A new debate concerning immigration has arisen in recent months.  The debate concerns so-called “Birthright Citizenship” – the general policy of granting US citizenship to every person born on U.S. soil.  The policy is rooted in the 14th Amendment to the U.S. Constitution, which was adopted after the Civil War to ensure citizenship for former slaves born on U.S. soil.  The language from the 14th Amendment that is under debate reads as follows:

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.

This language has generally be interpreted to mean that anyone born in the U.S. is a U.S. citizen, regardless of why or how that child came to be born in the U.S.  Some argue that the drafters of the 14th Amendment never intended for the Amendment to apply to the children of foreigners present in the U.S., but was meant only to grant citizenship to African-Americans. There is historical evidence that the drafters of the 14th Amendment intended to exclude certain “accidental” births in the U.S. from granting citizenship automatically.  For example, a child born to French diplomats living in the U.S. would be a French citizen, not an American.  There is a certain logic to the argument that the son or daughter of the French ambassador to the U.S. would be French, not American, regardless of where the child was born.

The debate has become highly politicized as the debate over federal and state immigration policies have heated in recent months.  Fueling the debate is a growing industry called “birth tourism,” by which private companies arrange a U.S. visa for a pregnant mother from a foreign country, so that the child is born in the United States and thereby granted U.S. citizenship with full rights of citizenship.

Calls for changes to the 14th Amendment have grown louder and Congressional hearings are bringing the issue to national attendance.  Passing a constitutional amendment would require a two-thirds “aye” vote in the House and Senate and approval of the legislatures of three-quarters of the 50 states.  It is unlikely that would happen in today’s highly charged political environment. So, the chances are greater that a court challenge to the Birthright Citizenship policy may be sought as a way to reverse the policy.

Bills to deny citizenship to the children of parents in the U.S. illegally have been introduced in Congress on a regular basis for years, but none have gained any political traction.  Tension over Birthright Citizenship is growing and may become a campaign issue during the mid-term elections.

Some proponents of changing U.S. citizenship policies argue that the problem is not children born in the U.S. but the companies that foster, promote and organize “birth tourism.”  It is possible that laws designed to stop “birth tourism,” as opposed to “birthright citizenship,” itself will be introduced in Congress.


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