The Facts about Birthright Citizenship -

Petula N. McShiras, Immigration Attorney, Hanes & Bartels LLC Oct. 4, 2019

Until the 14th Amendment was enacted, the U.S. Constitution was silent on U.S. Citizenship. Then with the adoption of the 14th Amendment in 1868, the words “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” However, that was not the first time the concept of birthright citizenship arose. Indeed, the concept of birthright citizenship has been around much longer than the United States.

U.S. doctrine and our laws originally derived from British common law. Under British common law, citizenship was either based on jus soli (birth on the soil) or jus sanguinis (citizenship based on blood). In Murray v. Schooner Charming Betsy, 6 U.S. 64, 119-20 (1804), the Supreme Court recognized and held that a person born on territorial land of the United States and remained there after the American Revolution was a U.S. Citizen. As such, U.S. Citizenship by birth on soil was always part of the development of the United States, but U.S. citizenship through blood did not arise until 1790 when Congress passed a law allowing it. While citizenship by birth on soil as a concept actually existed prior to citizenship by blood, it was not codified by Congress until the Civil Rights Act of 1866 as a remedy to the Dred Scott decision.

Although the 14th Amendment rooted the idea of jus solis in the Constitution, citizenship of immigrant children has continued to be challenged. In 1898, the Supreme Court further solidified the principle of jus soli, by holding that a child born in the United States to non-U.S Citizen parents is a U.S. Citizen. United States v. Wong Kim Ark, 169 U.S. 649 (1898).

Thus, the concept of birthright Citizenship is rooted in our U.S. founding and history as well as our Constitution. To change it, Congress would have to pass an amendment to the 14th Amendment, which would require a ⅔ majority vote in both houses, and then ratification by more than half of the 50 states. No easy feat.