects were small but noticeable. The percentage of immigrant parents who had interactions with Germans rose from 71 percent before the reform to 77 percent afterward; the ability to speak German rose from 65 percent before the reform to 69 percent afterward; and reading of German newspapers increased from 2.6 to 2.9 on a five-point scale (1 is home country papers only, and 5 is German papers only). Importantly, the measure of speaking German doesn’t control for fluency. They also found that the outcomes are larger for immigrants who came from a country that speaks an Indo-European language. Importantly, Turkish is not an Indo-European language. For those from a non-Indo-European language group, the reform had no effect on language acquisition, but it increased their interactions with Germans to the same degree as those of Indo-European language speakers.
Taking a wider view of the impact of this law in Germany, Avitabile, Clots-Figuera, and Masella, the same economists mentioned above, published a peer-reviewed paper in the American Economic Journal: Applied Economics that looks at how child citizenship laws affected fertility decisions among immigrants. Fertility is partly (but not entirely) influenced by culture, so many social scientists and economists think it is an important indicator of immigrant assimilation. Consistent with Gary Becker’s quality-quantity model of fertility, they found that birthright citizenship reduced immigrant fertility and improved their health by cutting obesity and improving the social-emotional outcomes of the affected children. Again, the effects are small, but the citizenship reform moved immigrants closer to German fertility and health norms.
Researchers Nicolas Keller, Christina Gathmann, and Ole Monscheuer also examined how fertility and family structure change under the altered citizenship laws. They found that within 7.2 years of eligibility for citizenship, the immigrant-native fertility gap fell by 20 percent by raising the age of first births to immigrant mothers and reducing the likelihood of them having children. The citizenship reform also narrowed the marriage gap between German and immigrant women by 45 percent and German and immigrant men by 50 percent. Immigrant women were also more likely to marry men who were not from their own country of origin after the reform, but the effect was small.
Christina Felfe, Helmut Rainer, and Judith Saurer found that immigrant parents enrolled their children in preschool at a higher rate after the citizenship reform, closing the gap with native Germans. They also enrolled them earlier in primary school and pushed their children into the university track at higher relative rates. Furthermore, reported “attention deficits” and “emotional problems” for the children of immigrants also decreased in schools relative to natives, while there was no effect on reported “social problems,” “German language proficiency,” or “school readiness.” Another paper by Felfe, Rainer, Saurer, and Martin Kocher found that the educational achievement gap between young immigrant men and their native male peers nearly closed due to the reform and that immigrant boys became more trusting. The latter effect virtually eliminated in-group favoritism for immigrant boys. The granting of citizenship to immigrant children also reduced return migration and increased the rate at which mothers who stay at home with their children were counted among the parents whose children were affected.
The revocation of birthright citizenship not only goes against almost 420 years of legal precedent but also will raise practical difficulties for native-born Americans regardless of their parentage. Furthermore, revoking birthright citizenship will likely worsen assimilation outcomes for the children of immigrants who aren’t born citizens. Perhaps those added problems are worth it in exchange for large benefits, but proponents of revoking birthright citizenship can’t point to any of those. With the law, tradition, common sense, reason, and empirical evidence on the side of maintaining birthright citizenship, we can only hope that the courts maintain our exceptional system in its current form.