Consider a baby breathing her first in a Texas hospital. Her parents entered the country illegally. They arrived in pursuit of something that was more safety, labor, a future. It was not that baby who made a choice of where to be born. But that one fact the place of her birth will make her whole life. That is what birthright citizenship entails.
It is a rule which sounds easy to hear, that, born here, you are here. However, behind that innocent conception is one of the most controversial issues in American law, politics, and identity. It raises the issues of justice, national identity, immigration, and the very definition of being a citizen. With no noise, and tell us all of it, straightforward and without guile.
Quick Summary Box
| Topic | Birthright Citizenship |
| Definition | The legal right to citizenship granted to a person simply by being born in a country |
| Legal Basis (USA) | 14th Amendment of the U.S. Constitution (1868) |
| Legal Term | Jus Soli (Latin: “right of the soil”) |
| Who It Affects | Children born on U.S. soil, including to immigrant parents |
| Current Status | Active law in the U.S., but subject to ongoing political debate |
| Related Concepts | Jus Sanguinis, naturalization, anchor babies, dual citizenship |
| Key Question | Should children born in the U.S. automatically become citizens? |
What Is Birthright Citizenship, Really?
Birthright citizenship is the automatic acquisition of a citizenship to any individual born on the territory of a country irrespective of the nationality or immigration status of the parents.
This is a right granted under the 14 th Amendment to the United States Constitution in 1868. The appropriate provision is:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The bulk of the weight here is in four words: born in the United States. That’s it. The hospital. The soil. The location. It is what makes you a citizen not the documents of your parents, or their country of birth, or their legal status.
This is called in law, jus soli, which translates to right of the soil (a Latin phrase). It is the reverse of jus sanguinis “right of blood” that gives citizenship on the basis of the nationality of the parents, but not the birthplace.
A Little History: Where Did This Come From?
The 14th Amendment was not developed to solve immigration problems. It was authored after a civil war, to redress an atrocious and grotesque injustice: that black Americans, even those born on the American soil, were not citizens.
The 1857 Dred Scott v Sandford ruling by the Supreme Court had proclaimed to the black people that they would never be citizens regardless of their place of birth or free or slave. That was reversed by the 14 th Amendment permanently. It was a statement about human dignity. Something to do with being born in America.
Over the years, it became the legal foundation of citizenship of millions not only the descendants of the slaves but also the children of immigrants, refugees, migrant workers and any other individual that might have been born on the U.S. soil.
How this law Works in the U.S.
Here’s the practical side of things, step by step.
Who qualifies?
- A child born on U.S. soil (including U.S. territories like Puerto Rico and Guam)
- Even if both parents are undocumented immigrants
- Even if both parents are here on temporary visas (student, tourist, work visas)
- Even if the parents have no legal immigration status at all
Who does NOT qualify?
- Children born to foreign diplomats (they are not considered “subject to the jurisdiction” of the U.S.)
- Children born to enemy soldiers occupying U.S. territory
- Children born on foreign soil to U.S. citizen parents (they may still get citizenship through jus sanguinis, but not through birthright)
What does it mean practically?
A child born in the U.S. receives a U.S. birth certificate. They can apply for a U.S. passport. They have full constitutional rights. They can vote at 18. They can run for Congress. They can sponsor family members for immigration once they turn 21.
The Political Storm Around Birthright Citizenship
Few immigration topics generate as much heat as this one.
Those who support it argue that:
- It’s a constitutional right, not a policy preference changing it would require a constitutional amendment
- It reflects American values of openness and opportunity
- Stripping citizenship rights based on parentage could create stateless children people with no country at all
- Children shouldn’t be punished for decisions made before they were born
Those who oppose it argue that:
- It incentivizes illegal immigration (critics use the term “birth tourism”)
- The 14th Amendment was never intended to cover undocumented immigrants
- The phrase “subject to the jurisdiction thereof” leaves room for interpretation
- Other countries have ended it without constitutional crises
Birth Tourism What Is It?
This is traveling to a U.S. just to give birth, hence the child would be entitled to U.S. citizenship. It is not only legal, it is controversial. In certain countries especially in Asia and Eastern Europe, there are complete agencies that assist affluent families in planning birth trips to America.
This is perceived by critics as system gaming. The proponents indicate that the figures are not very high and that the law is the law.
The “Anchor Baby” Debate
You might have heard this word. It is defined as children born in the U.S., whose parents have been undocumented, and the implication is that the child anchors the family to prevent deportation.
The fact of the matter is more complex. A child who was born in the U.S. is not able to sponsor parents to live in the country legally until he/she is 21. The long process, even at the time, is uncertain and requires the parent to confess to immigration violations in the past. The concept of an easy anchor is more of a political slogan, rather than a legal definition.
What Other Countries Do: A Global Picture
The U.S. and Canada are among the very few, well-developed countries that continue to employ unconditional birthright citizenship.
Jus soli has been reduced in many countries which formerly possessed it:
- United Kingdom: In 1983, United Kingdom abolished unconditional birthright citizenship. At least one of the parents now must be a citizen or settled resident.
- Australia: A change in law was made in Australia in 1986 to demand that at least one of the parents be a citizen or a permanent resident.
- India: Abolished birthright citizenship in 1987 due to anxiety over Bangladesh immigration.
- Germany: jus sanguinis, with certain exceptions in the case of children of long-term legal residents.
- France: This is a modified system with children born in France who have foreign parents obtaining citizenship at age 18 provided they have been living there a minimum of 5 years.
Jus soli is still practiced in most of the countries in the Americas such as Mexico, Brazil and Argentina.
Could Birthright Citizenship Be Ended in the U.S.?
This question comes up every election cycle. The honest answer is: it’s complicated, but changing it would be very hard.
Option 1: Constitutional Amendment
The 14th Amendment would require a two-thirds majority in the House and Senate followed by a three-fourths majority of all the states to alter it. That’s 38 states. This is highly improbable in the short run, given the level of division in the country regarding this matter.
Option 2: Executive Order
Other politicians have stated that an executive order by a president could redefine subject to the jurisdiction thereof and thus, the children of undocumented immigrants would not automatically receive citizenship. This would be the most contentious issue regarding whether it would be constitutional based on the legal experts.
Option 3: Legislation
Congress may enact a law that redefines the eligibility to citizenship. However, this would most definitely be challenged by the Supreme Court right away. It remains a legal question whether it would emerge out of those challenges.
Option 4: Supreme Court Ruling
The Supreme Court has never explicitly declared whether or not citizenship applies to the children of illegal immigrants. In the case of children of the legal immigrant, the 1898 case of United States v. Wong Kim Ark affirmed the same. Yet the question of the undocumented immigrants is still a technical one.
People Also Ask: Honest Answers to Common Questions
Is birthright citizenship in the Constitution?
Yes. It’s in the 14th Amendment, ratified in 1868. The relevant section states that all persons born in the United States and “subject to the jurisdiction thereof” are citizens. This has been the law for over 150 years.
Can birthright citizenship be taken away?
Not easily. Removing it would most likely require a constitutional amendment, which is an extremely high bar. Some argue an executive order or legislation could reinterpret the amendment, but that would face serious legal challenges.
Do other countries have birthright citizenship?
About 30 countries in the world still practice unconditional birthright citizenship, mostly in North and South America. Most European and Asian countries have moved away from it.
What happens if a child born in the U.S. has undocumented parents?
The child is a U.S. citizen. The parents are not. The parents can still be deported, and the child faces a heartbreaking choice stay in the U.S. separated from parents, or leave their own country. This is one of the most painful aspects of current immigration policy.
What is birth tourism and is it illegal?
Birth tourism traveling to the U.S. to give birth is not illegal. The child receives U.S. citizenship. However, obtaining a visa with the undisclosed intent of giving birth may violate visa terms, which can lead to visa denial in the future.
A Warm Note to Close
The concept of birthright citizenship is not just a legal one. It is a matter of who we are as a society and what we think of human belonging.
It will be debated in the courtrooms, the Capitol Hill, and even in kitchen-table discussions across the nation. And there are really other, sensible opinions concerning whether the current policy is the correct one or not.
However you stand on the debate-whichever it be, it is always worth remembering that there is a child at the heart of any legal argument. The one who did not write the laws, did not choose his parents, did not decide where to be born was a child.
Such children need to have their stories narrated fairly, sympathetically and exhaustively. Hopefully, this article did so.
FAQs
Q: Is birthright citizenship the same as naturalization?
No. Birthright citizenship is automatic you’re born a citizen. Naturalization is the process by which a legal immigrant who was not born a citizen applies to become one, typically after several years of legal residency.
Q: Can a birthright citizen lose their citizenship?
U.S. citizens including those born on U.S. soil can renounce their citizenship voluntarily. But they generally cannot have it taken away involuntarily. The Supreme Court has placed strict limits on “denationalization.”
Q: What is a birthright citizenship executive order?
This refers to proposals by certain politicians to use an executive order to limit birthright citizenship for children of undocumented or temporary-visa parents.
Q: Does Canada have birthright citizenship?
Yes. Canada has one of the world’s most well-known birthright citizenship policies. Any child born on Canadian soil is automatically a Canadian citizen, with very limited exceptions.
Q: If a child is born in the U.S. but the parents leave, can the child return later?
Yes. A U.S. citizen even one who grew up abroad retains their citizenship. They can return, get a passport, and live in the U.S. at any point.
