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The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment
Rodríguez, Cristina
Rodríguez, Cristina
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Abstract
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.