Protecting Minorities from De Facto Statelessness: Birthright Citizenship in the United States

Abstract

Birthright citizenship is the subject of intense political debate in the United States because of its connection to the debate over unauthorised immigration and the inclusion of national minorities. Similar debates have taken place in other common law countries, leading to the restriction of jus soli birthright citizenship in the United Kingdom, Australia, New Zealand and Ireland. The Supreme Court of the United States and United States Department of State’s interpretation of the Citizenship Clause in § 1 of the Fourteenth Amendment ensures that all ‘persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States’, including the children of unauthorised immigrants. This article argues that the rule of jus soli birthright citizenship in the United States is rooted in an older understanding of the birthright of native-born British subjects, and later, American citizens, to enjoy the birthright of protections and an ever-expanding set of rights based on where they were born, regardless of the status of their parents. Stated in a way that included the children of slaves and immigrants as citizens based on their birthplace alone, jus soli birthright citizenship in the United States remains a powerful tool of inclusion for marginalised minority groups.