JMC faculty partner Rogers Smith and Peter Schuck co-authored an article in National Affairs exploring birthright citizenship’s constitutional standing.
The Question of Birthright Citizenship
By Peter H. Schuck & Rogers M. Smith
From National Affairs
If an unauthorized alien gives birth to a child on American soil, is the child automatically a United States citizen? Americans have long assumed that the answer is yes — that the child is a birthright citizen regardless of the parent’s legal status, and that such citizenship is required and guaranteed by the Constitution. But a closer examination of the matter suggests that this answer is actually incorrect, and that birthright citizenship for the children of immigrants here illegally is better understood as a matter for Congress and the American people to resolve.
We first took up this question more than three decades ago in a book, Citizenship Without Consent: Illegal Aliens in the American Polity, published in 1985 by Yale University Press. Significant political and legal developments have occurred since then, but none alters our core conclusion: Under the best reading of the Citizenship Clause of the 14th Amendment, the citizenship status of the American-born children of illegal immigrants is not mandated by the Constitution. Rather, this clause empowers Congress to decide the matter in its policy discretion (so long as it does not violate other constitutional rights), thereby giving specific content to the principle of popular consent — perhaps the fundamental principle of American democracy — that the clause adopted.
How Congress should exercise this discretion is a separate and more difficult policy question, especially for scholars like us who strongly favor even more legal immigration than the U.S. now accepts, and a generous amnesty for those now here illegally. And it may well become a pressing political question. Donald Trump pronounced as a presidential candidate in 2016 that he objected to birthright citizenship for these children. He has so far declined to take up the issue as president, but that could easily change — and the broader effect of his presidency on the national debate over immigration could move birthright citizenship to a more prominent place on the Republican agenda.
It is worth understanding, then, why birthright citizenship is a legitimate political and policy question, and a hard one.
Rogers Smith is a JMC faculty partner and the Christopher H. Browne Distinguished Professor of Political Science and the Associate Dean for Social Sciences at the University of Pennsylvania. Professor Smith centers his research on constitutional law, American political thought, and modern legal and political theory, with special interests in questions of citizenship, race, ethnicity and gender. He was elected as an American Academy of Arts and Sciences Fellow in 2004, a Fellow of the American Academy of Political and Social Science in 2011, and a Member of the American Philosophical Society in 2016. Professor Smith was voted President-Elect of the American Political Science Association for 2017-2018.
Peter H. Schuck is the Simeon E. Baldwin Professor of Law Emeritus at Yale University. He has held this chair since 1984, served briefly as Deputy Dean of the Law School, and took emeritus status in 2009. His major fields of teaching and research are law and public policy; tort law; immigration, citizenship, and refugee law; groups, diversity, and law; and administrative law.
He has written on a broad range of other public policy topics. His most recent books include Why Government Fails So Often, and How It Can Do Better (2014); and Understanding America: The Institutions and Policies that Shape America and the World(Public Affairs, 2008) (co-edited with James Q. Wilson).
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