Legal Commentary

For the last dozen years, there has been a steady campaign against the Fourteenth Amendment?s requirement of ?birthright citizenship? ? automatic citizenship for ?all persons born ? in the United States and subject to the jurisdiction thereof.? In 1996, the Republican Party adopted a plank endorsing a constitutional amendment to get rid of ?soil citizenship.? A steady stream of stories about ?maternity tourists? fueled popular anger at the right to acquire citizenship by birth within U.S. territory. (See, e.g., here and here ). Statutes and constitutional amendments have been proposed as recently as last spring.

Yet birthright citizenship not only survived, but the attackers seem to have fled the field. The plank is gone from the Republican Party?s platform, Huckabee disassociated himself from the movement for an anti-birthright amendment, and this election year has not seen calls for the abolition of the Fourteenth Amendment ideal.

Thank goodness, say I (being admittedly an extremist on immigration libertarianism). But how did birthright citizenship survive?

I do not have an answer, beyond the obvious one of the formidable obstacle posed by Article V. It certainly cannot be because we represent part of an international trend. To my knowledge, every other OECD nation except Canada has abandoned the idea of birthright citizenship in favor of some version of jus sanguinis (i.e., inheritance of citizenship from a parent). This includes the United Kingdom, which arguably created it in 1608 with Calvin's Case . Sarkozy speaks about France's maintaining a "republican" concept of citizenship ? but I take ?republican? to mean little more than ?not Muslim.? Germany struggled with a partial and tentative bestowing of birthright citizenship on the children of its (mostly Turkish) guest workers in 2000. Several Latin American nations follow birthright citizenship ? but I doubt that they contend with as many immigrants as the United States. Canada and the United States may stand virtually alone as nations that take in large numbers of immigrants yet stick to the old jus solis ideal that their children will be citizens if the maternity ward is within the relevant physical space.



Whatever the cause, here is a case in which I think that we have been right to buck the European practice. It seems to me that, regardless of one?s views on the desirability of immigration, it is hypocrisy to rely on laborers whom one disenfranchises indefinitely. The ?soil citizenship? ideal insures that eventually any group that is enlisted, tacitly or otherwise, to labor for our economy will eventually obtain political rights through their children.

But I?m still not sure why the campaign to amend the 14th Amendment faded away so ignominiously, despite its prominence as a wedge issue even just a couple of years ago. Is it naive to think that the position lost on the merits (or lack thereof) of the position?