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By Barbara Rinto

As is my routine, I was watching the nightly PBS Newshour a few months
ago. There was piece on the Rohingya from Myanmar who are now
refugees in Bangladesh. Many are young, pregnant women who have
subsequently given birth in Bangladesh. However, their babies’ births are
not being registered because the country does not consider them
Bangladeshis. And, although their parents were born in Myanmar (formerly
Burma), neither the babies nor the parents are citizens of Myanmar. These
children are now “stateless”, without nationality and likely to suffer
continuing severe consequences as a result.

This reporting piqued my interest in questions of nationality and citizenship
especially as it relates to the ongoing fights in the US over the fate of
undocumented migrants. According to the International Justice Resource
Center, more than 10 million people across the world currently lack
nationality and are therefore stateless. Although the number of stateless
peoples in the US is unknown, because of birthright citizenship, it is unlikely
that the numbers are NOT large.

The terms nationality and citizenship are often used interchangeably. They
are not synonymous. Nationality is an identity. To be a national is to be a
member of a state. You acquire nationality through birth or adoption or
marriage with specifics varying from country to country. The UN
Declaration of Human Rights declares that “Everyone has the right to a

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nationality” and that “No one shall be arbitrarily deprived of her nationality
nor denied the right to change her nationality.” However, the UN
Declaration is silent on citizenship.

As an article in the Economist explains, “citizenship is a narrower concept.
It is a specific legal relationship between a person and the state. You are
afforded certain rights and responsibilities as the citizen of a state. It does
not have to accompany nationality.” For example, in Mexico, as in many
Latin countries, you acquire your nationality at birth, but you do not become
a citizen until you turn 18.

Throughout the world there are two major concepts governing the granting
of citizenship – Jus Sanguinis, the right of blood, and Jus Soli, the right of
soil, or the land. With Jus Sanguinis, it does not matter where an individual
is born. If at least one parent is a citizen of that country, citizenship will
pass to the child. (Note: women often did not or do not have the right to
pass citizenship on to their children.)

Jus Soli, on the other hand, refers to where an individual was born. An
individual acquires the citizenship of that State by being born on the State’s
territory, regardless of the citizenship or immigration status of the
individual’s parents.

Jus Sanguinis is far more prevalent and exists throughout Europe and
virtually all of Asia and African. In fact, the trend in many countries has

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been to eliminate Jus Soli or to sharply restrict the criteria under which it
will be used.

In 1983, the British Nationality Act repealed prior law that gave virtually
unrestricted birthright citizenship. The new law now predicates citizenship
on rigorous parental-residential requirements. This has resulted in the
deportation or statelessness of some Caribbean- born English residents,
known as the Windrush generation.

Ireland was the last European country with Jus Soli citizenship until a
citizen referendum in 2004 in which concerns about “birth tourism” became
an issue.
Unlike Britain and Ireland, India eliminated its birthright citizenship in 1987
and allows no exceptions for children even those whose parents have legal

Of course, none of these countries has the unique history of the U.S. with
its extraordinarily diverse population and its more welcoming immigration
policies over most of its past.

The United States adheres to the concept of Jus Soli or right of soil/ land,
referred to a birthright citizenship. It means that if you are born here, you
are automatically a citizen. It is one of our most well-known and famous

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rights. A Pew Research Center survey in 2015 said 90% of Americans are
aware of the constitutional right to citizenship for those born in the US.

Most of the countries of the Americas adhere to the birthright citizen
standard – Canada, Peru and Brazil among them. The right to Jus Soli is
recognized in an unrestricted sense in about 30 countries around the world.

Last October, President Trump denounced birth right citizenship and
pledged to stop it. He and many in his administration have been hostile to
immigrants and refugees from poor and/or Muslim countries once
remarking “Why do we want all these people from Africa here? They’re
shithole countries … We should have more people from Norway.” Early
in his tenure, he instructed the Justice Department and Homeland
Security to impose a ban on entries from a group of Muslim nations
using national security as his justification. After several iterations and
court challenges a modified version has been upheld and

This attitude toward immigrants, especially undocumented, is not a new
position for the current President or for the Republican party. Trump stated
his opposition to birthright citizenship during his campaign, as did several of
the other Republican presidential candidates. In the 1996 presidential
race, the Republican party included the elimination of birthright citizenship
in their party platform. Then Candidate Dole, however, denounced it.

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Trump and other opponents contend that allowing birthright citizenship
incentivizes “illegal immigration” to the U.S. Using the term “anchor babies”,
he has insisted that undocumented immigrants enter the U.S. with the
intention of giving birth and thereby improving their chances of becoming
U.S. citizens. Trump has said that he will exercise his executive authority to
prohibit birth right citizenship. “It was always told to me that you needed a
constitutional amendment. Guess what? You don’t, Trump told Axios in an
interview in October. “You can definitely do it with an Act of Congress. But
now they’re saying I can do it just with an executive order.” As an aside, I
was unable to find out who “they” are!

Legal experts say the president cannot use an Executive order to eliminate
birth right citizenship since the right is found in the 14 th amendment of the
Constitution and changing it would require amending the Constitution. Polls
show that the great majority of Americans are reluctant to amend the
constitution for any reason. However, there is serious discussion about
what the role of Congress can be in defining citizenship under the 14 th

The concept of birthright citizenship is grounded in English common law
and was exported to the colonies. The debate in the U.S. originated with
former slaves well before the Civil War who began advocating for full
citizenship. They were forming communities, having families, building
businesses and they wanted to protect themselves from efforts to take their
holdings or even to deport them.

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The framers of the original Constitution did not spell out who was a citizen
and gave the power to Congress to determine the rules of citizenship. The
original United States Naturalization Law of 1790 provided the first rules to
be followed by the United States in the granting of national citizenship. This
law limited naturalization to immigrants who were “free White persons of
good character”.

During the 19 th century, white leaders, including those who opposed
slavery, were reluctant to grant citizenship to black people. In an effort to
find compromise between slave holders and abolitionists, colonization was
proposed. This effort was a sort of deportation system, favored by some
powerful whites (like Daniel Webster, Henry Clay and Thomas Jefferson),
to send free black people to Africa, Central America, Canada, or the
Caribbean. Even the great emancipator, Abraham Lincoln, was a supporter
of voluntary recolonization for freed black people. (Think of Liberia founded
in 1821).

The best-known effort to secure citizenship for black people resulted in the
infamous Dred Scott decision by the Supreme Court in 1857. Dred Scott
was a slave in Missouri who sued for his freedom in a Missouri Court. He
contended that because he had lived in two free states and the free
Louisiana Territory, he was in fact, free. He lost, and the case eventually
made its way to the U.S. Supreme Court.

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A 7-2 majority held that “a negro, whose ancestors were imported into [the
U.S.], and sold as slaves,” whether enslaved or free, could not be an
American citizen and therefore did not have standing to sue in federal
court. Because the Court lacked jurisdiction, Chief Justice Roger Taney
dismissed the case on procedural grounds.

Taney, who wrote the opinion, also found the Missouri Compromise of
1820 unconstitutional. This was an attempt to balance power between the
South and North by allowing Maine to enter the Union as a free state and
Missouri to be a slave state and to geographically bound the development
of slave and free states.
Finally, Taney ruled that slaves were property under the Fifth Amendment
(no person shall be deprived of property without due process), and that
any law that would deprive a slave owner of that property was
The Dred Scott decision further inflamed tensions between North and
South and helped move the country to war.

After the passage of the 13 th amendment ending slavery and the end of the
Civil War, former slaveholding states were still trying to erode the rights of
free, and the newly freed. The Congress passed a Civil Rights Act in 1866
to protect those rights. However, President Johnson vetoed it and although
the Congress was able to override his veto it became clear the statute was
not sufficient to fully protect the citizenship rights of black people for
perpetuity. Hence, the 14 th amendment was drafted, using the Civil Rights

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Act as a template, ratified and became part of our Constitution. And in our
contemporary political discourse, it is the source of controversy about
birthright citizenship.

Most of us in this room know the 14 th as the Equal Protection amendment.
It has been used as the basis for many civil rights decisions over the years
including the 1965 Griswold v Connecticut case giving married couples the
right to contraception, Loving v Virginia on interracial marriage and most
recently the Obergefell v Hodges decision upholding same sex marriage.
Section 1 of the 14 th amendment spells out citizenship and it is here that we
find the controversial clause for the purpose of determining birthright
citizenship. It reads “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.”

Opponents of birth right citizenship have disputed the meaning of the
phrase “subject to the jurisdiction thereof”. They argue that undocumented
immigrants are not truly under the authority of the United States; that they
owe allegiance to their home country and that allegiance could influence
their loyalty to the U.S. Therefore, opponents conclude the children of
these “illegal” aliens are barred from birth right citizenship.

Most legal scholars and historians argue that this clause refers only to a
very specific, select group of people including the children of diplomats and
enemy soldiers. (Note that originally it also included Native Americans

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because of their semi-sovereign status within the U.S.) Scholars cite
writings from the 14 th ’s drafters that show clear intent for the universal
nature of birthright citizenship.
In the United States v Wong Kim Ark, the US Supreme Court faced the
birth right citizenship question directly. Ark involved a child born to Chinese
immigrant parents in San Francisco. The child left the US for a trip and then
was denied reentry to the US under the Chinese Exclusion Act which
prohibited most Chinese immigration and, by extension, naturalization of
Chinese residents. While his parents remained Chinese citizens, their son
claimed US citizenship under the 14 th amendment and the Court agreed.
Conservative legal scholar John Yoo, in commenting on the Chinese
Exclusion Act and the subsequent Wong Kim Ark decision, wrote “While
Congress could block immigration entirely or control the process of
naturalization, it could not alter the right of citizenship for all born within
American borders.”
Opponents take issue with this conclusion and believe that Congress does
have the power to forbid birthright citizenship for undocumented or illegal
aliens. In October, Senator Lindsay Graham, SC Republican, has said that
he will introduce legislation following Trump’s pledge. “The United States is
one of two developed countries in the world who grant citizenship based on
location of birth. This policy is a magnet for illegal immigration, out of the
mainstream of the developed world, and needs to come to an end.”

Critics of birthright citizenship note that the number of births to
unauthorized immigrants has grown from 80,000 per year in 1980 to

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275,000 in 2014. Terms like “anchor babies” are used to imply that poor
people of color, primarily from Mexico and Central America, are flooding
the US illegally to have their babies here and reap the benefits. According
to the Center for Immigration Reform, a conservative, anti-immigration
group, “71% of illegal alien headed households with children received some
sort of welfare in 2009, compared with 39% of native-headed households
with children.” They contend that the significant rise in Medicaid costs are
attributable in large part to illegal aliens. When the child reaches 21, they
may sponsor their family members for citizenship.

Critics also cite the rise of “Birth tourism” in the U.S. This term refers to
women who obtain guest visas and come to the US intentionally to give
birth and then return with their baby to their home country. They want their
child to be able to access the benefits of American citizenship in the future
especially educational benefits. Companies have sprung up to help women
with housing, obstetrical care, and other services they will need during their
2-3 month stay. Russian and Chinese citizens are the primary customers of
these services although women also come from South Korea, Saudi
Arabia, Turkey, Mexico and Nigeria.

Those supporting birthright citizenship claim that ending it will not reduce
illegal immigration. The Migration Policy Institute, an independent, non-
partisan, non-profit think tank in Washington D.C., in conjunction with
researchers at Penn State, estimate that ending birth right citizenship
would “increase the existing unauthorized population by 4.7 million people
by 2050.” Moreover, future generations would inherit their forebearers lack

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of legal status which would have deep implications for social cohesion. It
would “be contrary to the sense of fair play that has characterized the U.S.
and would perpetuate the kind of hereditary disadvantage as practiced by
many European countries.”
From a political viewpoint, it would not be met favorably by the public. The
Pew Research Center survey in 2015 shows that most Americans {60%)
oppose ending birthright citizenship. An even higher percent of Democrats
oppose ending birthright citizenship.

Further arguments in support maintain that birth right citizenship does not
discriminate based on race or national origin, gender, religion or political
affiliation. It has yielded enormous diversity for the U.S. with all its
attendant strengths and benefits.
The current practice is simple and fair. Supporters of birthright citizenship
ask what would replace it and how would it be enforced? We don’t have a
national birth registry. How would we adjudicate parental status?

So, is it likely that birthright citizenship will be lost in the U.S.? In my view,
it is legally possible although not likely. Opposition to birthright citizenship
has waxed and waned over the last 100 plus years. This administration has
put forward highly controversial and punitive Executive Orders affecting
immigrants and refugees. Although I could find no credible source who
thought an Executive Order would be legal, it could be used as a tactic to
gain Supreme Court review. We do not know how the current court would
view a challenge to birth right citizenship.

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The newly elected majority in the House of Representatives would certainly
block any statutory efforts to change birthright.

I, for one, would like to make sure we keep birth right citizenship. I am a
fervent supporter of immigration and want to see our Congress honestly
and compassionately resolve the issue of the undocumented without
tampering with one our greatest assets. It is a proud heritage and one we
should preserve.

Michael Fix, President of the Migration Policy Institute, makes the
strongest case for the importance of retaining birthright citizenship. He
writes “… beyond issues of politics, equity, and values lies one of national
self-interest. Study after study makes clear the gains to the U.S. economy
and civic fabric that result from the full integration of immigrants into
society—integration that is well underway by the second generation.
Birthright citizenship has been crucial to this civic and social integration.
Repeal would not only have the unintended effect of swelling the size of the
unauthorized population, it would also represent an insurmountable barrier
to this intergenerational progress that has been at the heart of the nation’s
immigration story and success.”

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