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Birthright Citizenship in the United States: A Global Comparison

By Jon Feere, Legal Policy Analyst at the Center for Immigration Studies.
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“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.” -- U.S. Const. amend. XIV, § 1

Introduction

Every year, 300,000 to 400,000 children are born to illegal immigrants in the United States. Despite the foreign citizenship and illegal status of the parent, the executive branch of the U.S. government automatically recognizes these children as U.S. citizens upon birth. The same is true of children born to tourists and other aliens who are present in the United States in a legal but temporary status. Since large-scale tourism and mass illegal immigration are relatively recent phenomena, it is unclear for how long the U.S. government has followed this practice of automatic “birthright citizenship” without regard to the duration or legality of the mother’s presence.

Eminent legal scholars and jurists, including Professor Peter Schuck of Yale Law School and U.S. Court of Appeals Judge Richard Posner, have questioned whether the 14th Amendment should be read to mandate such a permissive citizenship policy. Nevertheless, the practice has become the de facto law of the land without any input from Congress or the American public.

Advocates of maintaining this citizenship policy argue that the plain language of the Citizenship Clause of the 14th Amendment protects automatic birthright citizenship for all children born to illegal and temporary aliens. However, several legal scholars and political scientists who have delved into the history of the 14th Amendment have concluded that “subject to the jurisdiction thereof” has no plain meaning and that the executive branch’s current, broad application of the Citizenship Clause may not be warranted.

The overwhelming majority of the world’s countries do not offer automatic citizenship to everyone born within their borders. Over the past few decades, many countries that once did so — including Australia, Ireland, India, New Zealand, the United Kingdom, Malta, and the Dominican Republic — have repealed those policies. Other countries are considering changes.

In the United States, both Democrats and Republicans have introduced legislation aimed at narrowing the application of the Citizenship Clause. In 1993, Sen. Harry Reid (D-Nev.) introduced legislation what would limit birthright citizenship to the children of U.S. citizens and legally resident aliens, and similar bills have been introduced by other legislators in every Congress since. The current Congress saw the introduction by Rep. Nathan Deal (R-Ga.) of the “Birthright Citizenship Act of 2009,” which so far has gathered nearly 100 sponsors.

This Backgrounder briefly explains some policy concerns that result from an expansive application of the Citizenship Clause, highlights recent legislative efforts to change the policy, provides a historical overview of the development of the 14th Amendment’s Citizenship Clause, and includes a discussion of how other countries approach birthright citizenship. The paper concludes that Congress should clarify the scope of the Citizenship Clause and promote a serious discussion on whether the United States should automatically confer the benefits and burdens of U.S. citizenship on the children of aliens whose presence is temporary or illegal.

Among the findings:

•Only 30 of the world’s 194 countries grant automatic citizenship to children born to illegal aliens.

•Of advanced economies, Canada and the United States are the only countries that grant automatic citizenship to children born to illegal aliens.

•No European country grants automatic citizenship to children of illegal aliens.

•The global trend is moving away from automatic birthright citizenship as many countries that once had such policies have ended them in recent decades.

•14th Amendment history seems to indicate that the Citizenship Clause was never intended to benefit illegal aliens nor legal foreign visitors temporarily present in the United States.

•The U.S. Supreme Court has held that the U.S.-born children of permanent resident aliens are covered by the Citizenship Clause, but the Court has never decided whether the same rule applies to the children of aliens whose presence in the United States is temporary or illegal.

•Some eminent scholars and jurists have concluded that it is within the power of Congress to define the scope of the Citizenship Clause through legislation and that birthright citizenship for the children of temporary visitors and illegal aliens could likely be abolished by statute without amending the Constitution.

The international findings in this report are the result of direct communication with foreign government officials and analysis of relevant foreign law. It is the most current research on global birthright citizenship data.

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