The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment, 11 UNIV. PENN. J. OF CONSTITUTIONAL LAW 1363 (2009)
Section 1 of the Fourteenth Amendment begins by making clear
that "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." Questions about the scope of this
birthright citizenship rule were largely settled by the late nineteenth
century, and Congress has stepped in to provide statutory citizenship
to those individuals born in the United States-namely Native Americans-
who have been found not to be constitutional birthright citizens.
The only remaining controversy regarding the scope of the Citizenship
Clause involves whether children born to unauthorized
immigrants (a category unknown at the time the Citizenship Clause
was adopted), are "subject to the jurisdiction" of the United States,
thus making them birthright citizens. This question launched an extended
debate in the late twentieth century among scholars and advocates,
largely as the result of the publication by Peter Schuck and
Rogers Smith of Citizenship Without Consent in 1985, in which they argue
that the original understanding of the Citizenship Clause did not
support extending the jus soli rule to the children of the unauthorized.
Date of Authorship for this Version
citizenship, Fourteenth Amendment, immigration
Rodríguez, Cristina M., "The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment" (2009). Faculty Scholarship Series. Paper 4335.