States Tackling Birthright Citizenship

By Chad Burchard | January 10, 2011

14th Amendment to the U.S. Constitution: 1868

Some 14 legislators from five different states gathered at the National Press Club in Washington, DC on January 5th to announce their plan to end the practice of granting automatic citizenship to the children of illegal immigrants.

The legislators have set their sights on clarifying the language of the 14th Amendment, which states in part that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Currently, the federal government interprets this to mean that it must confer citizenship on the children of illegal aliens born on U.S. soil.

However, the legislators argue that the amendment has been misinterpreted. They believe that the legislative history of the 14th Amendment shows that the words “subject to the jurisdiction thereof” were meant to exclude persons owing no allegiance to the United States.

Relying on this theory, the legislators unveiled model legislation drafted by Kansas Secretary of State and law professor Kris Kobach, who calls it an attempt to “revive the concept of state citizenship.” [State Lawmakers Outline Plans to End Birthright Citizenship, Drawing Outcry, Julia Preston, The New York Times, January 5, 2011].

The legislation defines a person born “subject to the jurisdiction of the United States” as one who is “a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.” This would, of course, exclude the American-born children of illegal immigrants.

The legislators also proposed that states adopting this legislation should agree to indicate on a child’s birth certificate whether or not they were born “subject to the jurisdiction of the United States” as defined above.

None of this, however, changes the current definition of U.S. citizenship. The purpose of the legislation and the agreement to issue separate birth certificates is rather to force Congress or the courts to act on the matter. These legislators are confident that once the legal battle starts, their arguments will carry the day.

And indeed, a battle over birthright citizenship seems likely to come in the near future. Many of the legislators at the conference vowed to introduce the legislation in the coming weeks and months, during their respective legislative sessions. The legislators also took turns explaining why they felt compelled to participate in the conference.

“I feel that the birthright citizenship issue must not be taken lightly and loopholes that allow for individuals to unlawfully remain in our country and take advantage of valuable taxpayer resources must be closed,” said Georgia State Sen. Jack Murphy. [States seek to deny birthright citizenship to children of illegal immigrants, Jeremy Redmond, Atlanta Journal-Constitution, January 5, 2011].

Pennsylvania State Rep. Daryl Metcalfe put it more bluntly. “We are here to send a very public message to Congress,” he said. “We want to bring an end to the illegal alien invasion that is having such a negative impact on our states.” [Preston, The New York Times, January 5, 2011].

However, the movement to change the law regarding birthright citizenship has generated fierce opposition. A coalition of groups calling itself Americans for Constitutional Citizenship opposes any attempt to change birthright citizenship. The coalition includes the ACLU, NAACP, the National Council of La Raza and various other civil and immigrants’ rights organizations.

The movement has drawn fire from some academics as well. University of Arizona Law Professor Gabriel J. Chin derided the state legislators’ efforts as “political theater,” and called the entire idea “unwise, un-American and unconstitutional.” [Birthright Citizenship Looms as Next Immigration Battle, Marc Lacey, The New York Times, January 4, 2011].

Some of the intense opposition to the legislators’ proposal was evident at the press conference itself. At one point during the event, someone in the audience shouted that the legislators’ proposal was “ignorant and wrong” as well as “racist” and “inhumane” and that it “will be stopped.” Another member of the audience also stood up and repeatedly demanded to know “which corporate backers wrote this bill” until they were escorted out of the room. Their words were largely drowned out by other audience members who shouted at them to sit down. [Opponents of Illegal Immigration Target Birthright Citizenship, Devin Dwyer,, January 5, 2011].

There is also considerable division among the general public on this issue. In a Rasmussen poll taken in June of last year, 58 percent of those polled said that the U.S. born children of illegal immigrants should not be granted automatic U.S. citizenship. Some 33 percent said that they should be.

In any event, if the legislators at the conference proceed with their plans and several states adopt the legislation and agree to the compact that they are proposing, then the result will almost certainly be a lawsuit that will eventually work its way up to the Supreme Court.