Immigration And Nationality Act 50th Anniversary Series: Birthright Citizenship?

In the first of a series celebrating the 50th anniversary of the Immigration and Nationality Act of 1965, this post explores the concept of birthright citizenship.

President Lyndon B. Johnson signing the Immigration and Nationality Act of 1965 on Liberty Island in New York Harbor. Via the LBJ Library online (LBJLibrary.org)/ Presidential candidate Donald Trump discussing immigration reform. Via CNN.

Election years often revive old bones of contention, and the issue of birthright citizenship is but one of many that comes and goes. The 2016 presidential election is no different, and thanks to Republican candidate Donald Trump the meaning and appropriateness of birthright citizenship granted under the 14th Amendment has once again come to light.

The concept of jus soli—"right of soil," or birthright citizenship—dates back to English common law. On July 28, 1868, when the 14th Amendment was ratified, it became one way of determining who is (and is not) a U.S. citizen at birth. The 14th Amendment states in pertinent part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside."

The citizenship clause of the 14th Amendment came as a result of the aftermath of the Civil War. The 39th Congress sought a way to enfranchise the former slaves in the South, however to do so they needed to overturn the earlier Supreme Court ruling in Dred Scott v. Stanford, which held that African-Americans were not citizens of the United States. Thus a constitutional amendment was needed.

Even in the 39th Congress, the "citizenship clause" proposed by Senator Jacob Howard (R-MI) caused intense debate. Senator Edgar Cowan (R-PA) was one of several who voted against the amendment, objecting to granting birthright citizenship to the children of aliens who "owe [the U.S.] no allegiance [and] who pretend to owe none." However, Senator John Conness (R-CA) argued, "This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States." Ultimately, the 14th Amendment passed in the Senate 33-11, the House 120-32, and received the necessary ¾ votes of the states for ratification.

The scope of the 14th Amendment was largely settled in the 19th century when the...