What is birthright citizenship, and why has it been in the news lately? Birthright citizenship is a Constitutional principle stating that any person born in the United States is a citizen, regardless of the immigration status of that person’s parents.
The concept became a hot topic in the recent presidential election for two reasons. First, as part of President Trump’s attack on noncitizens, he and his administration threatened it would attempt to eliminate birthright citizenship in Trump’s second term. Second, the far – right has ignorantly argued that Vice President – Elect Kamala Harris cannot serve because she would be excluded from becoming President, should President – Elect Biden be unable to serve, because she was born to immigrants. Harris was born in California and thus has birthright citizenship.
Constitution Grants Right
The Fourteenth Amendment to the United States Constitution confirms birthright citizenship as the law of the land. The Amendment 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.”
Adopted by Congress in 1868, the Fourteenth Amendment was one of the Reconstruction Amendments passed in the Civil Rights Act of 1866 to benefit former slaves after the Civil War. Congress passed the Civil Rights Act to extend citizenship to freed slaves. That Act was the first mention in the U.S. of the principle of birthright citizenship: “All persons born in the United States, and not subject to any foreign power…are hereby declared to be citizens of the United States.”
The concept of birthright citizenship also dates back to the English common law concept of jus soli – the country of birth determines citizenship.
Upheld by Supreme Court
Although birthright citizenship has been challenged through the years, the U.S. Supreme Court has defended the principle against attack. The most notable case is from 1898, United States v. Wong Kim Ark. In that case, Ark was the US-born child of Chinese nationals living in the United States. At the time, federal law prohibited Chinese immigrants from becoming American citizens. Ark’s birthright citizenship was called into question when he returned to San Francisco from a trip abroad and attempted to enter the United States. The Supreme Court ruled that under the Fourteenth Amendment’s citizenship clause, Ark was a U.S. citizen based on his birth in the U.S.
Today children born in the U.S. do not face the same issue because birthright citizenship is firmly entrenched and counties issue birth certificates to every child born in the U.S., regardless of their parents’ nationality or immigration status.
Birthright Citizenship Questioned
Still, though, birthright citizenship continues to be questioned by those looking for ways to punish undocumented immigrants. It is one thing to question how the government deals with undocumented immigrants. It is quite another, though, to advocate punishing innocent children born and raised in the U.S. as Americans.
DO YOU HAVE QUESTIONS ABOUT BIRTHRIGHT CITIZENSHIP? CONTACT ANTONINI & COHEN WITH ALL YOUR IMMIGRATION QUESTIONS. WE ARE HERE TO HELP.
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Marshall Cohen is one of the founding principals of Antonini & Cohen. Admitted to the Georgia Bar in 1989, he has practiced immigration law exclusively for over 30 years. Mr. Cohen practices all areas of immigration law including family and employment cases, temporary and permanent visas, naturalization, deportation defense, and federal litigation.