The Question of Birthright Citizenship

Peter H. Schuck and Rogers M. Smith

I f a n u nau t hor i z ed a lie n gives birth to a child on American

soil, is the child automatically a United States citizen? Americans have
long assumed that the answer is yes — that the child is a birthright citizen
regardless of the parent’s legal status, and that such citizenship is required
and guaranteed by the Constitution. But a closer examination of the
matter suggests that this answer is actually incorrect, and that birthright
citizenship for the children of immigrants here illegally is better under-
stood as a matter for Congress and the American people to resolve.
We first took up this question more than three decades ago in a book,
Citizenship Without Consent: Illegal Aliens in the American Polity, pub-
lished in 1985 by Yale University Press. Significant political and legal
developments have occurred since then, but none alters our core con-
clusion: Under the best reading of the Citizenship Clause of the 14th
Amendment, the citizenship status of the American-born children of
illegal immigrants is not mandated by the Constitution. Rather, this
clause empowers Congress to decide the matter in its policy discretion
(so long as it does not violate other constitutional rights), thereby giving
specific content to the principle of popular consent — perhaps the fun-
damental principle of American democracy — that the clause adopted.
How Congress should exercise this discretion is a separate and more
difficult policy question, especially for scholars like us who strongly
favor even more legal immigration than the U.S. now accepts, and a

P et e r H. Sc h u c k is the Simeon E. Baldwin Professor of Law Emeritus at Yale University.

He is the author, most recently, of One Nation Undecided: Clear Thinking about Five
Hard Issues That Divide Us.
Ro g e r s M . S m i t h is the Christopher H. Browne Distinguished Professor of Political
Science and Associate Dean for Social Sciences at the University of Pennsylvania. He is also
the President-Elect of the American Political Science Association.

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C o py r i g ht 2 018 . A ll r i g ht s r e s e r ve d. S e e w w w. N at i o nal A f f ai r s.c o m fo r m o r e info r m at i o n.

 Schuck and Smith · The Question of Birthright Citizenship

generous amnesty for those now here illegally. And it may well become
a pressing political question. Donald Trump pronounced as a presiden-
tial candidate in 2016 that he objected to birthright citizenship for these
children. He has so far declined to take up the issue as president, but
that could easily change — and the broader effect of his presidency on
the national debate over immigration could move birthright citizenship
to a more prominent place on the Republican agenda.
It is worth understanding, then, why birthright citizenship is a legiti-
mate political and policy question, and a hard one.

T he Const i t u t iona l Con t e x t

The original Constitution was silent about immigration and the qualifi-
cations for citizenship, other than a provision empowering Congress to
regulate naturalization. The first mention of national citizenship in the
document came in 1868 with the ratification of the 14th Amendment. Its
first section — the Citizenship Clause — 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.” The
precise meaning of the phrase that we have italicized — “and subject to the
jurisdiction thereof” — is at the heart of the debate over whether the U.S.-
born children of illegal aliens are automatic birthright citizens.
The intention of the 14th Amendment’s framers or ratifiers specifically
regarding the children of foreigners present in America in violation of
U.S. laws is essentially impossible to discern. No framer or ratifier men-
tioned that topic, so no specific intent is there to be found. Birthright
citizenship originated in feudal doctrines of perpetual allegiance that
the American revolutionaries rejected in favor of a consensual view that,
as the Declaration of Independence put it, governments derive “their just
powers from the consent of the governed,” and that people are entitled,
and perhaps duty-bound, to withdraw their consent from unjust govern-
ments. The best way to make sense of the 14th Amendment’s Citizenship
Clause, therefore, is to attend both to constitutional history (that is, what
its framers sought to accomplish by it) and to constitutional theory, or
how to make the clause fit most comfortably with general principles
of American republicanism, including commitments to popular self-
governance, civil solidarity, and inalienable human rights.
In a vivid instantiation of the perennial tension among those com-
mitments — the problem of tyranny of the majority — Chief Justice
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Roger Taney in the 1857 Dred Scott decision had turned these consensual
premises into an insistence that African-Americans could not be citizens
of the United States. He thought they were neither parties to the original
social contract that created the Constitution nor eligible for naturaliza-
tion under the nation’s laws. The Citizenship Clause’s chief aim was to
overturn Dred Scott and guarantee citizenship to all persons of African
descent born on U.S. soil or naturalized here. But its guarantee of birth-
right citizenship to the U.S.-born was not fully universal, because the
clause contained an opaque qualifying phrase: “and subject to the ju-
risdiction thereof.” The most important and under-studied question in
regard to the Citizenship Clause is the meaning of this phrase — then
and now — given the framers’ and ratifiers’ intentions.
As we elaborated in our book, the context of 1868 is key to interpret-
ing that phrase. The United States did not restrict immigration at that
time, but did exclude several groups born on soil governed by the U.S.
from birthright citizenship. Plainly, the phrase “subject to the jurisdic-
tion” was meant to leave Congress with the power to regulate access to
birthright citizenship for groups to whose presence or membership it
did not consent.
So what does “subject to the jurisdiction” mean? This inquiry must
focus on the clause’s treatment of Native Americans born into tribes.
Everyone agrees that “subject to the jurisdiction” was intended to exclude
the children of foreign diplomats, occupying enemy armies, and children
born to foreigners while on foreign vessels in U.S. waters — even though
they are then literally subject to our jurisdiction. Everyone also agrees
that the 14th Amendment’s framers intended to exclude tribal Native
Americans. (The Supreme Court would so hold in 1884, and Congress
chose to confer statutory citizenship on them in 1924.)
These exclusions from automatic citizenship at birth reflected the
general principle animating the phrase “subject to the jurisdiction”: the
mutual consent between the parents and the U.S. government to their
legal presence on U.S. soil as immigrants owing allegiance to the United
States. Native Americans in tribes fit that description of the excluded;
they were “domestic dependent nations,” as Chief Justice John Marshall
famously put it decades earlier, who did not profess or owe full alle-
giance to our government.
Some critics of our 1985 book, such as law professor Garrett Epps, ar-
gue that during the debates over the amendment, the term “allegiance”
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was deliberately discarded in favor of “jurisdiction,” and that “juris-

diction” meant simply “actual subjection to the lawmaking power
of the state,” or more particularly, being subject to court trials. They
also contend that persons born into tribes on America’s frontiers were
generally not subject to American legislative or judicial power — un-
like unauthorized aliens today. Some critics have also maintained that
the abolitionist framers of the 14th Amendment did not include Native
Americans born into tribes in the clause’s coverage because they wished
to bolster recognition of tribal autonomy, rather than to impose pre-
sumably unwanted American citizenship and governance upon them.
Chief Justice Marshall argued similarly in his famous 1832 opinion
in Worcester v. Georgia, where he suggested that the native tribes had
become “dependent” allies to receive American protection, “without
involving a surrender of their national character.” To Marshall, it was
self-evident that the maintenance of this now-dependent national sta-
tus was inconsistent with the tribes holding U.S. citizenship under the
original Constitution.
Some supporters of the 14th Amendment focused on the reality that
American courts could not and did not routinely hold trials for offenses
committed by tribal members living on reservations; as just noted, some
framers wanted the U.S. to recognize substantial tribal sovereignty, con-
sistent with Marshall’s formulation. But these two arguments by critics
regarding the meaning of “jurisdiction” are different: While one stresses
the lack of actual U.S. power to govern tribal populations, the other
stresses the lack of legitimate U.S. power to govern them.
And both arguments are historically vulnerable. By 1868, federal
judges, lawmakers, and executive officials had already held that the U.S.
could legislate over all the tribes directly, a power that Congress began
to exercise on a regular basis with the Indian Appropriation Act of 1871.
Tribe members were also subjected to federal trials under some circum-
stances even earlier, by the 1850s. But the pivotal point here is this: To
insist that the Citizenship Clause treats these two groups differently,
bestowing citizenship on children of unauthorized aliens but not on
children of Native Americans in tribes, is to say that the children of
unauthorized aliens, unlike children born into tribes, are born fully
subject to the actual and legitimate jurisdiction and power of the U.S.
government — even though their very presence effectively denies the
government’s actual power and authority.
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We see no basis for this distinction. The fact that some of the clause’s
supporters thought that the government could not and should not con-
fer citizenship on the native tribes in no way implies that they would
have wanted to confer automatic citizenship on the children of those
present in the U.S. in violation of American law. Indeed, if anything, it
implies the opposite. Rather, their treatment of tribal Native Americans
suggests their determination to make mutual consent to full member-
ship the sine qua non for constitutionally mandated citizenship.
The Supreme Court has focused on the meaning of “subject to the
jurisdiction” in the clause only twice, and both decisions support our
argument. In Elk v. Wilkins (1884), the Court held that a tribal member
born on a reservation who then moved to live “among the white citizens
of a state” was not a birthright citizen because he was born within the
tribe. And in another case, U.S. v. Wong Kim Ark (1898), the government
authorized the parents’ presence by granting them (through a treaty)
full legal-resident status, so their U.S.-born child was deemed a birth-
right citizen.

Birt hr igh t Ci t izenship i n T heory a nd Pr ac t ice

In thinking about what the Citizenship Clause’s “subject to the juris-
diction” proviso was intended to mean, recall the obvious fact that the
category of immigrant parents here in violation of U.S. law simply did not
exist at the time. Federal regulation of immigration (other than a ban on
the international slave trade, foreshadowed in the original Constitution)
did not begin until 1875. Some states had enacted public-health require-
ments for immigrants, but Congress did not enact significant bans,
especially limited quotas, until well into the 20th century.
Even so, birthright citizenship did become an issue in the late-19th
century when organized political opposition to Chinese immigration
became widespread. Movements advocating constitutional amend-
ments to end birthright citizenship for the children of illegal aliens (and
sometimes even of immigrant parents with legal status) arose in the
1920s and periodically ever since. As law professor Rachel Rosenbloom
notes, these advocates used “highly racialized language of crisis and in-
vasion,” and sadly, some still do so today.
Still, the fact that many opponents of birthright citizenship for the
children of unauthorized parents harbor anti-immigrant views does not
mean that their bottom-line position is wrong; only their animus is.
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Both of us have repeatedly celebrated (and even participated in) the

civil-rights movement’s triumphs over legally protected racial inequality
as among the greatest and most inspiring developments in American
history, and we would never knowingly give any aid or comfort to pro-
ponents of racism or race-based restrictionism. Our writings have also
celebrated the paradigm-shifting 1965 immigration law and promoted
even more legal immigration, in opposition to restrictionists. But our
opposition to the threats that racists and restrictionists have always
posed to immigration does not bear on, much less contradict, the fram-
ers’ firm commitment to democratic self-governance in defining the
boundaries of our national political community.
In order to find the best answer to the question of whether the clause
mandates birthright citizenship for children of unauthorized aliens,
many scholars have sought to gain additional guidance, as we have, from
the larger political and moral theories and commitments embodied in
American constitutionalism. We recognize that American constitution-
alism, at its most general level, includes often-conflicting commitments
to three goals: consent-based democratic self-government, social solidar-
ity, and individual rights. Americans sometimes seek to reconcile these
three commitments by prioritizing fundamental rights. But this only
points to the question of whether birthright citizenship for this group
is indeed a fundamental right.
Broadly speaking, when the Constitution itself does not answer impor-
tant questions with clarity, decision-making should usually be left to the
people’s elected representatives in Congress, so long as they do not violate
fundamental rights. This properly leaves Congress with the authority to
decide the question of birthright citizenship for these children. Does the
Citizenship Clause constitute this consent to their birthright citizenship?
Again, no one at the time even raised the question, for a single reason: The
group did not then exist. Should Congress’s failure to alter the status quo
by statute or by constitutional amendment support an inference that the
American people have consented to this status quo?
This congressional inaction might have some bearing on the public
debate over the political and policy issues raised by our interpretation
of the Citizenship Clause. The two of us differ, however, about how this
inaction should affect the interpretation of whether the clause’s consen-
sual requirements have been met. Given that bills to repeal birthright
citizenship for the children of unauthorized aliens have failed repeatedly
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for over two decades, Smith argues that Congress has effectively decided
in favor of the current policy. In contrast, Schuck maintains that no
such inference should be drawn legally or politically. Thousands of leg-
islative proposals are introduced in each Congress; the vast majority of
them go nowhere, for a host of reasons. This is why the Supreme Court
routinely states that it will not draw any inferences about congressional
intent from such inaction.
Smith points to an exception to this refusal, citing Justice Robert
Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, also
known as the “Steel Seizure Case.” Jackson rejected the particular seizure
at issue there, relying in part on Congress’s recent refusal to pass a bill
authorizing certain executive takeovers of steel mills. Schuck responds
that Jackson’s was only a concurring opinion (though it became a very
influential one for other reasons) on a different question (i.e., the terms of
executive-congressional power sharing), and thus would not control the
question of whether congressional inaction on bills to deny birthright citi-
zenship for this group of children amounts to approval of the status quo.
Some scholars, notably Princeton University president Christopher
Eisgruber, insist that the Constitution’s democratic commitments require
the U.S. government to be responsive to all those — including undocu-
mented immigrants and their children — over whom it exercises power
and authority. Eisgruber maintains that this “Responsiveness Principle”
justifies a rule of birthright citizenship to protect an easily neglected and
unpopular portion of the governed. But such concerns, we think, are
best addressed by democratic policymaking majorities or by applying
principles derived from the Equal Protection Clause to specific govern-
ment actions that unconstitutionally disadvantage aliens. This approach,
which the Court used in Plyler v. Doe, a 1982 decision striking down
Texas’s exclusion of undocumented children from its public schools as a
violation of equal protection, is better than removing the fundamental
issue of birthright citizenship from democratic decision-making.
Unauthorized aliens vary greatly in their degree of attachment to
American life. Congress is best equipped to judge whose claims to
transmit birthright citizenship to their children are warranted, per-
haps depending on how long, and how law-abidingly, they have resided
and acculturated here. This criterion of a “genuine connection” with
American society, which also draws on international-law precedents, is
further elucidated below.
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Some commentators support birthright citizenship for this group

based on constitutional theories that stress human rights over demo-
cratic self-governance. To them, the Constitution is best understood
today as an “anti-subordination,” “anti-domination,” or “anti-caste” in-
strument for preventing what they regard as unjust systems of public
and private hierarchy and exploitation. They interpret the post-Civil
War amendments, particularly the 14th Amendment with its Equal
Protection Clause, as the centerpiece of this egalitarian project.
For us, however, the central issue is whether the framers entertained
a conception of consent to membership in the American polity that
would leave to Congress the authority to sort through and resolve the
competing concerns raised by the question of birthright citizenship.
These include unconsented presence, social solidarity, the risk of en-
trenching these children’s existing disadvantages, alternative ways in
which non-citizens’ basic human rights might be protected, and the
question of whether judicial review of congressional decision-making
on these issues can adequately safeguard constitutional values.
As we have seen, the framers vested such discretion in Congress with re-
spect to Native Americans, whose presence in the country (which of course
long predated that of the framers themselves) was manifestly accepted. This
was recognized in the 14th Amendment’s own text, a long line of treaties
with the tribes, and legislation regulating their citizenship. We doubt the
framers would have denied Congress that same policy choice with respect
to a group whose very presence in the country — by definition — violates
federal law. Basic constitutional protections for this group would certainly
have been granted, as in Plyler. But automatic citizenship without public
debate and congressional consent would probably not have been.
Some scholars who have reflected on birthright citizenship are
motivated by facets of political theory, especially democratic theory.
These include what is called the “boundary problem”: whether and
how a democratic polity can be democratically constituted and circum-
scribed. Some suggest that each “demos” must be defined in terms of
the residents of territorially constituted nation-states, even though those
states were not formed through predominantly democratic processes.
Birthright citizenship can seem desirable from this perspective, as it ties
democratic membership to shared territorial origins. Even so, this does
not mean that birthright citizenship must automatically extend to those
present on a state’s territory in violation of its laws.
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Other democratic theorists, including Bonnie Honig, claim that

defining the boundaries of a demos through democratic processes
can foster valuable deliberation over the prior question of who may
participate in those contested approval processes. But absent clear con-
stitutional indications to the contrary, which are lacking here, the basic
question regarding who should decide on membership must rest with
the elected representatives of the American people.
In reasoning about birthright citizenship for the children of unau-
thorized immigrants, many of them may well have legitimate moral or
humanitarian claims upon American society that Congress is obliged
to take seriously, including obligations that Americans may have in-
curred by our own conduct: for example, by encouraging immigrants
to migrate to the U.S., by countenancing their presence with inadequate
enforcement, and by benefitting from their labor. But some political
theorists, notably Ayelet Shachar, go further, maintaining that birth-
right citizenship contributes to a world of nation-states that are highly
unequal, nation-states in which billions of people’s life prospects are
severely diminished or greatly enhanced by the accident of where they
happen to have been born. In the end, Shachar calls not for the elimina-
tion of the nation-state system but for a “jus nexi” rule of membership,
derived from international-law cases that rest citizenship on the “social
fact of attachment,” the “genuine connection” people have with the
population of a state.
But whereas Congress could and surely would use such “genuine
connection” as a consideration in deciding whom to include, on what
terms, and with what status, Shachar would empower judiciaries in
some circumstances to decide that such connections make persons legal
citizens of their state of residence, even if the state’s other, more repre-
sentative organs disagree. In the U.S., however, this notion of judicially
conferred membership (except in the context of interpreting or apply-
ing a citizenship-related statute) has no basis in either constitutional
law or liberal-democratic theory. Courts do not possess this power, and
Congress would certainly not grant it to them.

T he Ch a ngi ng Polic y Con t e x t

In the third of a century since we wrote our book arguing that birth-
right citizenship for the U.S.-born children of unauthorized aliens is
not constitutionally mandated, the political and policy environment
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in which Congress would (if it chose) reconsider this policy has

changed significantly.
In November 2016, the Republican Party won control of the White
House and both houses of Congress after a campaign in which can-
didate Donald Trump denounced automatic birthright citizenship for
these children and called for ending this practice. To our knowledge,
no previous candidate for the presidency had ever done this (although
the 1996 Republican Party platform did). Having now assumed the pow-
ers of the presidency, his position on birthright citizenship is reason
enough to re-examine the current facts on this issue, as they may acquire
new importance in the near future.
In a policy paper released on August 16, 2015, candidate Trump stated
that birthright citizenship is “the biggest magnet for illegal immigra-
tion.” Days later, in a heated exchange with Univision anchor Jorge
Ramos while on the campaign trail in Iowa, Trump questioned whether
the 14th Amendment provides birthright citizenship to the children of
undocumented persons:

A woman is getting ready to have a baby, she crosses the border

for one day, has the baby, all of a sudden for the next 80 years,
hopefully longer, but for the next 80 years we have to take care of
the people. No, no, no, I don’t think so. Excuse me, some of the
greatest legal scholars — and I know some of the television schol-
ars agree with you. But some of the great legal scholars agree that
that’s not true. . . . There are great legal scholars, the top, that say
that’s absolutely wrong.

While Trump was opposing birthright citizenship on the campaign trail,

a number of other GOP primary candidates, including Wisconsin gov-
ernor Scott Walker and New Jersey governor Chris Christie, also voiced
support for re-examining the matter. South Carolina senator Lindsey
Graham in 2010 called birthright citizenship a “mistake,” and Kentucky
senator Rand Paul co-sponsored a bill in 2011 that would “only extend
citizenship to babies born in the U.S. if one or more of their parents was
a citizen, immigrant with legal status, or member of the armed forces.”
Trump advanced no specific proposal for how he would change the
birthright-citizenship rule, and in office he has said little or nothing
about it. He did not include any proposal on birthright citizenship in
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his sweeping immigration-reform proposal released in October 2017.

Still, this mercurial president, frustrated by the failure of his proposal
for a wall on the Mexican border and by a series of judicial setbacks on
his other migration-reform proposals, may decide to actively promote
his 2015 view.
If expressed views are one significant way in which the political con-
text around birthright citizenship has changed, the sheer size of the
relevant population is another. Nobody can be certain, of course, about
the number of children born in the U.S. to undocumented parents. In
October 2016, the Pew Research Center, drawing on standard Census
Bureau sources, estimated that about 275,000 such babies were born to at
least one unauthorized-immigrant parent in the U.S. in 2014, a decline
from 330,000 in 2009. They represented about 7% of total U.S. births in
2014. Pew also estimated that,

In 2014, there were 4.7 million U.S.-born children younger than

18 living with unauthorized-immigrant parents. There also were
725,000 children younger than 18 who were unauthorized im-
migrants themselves and lived with unauthorized-immigrant
parents. These totals do not count U.S.-born children of unau-
thorized immigrants who do not live with their parents.
The share of children of unauthorized immigrants who are
U.S. born has been increasing over the past two decades. This
likely is related to the fact that long-term residents constitute a
rising share of unauthorized immigrants. In 2014, two-thirds of
adult unauthorized immigrants had lived in the U.S. for a decade
or more, compared with 41% in 2005.

One result of these conditions is a growing number of “mixed-status

families” in which at least one parent is undocumented and at least one
child is a birthright citizen. Inferences drawn from various data sources
suggest that at least 4.1 million U.S.-citizen children lived with at least
one unauthorized-immigrant parent during the 2009-13 period.
As the Iowa exchange between Trump and Ramos suggests, the aspect
of birthright citizenship that draws almost universal condemnation by
Americans is so-called “birth tourism.” This occurs when foreign moth-
ers come to the U.S. briefly to have their babies here, thus securing the
enormous advantage of U.S. citizenship for these children — and possibly
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visas for the parents once the citizen child reaches the age of 21 and can
petition for such parent visas. Not surprisingly, estimates of the frequency
of this practice vary widely. One high-end estimate finds a total of 60,000
from China alone in 2014, a six-fold increase from 2012.
These changes in political and demographic context, along with re-
lated changes in the broader character of American government, have
altered the basic calculus around birthright citizenship over time. In
Citizenship Without Consent, we speculated that “[t]o a pragmatic politi-
cal system, the fact that birthright citizenship derived historically from
alien philosophical premises may in the end have seemed less important
than the fact that it has ‘worked’ in the sense of performing practical
tasks that have been set for it.” We discussed the rule’s main practical ad-
vantages: its inclusiveness, its clarity and administrative simplicity, and
its constraint on statelessness. We also noted, however, that each of these
advantages was gained only by way of substantial overbreadth: that is, by
including in our polity millions of infants whose parents Congress had
prohibited from even entering the country, much less allowing them to
transmit automatic citizenship to their children in this way.
Our book discussed two historical developments that magnified this
incongruity: increased illegal migration and an expanding welfare state.
Each of these developments — and their trajectory since the book’s pub-
lication — now renders the policy of automatic birthright citizenship for
this group even more controversial and consequential than it was then.
The first development is increased illegal migration to the United
States. In 1983, the number of illegal immigrants in the U.S. was esti-
mated at slightly over 2 million, representing just under 1% of the total
population. Between 1983 and 2016, Congress enacted a series of legal-
ization programs and numerous measures to strengthen both border
and interior enforcement, including stricter sanctions, a vastly increased
budget for enforcement and personnel, and more detention capacity.
Despite these efforts, the slight decline in the undocumented popula-
tion in the wake of the Great Recession was erased in 2010. By 2016, the
number had risen to 11.3 million, representing 3.5% of the population
and at an absolute level close to its historical high. By 2018, a resurgence
appeared to be underway.
These statistics speak for themselves. The U.S. now has an unauthor-
ized population that can only be substantially reduced through a more
significant amnesty program and much stronger enforcement measures
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that are politically and legally unlikely. Since our book appeared in 1985,
many more U.S.-born children of this far larger unauthorized popula-
tion became citizens automatically at birth, making the debate over the
legitimacy and desirability of the status quo even more acute today.
The book also identified a second development: the persistent
growth of a welfare state from which, due to automatic birthright
citizenship, members of this group are eligible to receive benefits
throughout their lives. This growth has magnified both the consent-
based and policy-based objections to automatic birthright citizenship
for this group. Since 1985, the overall financial costs of entitlements like
food stamps, health care, student loans, the Earned Income Tax Credit,
Social Security pensions, and disability insurance (not to mention dis-
cretionary programs) have increased sharply, even as eligibility for some
other forms of aid has been reduced. At the same time, undocumented
immigrants harm the labor-market opportunities and wages of some
low-skill workers, although labor economists dispute the magnitudes
of those negative effects.
The fact that these programs generate social benefits, not just costs,
does not alter the fact that the current birthright-citizenship regime
confers taxpayer-supported aid on millions of people whose presence
and membership come in violation of the polity’s laws.
Many of their undocumented parents will also receive benefits, some
of them authorized by the laws of high-tech, undocumented-immigrant-
friendly states like New York and California. The National Academies
of Sciences, Engineering, and Medicine issued a 2016 report on the fiscal
effects of all immigration, legal and illegal, concluding that immigrants
contribute less in annual taxes than native-born Americans, though
they make other contributions to the nation’s GDP. Finally, welfare en-
titlements for people whom many voters reject almost certainly reduces
voters’ willingness to support even current levels of legal immigra-
tion, much less the higher levels favored by us and a minority of other
Americans. Here, we suspect, the public’s resentment of this unwanted
group’s entitlement to welfare benefits greatly exceeds its actual fiscal
impact and contributes to rising anti-immigration sentiment.
A third development since our book appeared has been the rise in
nationalist and anti-immigrant views exhibited by voters in most other
liberal democracies. (Canada is so far an exception.) This populist re-
sistance to even legal immigration makes birthright citizenship for the
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children of undocumented immigrants more politically anomalous and

unpopular than ever before.
The vast majority of Americans (90% in 2015, up from 80% in 2006)
indicate that they are “aware” that the U.S.-born children of illegal im-
migrants are automatically citizens. The most recent survey on this
question, conducted by NBC News and the Wall Street Journal and
published in October 2017, found that 53% of respondents thought that
“we should continue to grant citizenship to all children born in the
U.S.”; 42% opined that this should be changed so that “children of il-
legal immigrants are not automatically granted citizenship.” An earlier
Pew Research Center survey in February 2011 found that 57% agreed
that the Constitution should remain as it is, allowing any child born
in the U.S. full citizenship; 39% favored changing the Constitution to
bar birthright citizenship for the children of illegal aliens. On this ques-
tion, Republicans were sharply divided, with 49% wanting to leave the
Constitution as it is, while 47% favored a constitutional amendment to
bar birthright citizenship for this group.
Remember, however, that the public tends to strongly oppose amend-
ing the Constitution, regardless of the subject matter. Neither of these
surveys asked respondents whether, assuming that the Constitution al-
lows Congress to legislate on the matter, as we have argued it does,
Congress should adopt a different policy by statute. And of course the
surveys did not ask whether Congress should adopt an intermediate
position (discussed below) modifying the birthright-citizenship rule by
statute to allow some, but not all, undocumented children born in the
U.S. to gain citizenship under certain specified conditions. With these
important caveats, the new survey evidence shows a fairly sharp divi-
sion on birthright citizenship for this population, with a slight majority
favoring continuation of the status quo.
We presume that few voters are aware of how distinctive the American
approach to this question has been. Of course, the United States is an
outlier, and in some cases unique, among nations in many ways relevant
to citizenship policy: our comparatively open legal-immigration policies
before the 1920s and since 1965; our remarkable tradition of ethno-racial
and religious diversity, even though it has included invidious inequali-
ties; our large and growing unauthorized-immigrant population, which
partly reflects our very long land border with a vastly poorer region; our
comparatively easy, non-culturally based naturalization requirements;
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our commitment to legal equality; and, finally, our constitutionally

based commitment to birthright citizenship.
Given these differences, it is unsurprising that the citizenship rules
of other liberal democracies differ from those of the U.S. in some im-
portant respects, including birthright citizenship. So-called jus sanguinis
citizenship, based on the citizenship of one’s parents rather than on
where one is born (jus soli), is far more common than birthright citi-
zenship, which emerged from the English common-law tradition. Most
countries in the world, particularly “developed” ones, do not follow
the jus soli regime of birthright citizenship. No European country ac-
cords citizenship based simply on birth in its territory. In a 2010 survey,
the Center for Immigration Studies, a strong advocate of immigration
restriction and opponent of birthright citizenship for undocumented
children, could not confirm the citizenship policies of 19 countries in
Africa and Asia, but did not find any clear examples among these coun-
tries of policies that accord citizenship based merely on birth in the
territory. A number of jus sanguinis countries, however, do allow for
limited jus soli citizenship for children who are born stateless, or are
foundlings. Some jus sanguinis countries permit a sort of limited jus soli
citizenship where the parents meet certain legal-residence requirements.
Likewise, the U.S. and many other jus soli countries also have limited
provisions for jus sanguinis citizenship.
But here too, things have been changing. A number of countries
with traditionally unqualified jus soli rules have (often citing concerns
about illegal immigration) recently abolished or adopted limits on jus
soli, conditioning the child’s birthright citizenship on the parents’ birth
in the country or legal-residence status. This is the rule in both Australia
and New Zealand. The British Nationality Act of 1981, which came into
force in 1983, repealed prior law that conferred virtually unrestricted jus
soli citizenship (with narrow exceptions for diplomats’ children); the law
now conditions birthright citizenship for children born there after 1983
on rigorous parental-residential requirements.
Such a child is “a British citizen if at the time of the birth his father or
mother is” either “a British citizen” or “settled in the United Kingdom,”
which means “being ordinarily resident in the United Kingdom . . .with-
out being subject under the immigration laws to any restriction on the
period for which he may remain.” Ireland — which after the British
act was the sole remaining European country with unrestricted jus soli
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citizenship — adopted its own parental-residential requirements in a

2004 referendum in which concerns about “birth tourism” became an
issue. The new Irish law states that, “at least for one parent, a three-year
residence period is required before citizenship can be attributed jure soli
to a child born on Irish soil.” Some other traditionally jus soli countries,
like India in 1987, have eliminated their jus soli provisions entirely, with-
out even an exception for children whose parents have legal residence.
In general, a global trend has developed in which traditionally jus
soli countries outside the U.S. either restrict birthright citizenship to
the legal-residency status of at least one parent or repeal their jus soli
provisions altogether. (Where parental legal residency suffices, it is of-
ten unclear whether one or both parents must be legal residents; one is
probably enough.) The notable exception to this is Canada, which, like
the U.S., does not require that a parent of the Canada-born child have
legal status. This feature of Canada’s rule, like ours, is controversial and
seems likely to become more so as illegal migration to Canada increases.
In some other countries — Brazil, Mexico, and Peru, for example — the
legal status of the parents likewise appears to be irrelevant.
In another trend, some traditionally jus sanguinis countries have
added jus soli elements to their citizenship laws, but usually conditioned
on the parents’ own birth or residency status in the country. In this
sense, a kind of convergence has occurred between traditionally jus soli
and traditionally jus sanguinis countries: The former impose restrictions
on birthright citizenship, while the latter condition birthright citizen-
ship on parental citizenship or legal residence (or “settled” residence,
which appears to be the same thing legally), or on parental birth in the
country (“double jus soli”).
Exemplifying this trend, Germany’s citizenship reform in 2000 has
been described as the “most remarkable and significant citizenship re-
form in Europe during the past decades.” Traditionally among the most
stalwart jus sanguinis countries, Germany added elements of jus soli but
with strict conditions based on parental citizenship or legal-residency
status. It now allows birthright citizenship for children of non-citizens
born in Germany, but only if certain parental-residency requirements
are met. According to a 2012 Library of Congress report, “A child born
in Germany to parents who are aliens acquires German citizenship only
if one parent has had his or her habitual abode in Germany for at least
eight years and either has a permanent German residence permit that
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entitles him or her to reside in Germany or another European Union

member country or has the citizenship of another EU member country.”

A n I n t er medi at e Posi t ion ?

The existing rule of unrestricted birthright citizenship has a number of
advantages, as noted above. But it also opens the door to some practices
(perhaps most notably, the various forms of “birth tourism”) that provoca-
tively violate the consent principle at the heart of democratic government,
as well as create perverse incentives for illegal entrants and overstays.
Altering the rule of birthright citizenship can be undertaken by con-
gressional statute, as we have argued. But what kind of change would be
reasonable? One of us (Schuck) has proposed a reform that promises to
achieve a better combination of advantages and disadvantages. In place
of automatic birthright citizenship, we could substitute retroactive-to-
birth citizenship for the U.S.-born children of illegal-immigrant parents
who demonstrate a substantial attachment to, and familiarity with, this
country by satisfying two conditions: a certain period of residence here
after the child’s birth, and a certain level of education of the child in our
schools. (In almost every case, of course, the two conditions will overlap,
and the schooling will assure at least a minimal level of proficiency in
English and knowledge of American history and society.)
Reasonable people can differ about what the qualifying periods of
residence and education should be, whether those periods must be
continuous, and other conditions. (Australia’s 2007 citizenship law, for
example, abolished birthright citizenship while creating an exception
for a person “ordinarily resident in Australia throughout the period of
10 years” beginning at birth.) In Schuck’s view, completion of eighth
grade should suffice for this limited purpose. Certifying compliance
should be administratively simple. And during the interim period, the
individual should have the legal status of presumptive citizen, with all
of the attributes of citizenship for individuals of their age. The parents’
status would remain the same as under current law unless they can gain
legal status through an expanded legalization program or otherwise.
One can easily imagine objections to this reform, especially by those
who categorically reject birthright citizenship for this group on grounds
discussed above. But two answers to such objections are compelling in our
view. First, whether Americans like it or not, these children are now legal
citizens at birth. The question, then, is whether an over-inclusive status
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quo should be retained. Second, the normative objections to their citi-

zenship — that their connection to our country is imposed without our
consent and is often adventitious, transient, and insubstantial — would be
met by the proposed reform, whose enactment would provide the requi-
site consent to, and conditions for, their citizenship.
To be sure, the current climate presents the danger that political de-
liberations over any changes to current birthright-citizenship practices
might lead to policies of heightened deportations of otherwise-law-
abiding long-term residents, and of reduced legal immigration. We
oppose both of these policies. But because controversies over immigra-
tion and birthright citizenship have only grown in recent decades and
are likely to intensify further, we believe that the quest to find reasonable,
humane compromises on these vital topics is more urgent than ever.

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