U.S. Citizenship of Persons Born in the United States to Alien Parents

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

Over the last decade or so, concern about illegal immigration has sporadically led to a re-
examination of a long-established tenet of U.S. citizenship, codified in the Fourteenth
Amendment of the U.S. Constitution and §301(a) of the Immigration and Nationality Act (INA)
(8 U.S.C. §1401(a)), that a person who is born in the United States, subject to its jurisdiction, is a
citizen of the United States regardless of the race, ethnicity, or alienage of the parents. The war on
terror and the case of Yaser Esam Hamdi, a U.S.-Saudi dual national captured in Afghanistan
fighting with Taliban forces, further heightened attention and interest in restricting automatic
birthright citizenship, after the revelation that Hamdi was a U.S. citizen by birth in Louisiana to
parents who were Saudi nationals in the United States on non-immigrant work visas and arguably
entitled to rights not available to foreign enemy combatants. This report traces the history of this
principle under U.S. law and discusses some of the legislation in recent Congresses intended to
alter it.
The traditional English common-law followed the doctrine of jus soli, under which persons born
within the dominions of and with allegiance to the English sovereign were subjects of the
sovereign regardless of the alienage status of their parents. The exceptions to this rule are persons
born to diplomats, who are born subjects of the sovereign whom the parents represent abroad, and
persons born to citizens of a hostile occupying force, who are born subjects of the invading
sovereign. Although the states and courts in the United States apparently adopted the jus soli
doctrine, there still was confusion about whether persons born in the United States to alien
parents were U.S. citizens. This arose because citizenship by birth in the United States was not
defined in the Constitution nor in the federal statutes. Legal scholars and law makers were torn
between a “consensualist” doctrine of citizenship, by which a person and a government consent to
be mutually obligated, and an “ascriptive” doctrine by which a person is ascribed citizenship by
virtue of circumstances beyond his control, such as birth within a particular territory or birth to
parents with a particular citizenship. Additionally, African-Americans were not considered
citizens of the United States, even if they were free. Native Americans also were not considered
U.S. citizens because they were members of dependent sovereign Indian nations. The Civil Rights
Act of 1866 and the Fourteenth Amendment, ratified in 1868, extended birthright citizenship to
African-Americans, but the United States Supreme Court made clear that although U.S.-born
children of aliens were U.S. citizens regardless of the alienage and national origin of their parents,
Native Americans still were not U.S. citizens under the terms of those laws. Native Americans
were made U.S. citizens by statute.
In the 110^th Congress, H.R. 133 and, in the 109^th Congress, H.J.Res. 41, H.J.Res. 46, H.R. 698, §
201 of H.R. 3700, § 701 of H.R. 3938, § 322 of H.R. 4313, and title V of S. 2117 are among
current and recent bills to amend the Constitution and/or the INA to exclude from citizenship at
birth persons born in the United States whose parents are unlawfully present in the United States
or are nonimmigrant aliens; unsuccessful attempts were made to include provisions in H.R. 4437.
This report will be updated as necessary.

Introduc tion ..................................................................................................................................... 1
Historical Development...................................................................................................................1
Jus Soli Doctrine before the Fourteenth Amendment...............................................................1
The Fourteenth Amendment and the Civil Rights Act of 1866.................................................5
United States v. Wong Kim Ark and Elk v. Wilkins.....................................................................6
Legislative Proposals.......................................................................................................................8
Constitutional and Statutory Amendments................................................................................8
Congressional Act Without Constitutional Amendment.........................................................13
Author Contact Information..........................................................................................................16

Over the last decade or so, concern about the level of immigration, focused particularly on illegal
immigration, has sporadically led to a re-examination of a long-established tenet of U.S.
citizenship, codified in the Fourteenth Amendment of the U.S. Constitution and §301(a) of the
Immigration and Nationality Act [INA] (8 U.S.C. §1401(a)), that a person who is born in the
United States, subject to its jurisdiction, is a citizen of the United States regardless of the race,
ethnicity, or alienage of the parents. The war on terror and the case of Yaser Esam Hamdi, a U.S.-
Saudi dual national captured in Afghanistan fighting with Taliban forces, further heightened
attention and interest in restricting automatic birthright citizenship, after the revelation that
Hamdi was a U.S. citizen by birth in Louisiana to parents who were Saudi nationals in the United ¹
States on nonimmigrant work visas and arguably entitled to rights not available to foreign enemy
combatants.
Some proponents of immigration reform have advocated either constitutional or statutory
amendments to limit automatic citizenship upon birth in the United States so that persons born in
the United States to parents who are unlawfully present in the United States or are non-immigrant
aliens would not become U.S. citizens. This report traces the history of “automatic birthright
citizenship” under U.S. law and discusses the legislation in recent Congresses intended to alter it.

There are two basic doctrines for determining birthright citizenship. Jus soli is the principle that a
person acquires citizenship in a nation by virtue of his birth in that nation or its territorial ²
possessions. Jus sanguinis is the principle that a person acquires the citizenship of his parents, ³
“citizenship of the blood.” The English common law tradition prior to the Declaration of
Independence, which was the basis of the common law in the original thirteen colonies and which ⁴
was adopted by most of the states as the precedent for state common law, followed the jus soli ⁵
doctrine. Persons born within the dominion of the sovereign and under the protection and
ligeance of the sovereign were subjects of the sovereign and citizens of England; this included
persons born to “aliens in amity” who owed temporary allegiance to the sovereign while in his

¹^Ha^m^d^{i a}^ppa^re^ntly^re^turne^d^to^Sa^{udi A}^r^a^b^ia^w^{ith his}^pa^re^{nts w}^h^ile^he^w^a^{s still a}^todd^le^{r a}^nd^di^{d n}^o^{t r}^e^{turn t}^o^t^h^e
^Unite^{d S}^t^a^t^e^s^unt^{il he}^w^a^{s broug}^h^t^he^re^a^s^aⁿ^eⁿ^e^m^y^c^o^m^b^a^t^aⁿ^{t. Brie}^f^o^f^Am^ic^{us Curia}^e^Cla^r^e^m^{ont I}ⁿ^stitute^Ce^nte^r^f^o^r
^Coⁿ^s^tⁱ^t^u^tⁱ^oⁿ^a^l^Juri^sp^r^u^d^eⁿ^{ce at}^2-³^an^{d Bri}^e^f^o^f^Amⁱ^cⁱ^Cu^ri^{ae t}^h^{e Cen}^t^{er f}^o^{r Ameri}^can^Unⁱ^t^y^et^al^.^at³^f^o^r^Ha^mdⁱ^v.
^Rumsfe^ld^,⁵⁹^L^.^Ed.^2d⁵^78,¹²⁴^{S. C}^t^.²⁶³³⁽²⁰⁰⁴⁾⁽^N^o^.⁰³^-⁶⁶⁹⁶⁾^.
²^B^l^a^c^k^’^s^Law^Dⁱ^c^tiona^r^y^{775 (}⁵^th^Ed.¹⁹⁷⁹⁾^;^eⁿ^tr^y^f^o^r^“^j^us^s^o^li.”
³^Id^{.; e}ⁿ^tr^y^a^t^“^j^us^s^a^ng^uinis^.^”
⁴^Ly^nc^{h v}^.^C^l^ar^k^e^{, 1}^Sa^ndf^or^{d C}^h^.⁵⁸³^{, 6}⁴⁶⁽^N^.Y^.¹⁸⁴⁴⁾^;^{4 C}^HAR^L^E^S^G^ORDON^,^S^TA^N^L^EY^M^AI^L^M^AN^&^S^TEP^H^EN^Y^AL^E^-
^L^OE^H^R^,^I^MMI^G^RA^T^I^O^N^L^AW^AN^D^P^ROCE^DURE^{§ 92.0}³^[¹^]^[^b^]⁽²⁰⁰⁵⁾^;^I^s^idor^B^l^um^,^{Is Go}^v.^Geo^r^g^e^R^o^mn^{ey Elig}ⁱ^b^{le t}^o^b^e
^Pre^s^ideⁿ^{t? [}^{part tw}^o^]^{, N}^e^w^Y^o^r^k^L^a^w^J^our^na^{l, p}^.¹^,^c^o^l^.⁵⁽^O^c^t^obe^r¹⁷^{, 1}⁹⁶⁷⁾^.
⁵^{4 G}^ORDON^,^M^AI^L^M^AN^&^Y^AL^E^-L^OE^H^R^,^s^upr^a^f^oot^note^{4, a}^t^§^92.⁰³^[¹^]^[^a^&^b^]^{; Jill A}^.^P^r^y^o^r,^The^N^a^tural-B^o^{rn C}^itizeⁿ
^Clause^aⁿ^d^Pre^s^ideⁿ^ti^{al E}^ligi^b^ili^t^y^{: An A}^ppro^a^c^h^for^Re^s^o^lvⁱⁿ^g^Tw^{o H}^u^ndr^e^d^Ye^{ars of}^Unc^e^r^tain^ty^,^{97 Y}^a^le^L^.^J^.⁸^81,
⁸⁸⁶^&^n.²⁴⁽¹⁹⁸⁸⁾^.

territory.⁶ The exceptions were persons born to members of a hostile occupying force or to ⁷
diplomats representing another sovereign. The reason was that the children of a hostile
occupying force did not owe allegiance to nor were born under the protection of the proper
sovereign of the occupied territory. The children of diplomats, although enjoying the temporary
protection of the sovereign while in his/her dominions, actually owed allegiance to and had a
claim to the protection of the sovereign whom their parents represented at the court of the
sovereign in whose dominions they were born. All civilized nations recognize and assent to the
immunity of foreign diplomats from their jurisdiction, without which a foreign ambassador might
not be able to effectively represent the sending sovereign, but it would be “inconvenient and
dangerous to society ... if [private individual aliens] did not owe temporary and local allegiance, ⁸
and were not amenable to the jurisdiction of the country.”
The original framers of the U.S. Constitution did not define citizenship of the United States,
although the Constitution required that a person have been a citizen of the United States for seven ⁹
years to be a Representative and for nine years to be a Senator, and that a person be a natural-
born citizen or a citizen at the time of the adoption of the Constitution in order to be eligible to be ¹⁰
President (and therefore, Vice-President). The Naturalization Act of 1790 and subsequent Acts
until the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment did not define ¹¹
citizenship by birth within the United States. These naturalization acts specified that only free
white persons could be naturalized. As a result of the absence of any definition in the Constitution
or federal statutes of U.S. citizenship by birth in the United States, citizenship by birth in the ¹²
United States generally was construed in the context of the English common law. This provided
the frame of reference and definition of “citizenship” that the framers of the Constitution would
have understood and also provided the pre-independence precedent for state common laws. The
acquisition of citizenship by birth and by naturalization in the United States depended on state ¹³
laws, both statutory and common law, until the enactment of the naturalization law in 1790. The

⁶^Uⁿ^ite^d^St^ate^s^v^.^W^oⁿ^g^Kⁱ^m^Ar^k^,¹⁶⁹^U^.^S.⁶^49,⁶^55-⁶⁶^{8 (}¹⁸⁹⁸⁾^;^Ly^nc^{h v}^.^C^l^ar^k^e^{, 1}^Sa^ndf^or^d^C^h^{. a}^t⁶⁷⁰^;^Ca^lv^in’s
^Ca^se^{, 7 C}^o^k^e^’s^Re^ports¹^,^8-²¹⁽¹⁶⁰⁷^)(a^s^re^printe^{d in}^v^o^l.⁴^of^the¹⁸²^{6 e}^d^itio^{n e}^d^ite^d^by^J^{ohn H}^.^T^hom^a^s^&^J^{ohn F.}
^F^r^aser).
⁷^Uⁿ^ite^d^St^ate^s^v^.^W^oⁿ^g^Kⁱ^m^Ar^k^,¹⁶⁹^U^.^S.^a^t⁶^75,⁶^82-⁶⁸^8;^C^a^lv^in’^s^Case^{, 7 C}^o^k^e^’^s^R^e^por^ts^a^t^10-¹¹^.
⁸^Uⁿ^ite^d^St^ate^s^v^.^W^oⁿ^g^Kⁱ^m^Ar^k^,¹⁶⁹^U^.^S.^a^t⁶^83-⁶⁸^{8, c}^iti^ng^the^c^a^s^e^of^T^h^e^Ex^c^h^a^nge^{, 7 C}^r^aⁿ^c^h^.¹¹⁶⁽¹⁸¹²⁾^.
⁹^U^.^{S. C}^ons^t.^a^r^{t. I}^,^§2^{, c}^l^.^{2 (}^R^e^p^r^e^s^e^nta^tiv^e^s⁾^,^U^.^{S. C}^ons^t^.^a^r^{t. I}^,^§^{3, c}^l^.^{3 (}^S^eⁿ^a^t^or^s⁾^.
¹⁰^U^.^{S. C}^ons^t.^a^r^{t. I}^I^,^§^{1, c}^l^.^5.
¹¹^A^c^{t of}^Ma^r^c^{h 26, 1}⁷⁹⁰^,^{1 S}^t^a^t^{. 1}^{03; A}^c^{t of}^J^a^nua^r^y^{29, 1}⁷⁹⁵^,^{1 St}^a^t^{. 41}^{4; A}^c^{t of}^A^p^r^{il 14,}¹⁸⁰²^{, 2}^Sta^t^{. 1}^53;^A^c^{t of}
^Fe^br^ua^r^y^{10, 1}⁸⁵⁵^,¹⁰^Sta^t^.⁶^04.
¹²^Ly^nc^{h v}^.^C^l^ar^k^e^{, 1}^Sa^ndf^or^{d C}^h^.^a^t⁶⁴^6,⁶⁵^{8; I}^s^id^or^B^l^um^,^s^upr^a^f^oot^note^4,^a^t^{p. 1,}^c^o^{l. 5.}
¹³^On^{e sh}^ou^l^d^no^t^e^t^h^at^t^h^e^d^e^t^e^rmⁱⁿ^atⁱ^oⁿ^o^f^U.^S^.^ci^tⁱ^zen^shⁱ^p^b^yⁿ^a^t^u^ralⁱ^zatⁱ^oⁿ^al^so^d^e^p^e^nd^ed^oⁿ^st^at^{e l}^a^{ws p}^rⁱ^o^{r t}^o^t^h^e
^en^act^m^eⁿ^t^o^f^t^h^{e f}ⁱ^rst^f^e^d^e^ralⁿ^a^t^u^ralⁱ^zatⁱ^oⁿ^act^.^T^h^{e el}^ec^tion^of^A^l^be^{rt G}^a^lla^{tin to the}^U.^{S. Se}^na^teⁱⁿ¹⁷⁹^{3 w}^a^s
^su^ccess^f^u^l^l^y^ch^allen^g^ed^oⁿ^t^h^{e g}^r^o^uⁿ^d^s^t^h^{at h}^e^h^a^dⁿ^o^t^b^een^{a U.}^S.^citizen^f^o^{r n}ⁱⁿ^e^y^e^{ars as req}^uⁱ^red^b^y^th^e^rd
^C^ons^tit^uti^on.^{4 A}^NNAL^S^O^F^C^ONG^RE^S^S^{, 3}^C^ong^.^47-^55,⁵⁷^-⁶^{2 (}^G^a^l^e^s^&^Se^a^t^{on 1}⁸⁴⁹^—^t^he^r^e^m^a^y^be^s^o^m^e^dif^f^e^r^e^nc^eⁱⁿ
^the^pa^gⁱ^na^ti^on^be^tw^e^eⁿ^dif^f^e^r^eⁿ^{t pr}^inti^ng^s^of^the^s^a^m^e^c^ong^r^e^s^sⁱ^ona^{l de}^ba^te^s⁾⁽^c^ov^e^r^ing^pe^rⁱ^o^d^of^Fe^br^ua^r^y^20-²⁸^,
¹⁷⁹⁴⁾^.^H^e^c^l^aⁱ^m^e^{d tha}^t^he^ha^d^be^c^o^m^e^a^c^itiz^eⁿ^of^e^ithe^r^Vir^gⁱⁿ^ia^or^Ma^s^s^a^c^hus^e^tts^a^t^le^a^s^{t ni}^ne^y^e^ar^s^be^f^o^r^e^his
^e^l^e^c^{tion. B}^u^{t a}^m^a^jority^of^the^Se^na^te^{, u}^p^oⁿ^aⁿ^e^x^a^m^ina^tion^of^the^Vⁱ^rg^inia^aⁿ^d^Ma^ssa^c^huse^{tts c}^itiz^eⁿ^ship^la^w^s^{, de}^cⁱ^de^d
^tha^t^G^a^lla^{tin ha}^d^no^{t sa}^tisfⁱ^e^d^the^re^side^nc^y^o^f^e^ithe^r^sta^t^e^prior^to^m^o^vⁱ^ng^{to P}^eⁿⁿ^sy^lv^aⁿ^ia^,^w^h^e^r^e^he^ultim^a^t^e^l^y^se^ttle^d
^an^d^w^a^{s el}^ect^ed^t^o^Coⁿ^g^ress.^{He h}^a^d^no^t^b^een^resi^d^e^ntⁱⁿ^P^eⁿⁿ^sy^l^v^anⁱ^a^f^o^{r n}ⁱⁿ^e^y^{ears p}^rⁱ^o^{r t}^o^el^ectⁱ^oⁿ^.^T^hⁱ^s^exa^m^p^l^e
^a^l^s^o^illus^t^ra^te^s^t^h^e^pre^-^Co^ns^tit^utio^{n p}^o^s^iti^{on t}^h^a^t^U^.^S^.^c^itiz^eⁿ^s^hⁱ^p^c^o^uld^no^{t e}^x^is^{t w}^{ithout s}^t^a^t^e^c^itiz^eⁿ^s^h^ip,^w^h^ic^{h s}^o^m^e
^le^g^a^{l s}^c^hola^r^s^c^ontin^ue^d^{to e}^s^p^o^u^s^e^until^the^Civ^{il W}^a^{r. A}^lt^houg^h^G^a^lla^{tin ha}^{d re}^sⁱ^de^{d i}ⁿ^t^h^e^Uⁿ^ite^d^Sta^t^e^s^f^o^{r thirte}^eⁿ
^years,^h^e^h^a^d^no^t^satⁱ^s^fⁱ^ed^al^l^t^h^e^req^uⁱ^rem^eⁿ^t^{s f}^o^{r ci}^tⁱ^zen^shⁱ^pⁱⁿ^t^h^{e st}^at^es^w^h^{ere h}^e^h^a^d^resi^d^e^{d n}ⁱⁿ^e^{years b}^e^f^o^re
^e^l^e^c^{tion. G}^a^lla^{tin trie}^d^{to a}^r^g^u^e^,ⁱⁿ^t^e^r^a^l^ia^,^t^h^at^U.^S^.^ci^tⁱ^zen^shⁱ^p^w^a^{s n}^o^t^d^e^p^e^nd^en^t^oⁿ^st^at^{e ci}^tⁱ^zen^shi^p^l^a^w^s^w^hⁱ^c^h^h^a^d
^ex^isted^b^e^f^o^{re in}^d^e^p^eⁿ^d^en^{ce b}^ecau^{se U.S. citizen}^s^h^ip^d^e^p^eⁿ^d^ed^oⁿ^allegⁱ^an^{ce to}^th^{e n}^e^wⁿ^a^tioⁿ^an^d^e^v^en^p^e^rsoⁿ^s^w^h^o
^ha^{d be}^eⁿ^na^tur^a^l-^bor^{n c}^itiz^eⁿ^s^of^the^s^t^a^t^e^s^w^e^r^e^{not c}^o^ns^ide^r^e^d^c^iti^z^eⁿ^s^of^the^Uⁿ^ite^d^Sta^t^e^s^if^the^y^ha^{d no}^{t s}^h^owⁿ
⁽^c^onti^nue^d.^..)

Naturalization Act of 1790, enacted pursuant to the Congress’s powers under the Constitution,¹⁴
clearly established the definition of citizenship by naturalization, but Congress’s silence on the
issue of citizenship by birth in the United States caused some confusion and disagreement as to
what the appropriate definition was. For example, some persons rejected the idea that English ¹⁵
common law provided the proper rule for citizenship by birth in the United States. And until the
Civil War, some eminent jurists and legal scholars believed that there was no real citizenship of
the United States separate from citizenship in a state; that is, a person was a citizen of a state
which was part of the Union, therefore a person was a citizen of the United States by virtue of his ¹⁶
citizenship in a state.
Although the English common law at the time of the adoption of the Constitution considered a
person born in the English dominions to alien parents to be an English citizen unless those alien
parents fit into the exceptions described above, and although American law apparently generally
accepted this position, there nevertheless appeared to be some uncertainty as to whether persons
born in the United States to alien parents were, in fact, citizens of the United States. Some
scholars ascribe this uncertainty to the desire of Americans to embrace both a “consensualist” ¹⁷
doctrine of citizenship, by which a person and a government consent to be mutually obligated,
and an “ascriptive” doctrine by which a person is ascribed citizenship by virtue of circumstances
beyond his control, such as birth within a particular territory or birth to parents with a particular ¹⁸
citizenship.

^(...c^on^tin^ue^d)
^a^lle^gⁱ^aⁿ^c^e^{to the}^ne^w^g^o^v^e^rⁿ^m^e^{nt a}^nd^na^tio^n.
¹⁴^U^.^{S. C}^ons^t.^a^r^{t. I}^,^§^{8, c}^l^s^.^{4 &}¹⁸^.
¹⁵^Se^e^{, e}^.^g^.,^Ly^nc^{h v}^.^C^l^ar^k^e^,¹^S^a^nd^f^o^r^d^C^h^.^at⁶⁵^7;^{4 G}^ORDON^,^M^AI^L^M^A^N^&^Y^AL^E^-L^OE^H^R^,^s^upr^a^f^oot^note^{4, a}^t^§
^92.⁰³^[¹^]^[^b^]^{. n}^.^9;^P^ETER^H.^S^CH^U^C^K^&^R^OGE^R^S^M.^S^MI^T^H^,^C^I^T^I^ZEN^S^H^{IP W}^I^T^H^O^U^T^C^ONS^E^N^T^:^I^LLE^G^A^L^A^LI^EN^{S I}^N^T^H^E
^A^ME^R^I^CA^N^P^OL^I^T^Y^{, 50-}^{54 (}¹⁹⁸⁵⁾^.
¹⁶^Sla^u^g^h^te^r^-^H^ous^e^C^a^s^e^s^,¹⁶^W^a^l^l^{ace 3}⁶^,⁷²⁽¹⁸⁷³⁾^;^L^e^oⁿ^a^rd^W^.^L^e^v^y^,^Kenⁿ^e^t^h^L^.^Karst^{& Den}ⁿⁱ^{s J.}^M^a^h^oⁿ^e^y^,
^Citizen^sh^ip⁽^H^isto^rica^{l Develo}^p^m^en^t)^{, E}ⁿ^c^y^c^l^ope^dia^of^the^A^m^e^rⁱ^c^aⁿ^C^ons^t^itutⁱ^oⁿ²⁵⁸⁽¹⁹⁸⁶⁾^.
¹⁷^{Cases aro}^s^{e i}ⁿ^t^h^{e Uni}^t^e^d^S^t^at^{es t}^h^rou^g^h^t^h^{e earl}^yⁿⁱⁿ^e^t^een^t^h^cen^t^u^ry^coⁿ^cernⁱⁿ^g^t^h^eⁱ^ssu^{e o}^f^ci^tⁱ^zen^shⁱ^p^o^fⁿ^a^t^u^ral^-
^b^o^rⁿ^st^at^{e ci}^tⁱ^zen^{s w}^h^o^s^{e al}^l^e^gi^an^{ce t}^o^t^h^{e U}ⁿⁱ^t^e^d^S^t^at^{es w}^a^{s i}ⁿ^q^u^e^stⁱ^oⁿ^.^G^eⁿ^e^ral^l^y^,^su^ch^ci^tⁱ^zen^{s h}^a^d^l^e^f^t^t^h^{e Un}ⁱ^t^e^d
^Sta^t^e^s^f^o^r^Eng^l^a^nd^or^Eⁿ^g^lis^{h d}^o^m^inions^be^f^o^r^e^or^durⁱⁿ^g^the^R^e^v^o^luti^ona^r^y^W^a^r^a^{nd no a}^c^t^by^the^m^or^theⁱ^r^hom^e^s^t^a^t^e
^h^a^d^af^fⁱ^r^m^ed^t^h^ei^{r al}^l^e^gi^an^{ce t}^o^t^h^{e i}ⁿ^d^e^p^eⁿ^d^eⁿ^t^st^at^{e o}^r^t^h^{e Un}ⁱ^t^e^d^S^t^at^es.^F^act^o^r^{s rel}^e^van^t^t^o^t^hⁱ^s^con^s^en^su^al
^c^itiz^eⁿ^s^h^{ip i}ⁿ^c^l^u^d^e^d^w^h^e^t^he^r^t^h^e^pe^r^s^{on w}^a^s^borⁿ^be^f^o^r^e^or^a^f^te^r^J^u^ly^{4, 17}⁷⁶^{; w}^h^e^t^he^r^the^pe^r^s^on^le^f^t^f^o^r^Eng^l^aⁿ^d
^be^f^o^r^e^or^a^f^te^r^J^u^l^y^{4, 1}⁷⁷⁶^{; w}^h^e^t^he^r^the^pe^r^s^{on w}^a^s^a^mⁱ^nor^a^t^the^tim^e^o^f^de^pa^r^t^ur^e^f^o^r^Eng^l^aⁿ^{d; w}^h^e^t^he^r^the^pe^r^s^oⁿ
^el^ect^ed^t^o^af^fⁱ^r^m^U.^S^.^al^l^e^gi^an^{ce u}^p^oⁿ^at^t^aⁱⁿⁱⁿ^{g m}^a^j^o^ri^t^y^{; a}^{nd w}^h^e^t^he^r^the^pe^r^s^{on w}^a^s^borⁿ^or^r^e^sⁱ^din^g^{in te}^r^r^itor^y
^duriⁿ^g^{its oc}^c^u^pa^tio^{n by}^the^Britis^{h o}ⁿ^o^r^a^f^te^{r July}^{4, 177}^6.^{For e}^x^a^m^ple^,^if^a^pe^{rson w}^a^{s born a}^Briti^{sh sub}^j^e^c^t^{, i.e}^.,
^be^f^o^re^July^{4, 177}^{6, a}^{nd a}^s^aⁿ^a^d^u^{lt di}^{d n}^o^{t a}^dhe^re^to^theⁱ^nde^pe^nde^{nt sta}^t^e^s^a^f^te^{r Jul}^y^{4, 1}⁷⁷⁶^,^he^re^m^a^ine^d^a^British
^s^ubje^c^t^{. G}^e^ne^r^a^ll^y^,^if^he^w^a^s^borⁿ^a^f^te^r^J^u^l^y^{4, 17}⁷⁶^{, he}^w^a^s^a^U^.^S.^c^itiz^eⁿ^{, u}ⁿ^le^s^s^he^w^a^s^bor^{n i}ⁿ^B^r^it^is^h-^oc^c^u^pⁱ^e^d
^t^e^rri^t^o^ry^,^l^e^f^t^f^o^{r E}ⁿ^gl^an^d^{as a m}ⁱⁿ^o^r^,^an^d^dⁱ^d^no^t^el^ect^t^o^af^fⁱ^r^m^hⁱ^{s U.}^S^.^ci^tⁱ^zen^shⁱ^p^wⁱ^t^hⁱⁿ^{a reaso}ⁿ^ab^l^e^tⁱ^m^{e a}^f^t^e^r
^a^tta^ining^his^m^a^jorit^y^.^Se^e^I^nglis^v^.^Sai^lor^’^s^Sⁿ^u^g^H^a^r^bor^,²⁸^U.S.⁽³^P^e^{ters) 9}⁹⁽¹⁸³⁰⁾^.^B^u^t^{see McIl}^vaⁱⁿ^{e v.}^Co^x^{, 8}
^U^.^{S. (}⁴^C^r^aⁿ^c^h⁾²⁰^{8 (}¹⁸⁰⁸⁾^,^w^h^e^r^e^the^C^o^ur^{t he}^l^d^t^h^a^t^a^pe^r^s^oⁿ^w^{ho jo}^ine^d^the^B^r^it^is^{h A}^r^m^y^a^{nd le}^f^t^f^o^r^Eng^l^a^{nd s}^tⁱ^ll
^h^a^dⁱⁿ^h^e^ri^t^aⁿ^{ce ri}^gh^t^s^b^ecau^{se i}ⁿⁱ^tⁱ^a^l^l^y^h^e^h^a^d^rem^aⁱⁿ^edⁱⁿ^New^Jer^s^e^y^a^f^t^e^{r Ju}^l^y⁴^,¹⁷⁷⁶^,^and^af^t^e^{r N}^e^w^J^e^rse^y^h^a^d
^pa^s^s^e^{d le}^gⁱ^s^l^a^tion^de^c^l^a^r^ing^its^e^l^f^aⁿⁱⁿ^de^peⁿ^d^eⁿ^{t a}ⁿ^{d s}^o^v^e^r^e^ig^{n s}^t^a^t^e^a^{nd its}^r^e^sⁱ^de^nts^t^o^be^c^itiz^eⁿ^s^o^f^the^inde^peⁿ^d^eⁿ^t
^s^t^a^t^e^,^a^{nd t}^hus^he^ha^d^be^c^o^m^e^a^cⁱ^tiz^eⁿ^of^inde^pe^nde^{nt N}^e^w^J^e^r^s^ey^.^Se^e^als^o^Sh^ank^s^v^.^D^u^p^ont^{, 2}⁸^U.^{S. (3}^P^e^{ters) 2}⁴²
⁽¹⁸³⁰⁾^,^h^o^ldiⁿ^g^tha^t^a^w^o^m^a^{n bor}^{n in}^So^ut^{h C}^a^r^o^li^na^be^f^o^r^e^J^u^ly^{4, 17}^76,^aⁿ^d^r^e^m^a^ining^the^r^e^a^f^te^r^w^a^r^{d, w}^a^s^a^c^itiz^eⁿ
^of^inde^peⁿ^d^eⁿ^t^So^uth^Ca^roli^na^aⁿ^{d he}^{r s}^ubse^q^ue^{nt m}^a^rria^g^e^{to a}^{British so}^ldie^r^duriⁿ^g^the^oc^c^upa^ti^oⁿ^of^he^{r h}^o^m^e^towⁿ
^did^no^{t c}^h^aⁿ^g^e^this^s^t^a^t^us^{. H}^o^w^e^ve^r^,^he^r^s^u^bs^e^que^nt^r^e^m^o^v^a^{l to En}^g^l^a^{nd w}^{ith he}^r^h^u^s^b^aⁿ^{d i}ⁿ¹⁷^{82 r}^e^nde^r^e^{d he}^r^a
^Britis^{h s}^u^bje^c^t^w^ithin^the^m^e^aⁿ^ing^of^the^tre^a^t^y^of¹⁷⁹⁴^w^h^ic^{h re}^c^o^gⁿ^iz^e^d^inhe^ri^ta^nc^e^rig^h^ts^f^o^{r Briti}^s^h^s^u^b^j^e^c^t^s^w^ith
^pro^p^e^r^ty^{in the}^Unite^{d Sta}^t^e^s^.
¹⁸^S^CH^UC^K^&^S^MI^TH^,^s^upr^a^f^oot^note^15,^a^t⁴²^-⁶^2.

Apparently, Lynch v. Clarke, an 1844 New York case,¹⁹ was the first case to decide the issue of ²⁰
whether the U.S.-born child of an alien was a U.S. citizen. It held that the U.S.-born child of an
Irish resident of the United States who returned to Ireland after the child’s birth and died without
ever declaring even an intent to be naturalized was a U.S. citizen. It held that the right of ²¹
citizenship was a national right not pertaining to the individual states; that state laws could no ²²²³
longer define U.S. citizenship; and that national laws instead determined citizenship. In
determining the appropriate national law, the court rejected the consensualist doctrine in favor of ²⁴
the traditional English common-law doctrine of jus soli. It rejected the argument that the
application of the common-law doctrine was based on feudal principles inappropriate to the
United States, which had been founded on the principles of consent between the government and
the people to be governed, and found instead that the silence of the Constitution and the federal ²⁵
statutes indicated that Congress approved the adoption of the traditional common-law position.
The court also believed that even if federal laws did not indicate acquiescence in common-law
doctrine, the common-law rule provided a well-defined, unambiguous, reliable rule without ²⁶
confusing recourse to the status of the parents. It held that the national law defined any person
born within the dominions and allegiance of the United States as a citizen, regardless of the status ²⁷
of the parents. Notwithstanding the general acceptance of jus soli, in the minds of many
persons, the issue of automatic citizenship upon birth in the United States to alien parents was
still not to be decided definitively for many years, particularly where the parents were of a
minority race or ethnicity.
Until the Civil Rights Act of 1866 and the Fourteenth Amendment, African-Americans were not ²⁸
considered citizens of the United States. In the case of Dred Scott v. Sandford, the United States
Supreme Court held that African-Americans could not be citizens of the United States, even if
they were free, because they were descended from persons brought to the United States as slaves;
the terms of the Constitution demonstrated that slaves were not considered a class of persons ²⁹
included in the political community as citizens; and the various state laws indicated that
African-Americans had not been considered to be state citizens and that it was widely permitted ³⁰
to treat them as property at the time of the adoption of the federal Constitution. The descendants
of slaves could not have a citizenship right which their ancestors had not had upon the formation
of the Union and which no law had subsequently granted them at the time of the Dred Scott
decision.

¹⁹^{1 Sa}ⁿ^d^f^o^r^d^C^h^.⁵⁸³
²⁰^S^CH^UC^K^&^S^MI^TH^,^s^upr^a^f^oot^note^15,^a^t⁵⁷^.
²¹^{1 Sa}^nf^or^{d C}^h^.^a^t⁶⁴¹^.
²²^{1 Sa}^nf^or^{d C}^h^.^a^t⁶^43-^5.
²³^Id^.
²⁴^{1 Sa}ⁿ^d^f^o^r^d^C^h^{. a}^t⁶⁵^6-⁶⁶³^.
²⁵^Id^.
²⁶^{1 Sa}ⁿ^d^f^o^r^d^C^h^{. a}^t⁶⁵^8.
²⁷^{1 Sa}ⁿ^d^f^o^r^d^C^h^{. a}^t⁶⁶^3.
²⁸^{60 U}^.^{S. (}¹⁹^H^o^w^.⁾³⁹^{3 (}¹⁸⁵⁶⁾^.
²⁹^{60 U}^.^{S. (}¹⁹^H^o^w^.⁾^a^t⁴¹^1.
³⁰^{60 U}^.^{S. (}¹⁹^H^o^w^.⁾^a^t⁴⁰^7-⁴¹⁶^.

Although the primary aim was to secure citizenship for African-Americans, the debates on the
citizenship provisions of the Civil Rights Act of 1866 and the Fourteenth Amendment indicate
that they were intended to extend U.S. citizenship to all persons born in the United States and
subject to its jurisdiction regardless of race, ethnicity or alienage of the parents. The Civil Rights
Act of 1866 declared that “all persons born in the United States and not subject to any foreign ³¹
power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The
Fourteenth Amendment declared that “[a]ll 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 ³²
reside.” The Civil Rights Act of 1866 differs from the Fourteenth Amendment by using the
terms “not subject to any foreign power” and “excluding Indians not taxed.”
During the debates on the act, Senator Trumbull of Illinois, chairman of the committee that
reported the civil rights bill, moved to amend the bill so that the first sentence read, “All persons
born in the United States, and not subject to any foreign power, are hereby declared to be citizens ³³
of the United States without distinction of color.” Senator Cowan of Pennsylvania, who opposed
both the Civil Rights Act of 1866 and the Fourteenth Amendment, asked “whether it will not have
the effect of naturalizing the children of Chinese and Gypsies born in this country?” Senator
Trumbull replied, “Undoubtedly.” The two disagreed as to whether, under the law in existence
prior to the enactment of the Civil Rights Act of 1866, Chinese-Americans were citizens of the
United States. Cowan raised the specter of unfettered Chinese immigration to California, resulting
effectively in something tantamount to a takeover of California by the Chinese empire, if the
proposed language were adopted. Trumbull asked Cowan whether the children born in
Pennsylvania to German parents were not U.S. citizens, to which Cowan replied that Germans
were not Chinese, Australians or Hottentots or the like. Trumbull replied that the law made no
distinction between the children of Germans and Asiatics “and the child of an Asiatic is just as
much a citizen as the child of a European.” Later in the debates, Senator Johnson of Maryland
urged Senator Trumbull to delete the phrase “without distinction of color” because it was
unnecessary since even without the phrase he understood that Trumbull’s proposed amendment
“comprehends all persons, without any reference to race or color, who may be so born.” Trumbull
felt that it was better to retain the phrase to eliminate any doubt or dispute as to the meaning of ³⁴
his amendment.
There was also a debate over whether Indians should be included or excluded from the citizenship ³⁵
provision. Trumbull believed that if the Indians were separated from their tribes and
incorporated into the mainstream community then they already were U.S. citizens under the law.
Senator Lane of Kansas disagreed and felt that a more explicit bill was needed to extend
citizenship to Indians, which he favored. Other Senators wished to exclude Indians not taxed,
which apparently was intended to exclude unassimilated Indians, who were deemed to be mostly ³⁶
living in an uncivilized condition in their tribes. When the exclusion was adopted, Senator

³¹^{C. 3}¹^,^{§ 1}^,¹⁴^S^t^a^t^.^27.
³²^R^a^tif^ie^{d J}^u^ly^{9, 18}^68.
³³^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.⁴⁹^{8 (}¹⁸⁶⁶⁾^.
³⁴^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.⁵⁷^3-⁵⁷^{4 (}¹⁸⁶⁶⁾^.
³⁵^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.⁴⁹^8-⁴⁹^{9 (}¹⁸⁶⁶⁾^.
³⁶^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.⁵⁷^1-⁵⁷^{3 (}¹⁸⁶⁶⁾^.

Henderson of Missouri objected that the citizenship of white persons did not depend on whether
or not they were taxed and that it was unfair to make such a distinction for Indians, particularly ³⁷
since the issue of taxation was irrelevant to the issue of assimilation.
During the debates on the Fourteenth Amendment, Senator Howard of Michigan moved to amend ³⁸
it by adding the first sentence in its present form, minus the phrase “or naturalized.” Senator
Cowan again objected to language that he felt would include races such as the Chinese and ³⁹
prevent California from dealing with the massive Chinese immigrant population as it saw fit. He
again invoked the fear that California would be overrun by Chinese, Pennsylvania by Gypsies. He
believed that the people of different races and cultures could not mingle. Senator Conness of
California replied that he had supported the Civil Rights Act of 1866 and had no problem with
constitutionally guaranteeing the U.S.-born children of Mongolian parents civil rights and equal
protection, his support apparently influenced by his belief that the population of non-European ⁴⁰
immigrants and their descendants would not increase significantly.
There was also debate as to whether Indians should be excluded from the scope of the Citizenship
Clause of the Fourteenth Amendment and whether they were excluded by the phrase “subject to ⁴¹
the jurisdiction thereof.” Apparently most of the Senators supported the idea of excluding
Indians but disagreed as to whether the phrase “excluding Indians not taxed” should be inserted
as it had been in the Civil Rights Act of 1866. Several Senators argued that “subject to the
jurisdiction” meant the full and complete jurisdiction of the United States, and the Indians had
always been considered subject to the jurisdiction of their tribes which were quasi foreign ⁴²
nations; some also felt that the taxation requirement was problematic. Some Senators argued
that “excluding Indians not taxed” was good enough for the Civil Rights Act so it was appropriate
for the Fourteenth Amendment; they also argued that Indians were subject to U.S. jurisdiction for ⁴³
a variety of purposes so the “subject to the jurisdiction” language was insufficiently clear.
Ultimately, the Senate rejected the insertion of “excluding Indians not taxed,” although at least
one Senator said he voted against this insertion because he favored extending citizenship to
Indians and not because he believed that the “subject to the jurisdiction language” excluded ⁴⁴
Indians already.
Despite the clarification in the debates that race, ethnicity and alienage of parents would not
affect the right to citizenship by birth in the United States, the issue concerning the meaning of
the Civil Rights Act of 1866 and the Fourteenth Amendment was not settled until the 1898 case of

³⁷^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.⁵⁷^{1 (}¹⁸⁶⁶⁾^.
³⁸^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.²⁸⁹⁰⁽¹⁸⁶⁶⁾^.
³⁹^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.²⁸⁹⁰^-²⁸⁹¹⁽¹⁸⁶⁶⁾^.
⁴⁰^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.²⁸⁹¹^-²⁸⁹²⁽¹⁸⁶⁶⁾^.
⁴¹^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.²⁸⁹⁰^-²⁸⁹⁷⁽¹⁸⁶⁶⁾^.
⁴²^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.²⁸⁹⁰^{, 2}⁸⁹³^,²⁸⁹⁵^{, 2}⁸⁹⁷⁽¹⁸⁶⁶⁾⁽^r^em^a^r^ks^of^Se^na^tor^H^o^w^a^r^d^of^Mic^h^ig^aⁿ^{, Se}^na^tor
^T^r^u^m^{bull of}^Illi^nois,^Se^na^t^o^{r W}^illia^m^s^of^Ore^g^on).
⁴³^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^{ss. 28}⁹²^{, 2}⁸⁹³^,²⁸⁹⁵⁽¹⁸⁶^{6) (re}^m^a^r^k^{s of}^Se^na^{tor Dool}^ittle^of^Wⁱ^sc^{onsin, Se}^na^t^o^r
^J^ohns^on^of^Ma^r^y^la^{nd, Se}^na^tor^H^e^ndr^ic^k^s^of^I^ndiaⁿ^a⁾^.
⁴⁴^C^ong^{. G}^l^obe^,³⁹^th^Co^ng^{., 1}^st^Se^s^s^.²⁸⁹⁷⁽¹⁸⁶⁶⁾⁽^r^e^m^a^r^k^s^of^Se^na^tor^Sa^uls^b^ur^y^of^D^e^law^a^r^e⁾^.

United States v. Wong Kim Ark.⁴⁵ As the debates about those laws indicate, an underlying problem
appears to have been the attitude that certain alien races and Native Americans, like the African-
Americans in Dred Scott, could not be members of the American political community because
they had not been members of the community that yielded the Declaration of Independence and
the Constitution. The United States Supreme Court discussed the congressional debates described
above, noting that although they were not admissible as evidence to control the meaning of the
Fourteenth Amendment, they were important as an indication of the contemporaneous legal
opinion of jurists and legislators and showed that Congress had explicitly considered the
application of the Fourteenth Amendment to the Chinese (and other U.S.-born children of ⁴⁶
aliens).
The Court traced the history of the statutory and common law regarding jus soli in England and ⁴⁷
America and distinguished another case in which an alleged Chinese-American had been found
not to be a U.S. citizen, noting that the issue had been the insufficiency of proof that the claimant ⁴⁸
had been born in the United States. But where birth in the United States was clear, a child of
Chinese parents was, in the Court’s opinion, definitely a citizen under the Fourteenth ⁴⁹
Amendment, even though Chinese aliens were ineligible to naturalize under then-existing law.
The Court rejected the argument that the child was born subject to the jurisdiction of the Chinese
emperor and outside the jurisdiction of the United States because his allegiance and citizenship
derived from his parents’ remaining subjects to the Chinese emperor under treaties between the ⁵⁰
United States and China and the naturalization laws. It noted and rejected the Slaughter-House
Court’s inaccurate statement that the exceptions to jus soli included the children of consuls and
other aliens generally in addition to the children of ambassadorial-level diplomats and the ⁵¹
children of hostile, occupying forces. The decision alludes to a contemporaneous New Jersey
case that held that a U.S.-born child of Scottish parents domiciled but not naturalized in the
United States was born subject to the jurisdiction of the United States within the meaning of the
Fourteenth Amendment and not subject to the jurisdiction of a foreign country within the meaning ⁵²
of the Civil Rights Act of 1866. The Court held that the Fourteenth Amendment affirmed the
traditional jus soli rule, including the exceptions of children born to foreign diplomats, to hostile
occupying forces or on foreign public ships, and added a new exception of children of Indians ⁵³
owing direct allegiance to their tribes. It further held that the “Fourteenth Amendment ... has
conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to ⁵⁴
constitute a sufficient and complete right to citizenship” and that it is “throughout affirmative

⁴⁵¹⁶^{9 U}^.^S^.⁶⁴⁹⁽¹⁸⁹⁸⁾^.
⁴⁶¹⁶^{9 U}^.^S^.^a^t⁶^97-⁶⁹^9.
⁴⁷¹⁶^{9 U}^.^S^.^a^t⁶^55-⁶⁷^5.
⁴⁸¹⁶^{9 U}^.^S^.^a^t⁶^96-⁶⁹^7.
⁴⁹¹⁶^{9 U}^.^S^.^a^t⁷⁰⁵^.
⁵⁰¹⁶^{9 U}^.^S^.^a^t⁶^94-⁷⁰^5.
⁵¹¹⁶^{9 U}^.^S^.^a^t⁶⁷⁵^,⁶^82-⁶⁸^8.
⁵²¹⁶^{9 U}^.^S^.^a^t⁶⁹²^.
⁵³¹⁶^{9 U}^.^S^.^a^t⁶⁹³^.
⁵⁴¹⁶^{9 U}^.^S^.^a^t⁷⁰³^;^{see a}^l^{so A}^f^ro^yi^{m v.}^R^u^sk^,³⁸^{7 U.}^S^.²⁵³^,²⁶⁶^-²^{67 (}¹⁹⁶⁷⁾^,^w^hⁱ^c^h^no^t^e^d^at^f^o^ot^no^t^e²²^t^h^{at so}^m^e^h^a^ve
^re^fe^rre^{d to t}^h^{is sta}^t^e^m^eⁿ^{t a}^s^a^holding^aⁿ^{d o}^t^he^{rs ha}^v^e^re^f^e^rre^{d to it}^a^s^obite^r^dic^t^um^{, bu}^{t w}^h^ic^{h de}^e^m^e^d^{it e}ⁿ^t^itle^{d t}^o
^g^r^e^a^t^w^e^ig^{ht r}^e^ga^r^d^le^s^s^of^w^h^e^t^he^r^{it w}^a^s^dic^t^um^or^a^hol^ding^.

and declaratory, intended to allay doubts and settle controversies which had arisen, and not to ⁵⁵
impose any new restrictions upon citizenship.”
Even after the Civil Rights Act of 1866, the Fourteenth Amendment and the Wong Kim Ark
decision secured automatic birthright citizenship for all persons born in the U.S. and subject to its
jurisdiction, Native Americans were not considered to be Fourteenth Amendment citizens because
the U.S. Supreme Court determined that they were not born “subject to the jurisdiction” of the
United States. Following earlier cases that had held that Indian tribes and their members were not
subject to the jurisdiction of the United States, and language in the Constitution and the Civil ⁵⁶
Rights Act of 1866 that included only “Indians not taxed,” the Court in Elk v. Wilkins held that
Indians were not citizens of the United States unless they had been naturalized by treaty or by a
federal collective naturalization statute, or taxed or recognized as a citizen by the United States or
a state. At the time of the decision, Native Americans were not eligible to be naturalized on an
individual basis according to the usual naturalization procedures and were only naturalized by ⁵⁷
treaty or statute. The Court found that Native Americans who had not been taxed or naturalized
still owed immediate allegiance to the tribe and were members of an independent political
community and thus were not subject to the jurisdiction of the United States and were not citizens ⁵⁸
of the United States. The argument echoes those in the debates about the Fourteenth
Amendment. John Elk had separated from his tribe and lived “under the jurisdiction of Nebraska”
and had assimilated into mainstream society. Despite these facts, the Court held that he was not a
U.S. citizen nor could he become one in the absence of treaty or federal statutory action regarding ⁵⁹
his tribe. Native Americans are still not Fourteenth Amendment citizens; they are citizens by
virtue of one of the various statutes and treaties naturalizing specific tribes, the Citizenship Act of ⁶⁰
1924 (which was ambiguous regarding those born after the act), the Nationality Act of 1940
(which finally and unambiguously declared all Native Americans born in the United States to be ⁶¹⁶²
U.S. citizens), or the Immigration and Nationality Act.

In recent Congresses there have been various proposals aimed at excluding the children of illegal
aliens and even nonimmigrant aliens from automatic birthright citizenship, in part in order to

⁵⁵¹⁶^{9 U}^.^S^.^a^t⁶⁸⁸^.
⁵⁶¹¹^{2 U}^.^S^.⁹⁴⁽¹⁸⁸⁴⁾^.
⁵⁷^A^nna^W^illia^m^s^Sha^v^e^r^s,^A^Cen^t^{ury o}^f^Devel^o^pⁱ^ng^Ci^tⁱ^zen^s^hⁱ^p^L^a^w^aⁿ^d^t^h^{e Neb}^r^a^s^ka^Iⁿ^f^l^u^eⁿ^{ce: A}^C^eⁿ^t^enⁿⁱ^a^l^E^ssa^y^,
^{70 N}^e^br^a^s^k^a^L^.^R^e^v^.^462,⁴^87-⁴⁸^{9 (}¹⁹⁹¹⁾^.
⁵⁸¹¹²^U.^S.^at¹⁰^2,¹⁰^9.
⁵⁹^U^nde^r^R^oge^r^s^v^.^Be^lleⁱ^,⁴^{01 U}^.^S.⁸¹⁵⁽¹⁹⁷¹⁾^{, t}^h^e^Uⁿⁱ^t^e^d^Sta^t^e^s^S^u^p^r^em^e^C^our^t’^s^c^u^r^r^e^nt^posⁱ^tio^{n a}^p^p^e^a^r^s^{to be}^t^h^a^t
^t^h^{ere are t}^h^{ree t}^y^p^e^{s o}^f^ci^tⁱ^zen^shⁱ^p^:^t^h^{e t}^w^o^d^e^fⁱⁿ^e^dⁱⁿ^t^h^{e F}^o^u^r^t^eent^h^Am^en^d^m^en^t^,^bⁱ^rt^h^andⁿ^a^t^u^ralⁱ^zatⁱ^oⁿⁱⁿ^t^h^e
^Unite^{d S}^t^a^t^e^s^w^h^eⁿ^subje^c^t^to^the^jurisdic^ti^on^the^r^e^o^f^,^aⁿ^dⁿ^on-F^our^te^eⁿ^{th Am}^e^ndm^eⁿ^{t sta}^t^utory^c^itiz^eⁿ^ship,^e^.^g^{., t}^h^e
^ci^tⁱ^zen^shⁱ^p^o^f^Natⁱ^v^e^Am^eri^can^s,^p^e^rsoⁿ^s^b^o^rⁿ^ab^r^o^ad^t^o^U.^S^.^ci^tⁱ^zen^s,^and^p^e^rson^{s bo}^{rn i}ⁿ^P^u^ert^o^Ri^co^,^G^u^a^m^an^d^t^h^e
^Vⁱ^rgⁱⁿ^Islaⁿ^d^s^.^Se^e^J^.^Mic^h^a^e^l^Me^dina^,^The^Pre^s^ideⁿ^tial^Qu^alific^a^tⁱ^{on Cl}^auseⁱⁿ^t^h^{is Bic}^eⁿ^teⁿⁿⁱ^{al Ye}^{ar: The}^Ne^e^d^to
^Elimina^t^e^the^N^a^tur^a^{l B}^o^{rn Ci}^tizeⁿ^Re^q^u^ire^m^eⁿ^t^,^{12 O}^k^la^hom^a^C^ity^Uⁿ^iv^.^L^.^R^e^v^.^253,²^{65 (}¹⁹⁸⁷⁾^.
⁶⁰^A^c^{t of}^J^une^{2, 1}⁹²⁴^{, c}^.²³^3,⁴³^St^a^t^{. 25}^3.
⁶¹^C^.⁸^76,^§²⁰¹⁽^b)^{, 5}⁴^Sta^t^.¹¹^37,¹¹⁵⁸^.
⁶²^C^.⁴^77,^§³⁰¹⁽^a⁾⁽²⁾^,⁶⁶^Sta^t^{. 1}⁶³^,²³^{5 (}¹⁹⁵²⁾^{; c}^odifⁱ^e^d^a^s^a^m^e^nde^{d a}^t^{8 U}^.^S^.^C^.^A^.^§¹⁴⁰¹⁽^b)⁽^S^up^p.¹⁹⁹⁴⁾^.

remove an incentive for aliens to enter the United States illegally or to enter legally on a ⁶³
nonimmigrant visa, then illegally stay beyond the visa period. These proposals take the form of
amendments to the Citizenship Clause of the Fourteenth Amendment or to the Immigration and ⁶⁴
Nationality Act provisions on birthright citizenship and comprise different approaches. ^th
Although such proposals have been introduced in the 109 Congress (see discussion and
footnotes below), none of them have progressed beyond introduction and none of the major
immigration reform bills, such as H.R. 4437, S. 2454, or S. 2611/S. 2612, include such ⁶⁵
provisions.
The proposals for constitutional amendments differ in defining what status a parent must have to ⁶⁶
enable automatic birthright citizenship for a child born in the United States. Proposals would
variously limit jus soli citizenship under the Constitution to persons born to:
• parents both of whom are either citizens or lawful permanent residents (doesn’t ⁶⁷
expressly repeal the current Citizenship Clause);

⁶³^A^lien^s^{are seen}^as^w^illin^g^to^en^te^{r th}^{e Un}ⁱ^t^ed^{States il}^leg^a^ll^yⁱⁿ^o^r^d^e^{r to}^h^a^v^e^{a ch}^il^d^h^e^re,^b^ecau^{se th}^e^y^{realize th}^at
^w^h^en^t^h^{e U.}^S^.^-ci^tⁱ^zen^c^hⁱ^l^d^reach^{es h}ⁱ^s/^h^e^{r m}^a^j^o^ri^t^y^,^h^e^/^s^h^e^ma^y^b^rⁱⁿ^{g i}^m^m^e^dⁱ^at^{e rel}^a^tⁱ^{ves o}^v^{er t}^o^t^h^{e Un}ⁱ^t^e^d^S^t^at^es,
^e^v^eⁿ^if^the^I^m^mⁱ^g^r^a^{tion a}ⁿ^{d N}^a^tu^r^a^liz^a^{tion Se}^r^v^ic^e^de^cⁱ^de^s^to^de^p^o^r^{t the}^pa^r^e^nts^,^or^the^y^c^hoos^e^to^le^a^v^e^,^{in the}ⁱⁿ^te^rⁱ^m^.
^{So t}^h^e^a^u^t^o^m^a^tic^birthrig^{ht g}ⁱ^v^e^{s ille}^g^a^{l a}^lie^{ns a}^f^{oot in t}^h^e^d^oor^to^t^h^e^Unite^d^Sta^t^e^s^aⁿ^d^{its be}^ne^f^{its. 151}^Co^ng^Re^c^.
^E81⁶^(da^ily^e^d^{. A}^p^{ril 2}⁸^,²⁰⁰⁵⁾⁽^R^e^p^.^P^a^ul)^;¹⁴⁹^C^o^ng^.^R^ec.^E5⁴⁷⁽^d^a^ily^e^d^{. Ma}^r^c^{h 21}^{, 2}⁰⁰³⁾⁽^s^ta^te^m^e^{nt of}^R^e^p.^P^a^ul)^;
¹⁴³^C^o^ng.^Re^c^.^H^.^R^.^{8 (}^d^a^ily^e^d^{. Se}^pte^m^be^r^{16, 1}⁹⁹⁷⁾⁽^s^ta^te^m^e^nts^of^R^e^{p. Sm}^{ith of}^T^e^xa^s^a^{nd R}^e^p.^B^ilbr^a^y⁾^{; 142}
^C^ong^{. Re}^c^.^H²⁴⁸^{7 (}^d^a^ily^e^d^{. Ma}^r^c^{h 20}^{, 1}⁹⁹⁶⁾⁽^s^ta^te^m^e^{nt of}^R^e^{p. D}^e^a^l⁾^;¹⁴¹^C^o^ng.^Re^c^.^E1²⁷^-⁸⁽^d^aⁱ^l^y^e^d^{. J}^a^nua^r^y^19,
¹⁹⁹⁵⁾⁽^s^ta^te^m^e^{nt of}^R^e^{p. B}^e^ile^ns^on)^;¹⁴⁰^C^o^ng^.^R^ec.^E⁴⁵⁶⁽^d^a^ily^e^d^{. Ma}^r^c^h^16,¹⁹⁹⁴⁾⁽^s^ta^te^m^e^{nt of}^R^e^{p. T}^a^y^l^or⁾^;¹³⁹
^C^ong^{. Re}^c^.^S¹¹⁹⁹⁷⁽^d^a^ily^e^d^{. Se}^p^t^e^m^be^r^{20, 19}⁹³⁾⁽^s^ta^te^m^e^{nt of}^{Sen. R}^e^id)^,^E²¹^68-²¹⁶⁹⁽^d^a^ily^e^d^.^Se^pte^m^be^r^15,
¹⁹⁹³⁾⁽^s^ta^te^m^e^{nt of}^R^e^{p. G}^a^lle^g^l^y)^{, S}¹⁰³⁷⁸⁽^d^a^ily^e^d^{. A}^u^g^u^s^t^4,¹⁹⁹³⁾⁽^s^ta^te^m^e^{nt of}^Se^{n. R}^e^id)^,^H⁴⁴^{37 (}^d^a^ily^e^d^{. J}^u^ly
^{1, 1}⁹⁹³⁾⁽^s^ta^te^m^e^{nt of}^R^e^{p. G}^a^lleg^l^y⁾^{, H}¹⁰⁰⁵⁽^d^a^ily^e^d^{. Ma}^r^c^h^3,¹⁹⁹³⁾⁽^s^ta^te^m^e^{nt of}^R^e^{p. G}^a^lleg^l^y⁾^{, E4}^{09 (}^d^a^ily^e^d^.
^Fe^br^ua^r^y^{23, 1}⁹⁹³⁾⁽^s^ta^te^m^e^{nt of}^R^e^{p. B}^e^ile^ns^oⁿ⁾^;¹³⁸^Con^g^.^R^ec.^E25^72-^{3 (}^d^a^ily^e^d^{. Se}^p^t^e^m^be^r^10,¹⁹⁹²⁾⁽^s^ta^te^m^e^nt
^of^R^e^{p. G}^a^lle^g^l^y⁾^{, E184}^{7 (}^d^a^ily^{ed. J}^u^ne¹⁶^,¹⁹⁹²⁾⁽^s^ta^te^m^e^{nt of}^R^e^{p. G}^a^lle^g^l^y⁾^{, E44}¹⁽^d^a^ily^e^d^{. Fe}^b^r^ua^r^y^{26, 19}⁹²⁾
^(sta^te^m^e^{nt of}^Re^{p. G}^a^lle^g^l^y⁾^{; 137}^Co^ng^.^R^ec.^H⁸¹^{80 (}^d^a^ily^e^d^{. O}^c^tobe^r²²^,¹⁹⁹¹⁾⁽^s^ta^te^m^e^{nt of}^R^e^{p. G}^a^lleg^l^y⁾^{, H77}⁸⁸
⁽^d^a^ily^e^d^{. O}^c^tobe^r¹⁰^,¹⁹⁹¹⁾⁽^s^ta^t^e^m^e^{nt of}^R^e^{p. D}^o^rⁿ^aⁿ⁾^.
^Se^na^tor^Iⁿ^h^o^f^e^c^ite^{d the}^C^e^nte^r^f^o^r^I^m^mⁱ^g^r^a^{tion St}^udie^s^{, C}^I^S^,^aⁿ^oⁿ^p^r^o^f^{it im}^mⁱ^g^r^a^{tion r}^e^f^o^r^m^or^g^a^niza^tion,^a^nd^the
^N^a^tiona^{l Ce}^nte^r^f^o^{r H}^e^a^lth^Sta^tis^tⁱ^c^s^f^o^{r the}^s^t^a^tis^tic^tha^tⁱⁿ²⁰⁰²^th^e^r^e^w^e^re^a^{bout 3}⁸³^,⁰⁰⁰^ba^bie^s^b^o^r^{n to}^ille^g^a^{l a}^lie^ns^,
^w^h^ic^{h r}^e^pr^e^s^eⁿ^te^{d a}^b^o^u^t^9.5^pe^r^c^eⁿ^{t of}^a^{ll U}^.^S.^bir^t^hsⁱⁿ²⁰⁰²^.¹⁵²^C^ong^{. Re}^c^.^S²⁵⁸²^(da^ily^e^d^{. Ma}^rc^{h 3}⁰^,²⁰^06).
⁶⁴^T^h^e^le^gⁱ^s^l^a^tiv^e^pr^opos^a^l^s^dis^c^us^s^e^{d in}^this^r^e^p^o^r^t^w^e^r^e^s^u^g^g^e^s^t^e^d^{in Sc}^h^u^c^k^&^Sm^ith,^s^upr^a^f^ootn^o^t^e^{15, a}^t¹^16-¹⁴^0,
^a^s^a^m^o^re^a^ppro^p^ria^t^e^la^w^of^c^itiz^eⁿ^ship.^T^h^eⁱ^{r pr}^op^osa^l^{is to}^e^x^c^l^ude^c^h^ild^re^{n of}^ille^g^a^{l a}^nd^no^nim^mⁱ^g^r^aⁿ^{t a}^lie^ns,
^b^ecau^{se t}^h^{e n}^a^tⁱ^oⁿ^h^a^{s no}^t^con^s^ent^e^d^t^o^t^h^e^p^e^rm^an^en^t^resi^d^eⁿ^{ce o}^f^t^h^{e p}^a^ren^t^s.^T^h^{e ch}ⁱ^l^d^{ren o}^f^l^e^gal^resi^d^eⁿ^t^s,ⁱ^.^e.^,
^pe^rm^aⁿ^eⁿ^{t re}^side^{nt a}^lie^{ns, w}^oul^d^be^prov^isi^ona^{l c}^itiz^eⁿ^{s a}^t^birt^{h a}ⁿ^{d u}ⁿ^til^theⁱ^{r m}^a^jority^{. T}^h^e^y^note^tha^t^the^Uⁿ^ite^d
^King^dom^{, w}^h^ic^{h sha}^r^e^s^c^o^m^m^{on orig}^{ins w}^{ith o}^u^{r c}^o^m^m^{on la}^w^o^f^c^itiz^eⁿ^ship^{, ha}^{s a}^d^opte^d^la^w^s^w^h^ic^{h d}^oⁿ^o^{t e}^x^te^nd
^birthr^ig^{ht c}^itiz^eⁿ^sh^{ip t}^o^c^h^ildreⁿ^of^ille^g^a^{l or no}^nim^m^ig^ra^{nt a}^lie^ns.
⁶⁵^Tw^{o a}^m^e^ndm^eⁿ^{ts w}^e^r^e^subm^itte^{d to}^the^H^ouse^Rule^{s C}^o^m^m^itt^e^e^t^o^be^pe^rm^itte^{d a}^s^f^l^{oor a}^m^e^ndm^eⁿ^{ts f}^o^{r H.R.}⁴⁴^37,
^but^ne^ithe^r^w^a^{s inc}^l^u^d^e^dⁱⁿ^t^h^e^fⁱ^na^{l rule}^,^see^H^.^R^e^{pt. 1}^09-³⁵^{0 (}²⁰⁰⁵⁾^.^Se^e^Deal^#⁴⁰^,^w^h^o^s^{e su}^m^m^ar^y^st^at^{es t}^h^atⁱ^t
^“exer^ci^{ses Co}ⁿ^g^{ress’ p}^l^en^ar^y^j^u^ri^sdⁱ^c^tⁱ^o^{n o}^v^{er i}^m^mⁱ^gratⁱ^oⁿ^a^{nd w}^o^rk^s^w^{ithin t}^h^e^Co^nstit^utio^na^{l b}^o^u^{nds e}^s^ta^blis^he^{d i}ⁿ^th
^the¹⁴^Am^e^ndm^eⁿ^{t, to de}^fⁱ^ne^li^m^{its on c}^itiz^eⁿ^ship^by^m^a^nda^ting^birthr^ig^{ht c}^itiz^eⁿ^sh^ip^be^g^r^aⁿ^te^d^oⁿ^ly^{to the}^c^h^il^dreⁿ
^of^U^.^{S. c}^itiz^eⁿ^s^or^pe^r^m^aⁿ^eⁿ^{t le}^g^a^{l a}^lie^ns^”^a^nd^P^a^ul^#2^{4, w}^hos^e^s^u^m^m^a^r^y^s^t^a^t^e^s^tha^t^{it “}^p^r^o^hi^bits^aⁿ^y^pe^r^s^{on bor}^{n a}^f^te^r
^the^da^te^of^the^ra^tif^ic^a^tion^of^this^a^r^tic^le^{to a}^m^o^the^r^a^nd^f^a^the^r^,^ne^it^he^r^of^w^hom^is^a^c^itiz^eⁿ^of^the^U^.^{S. n}^o^r^a^pe^r^s^on
^w^{ho ow}^ns^pe^r^m^aⁿ^eⁿ^{t a}^lle^gⁱ^aⁿ^c^e^t^o^the^U^.^{S., f}^r^om^be^ing^a^c^itiz^eⁿ^of^the^U^.^S.^or^of^aⁿ^y^Sta^t^e^s^o^le^l^y^by^r^e^a^s^{on of}^bir^t^{h i}ⁿ
^the^U.S.”^A^v^a^ila^ble^a^t^http:^//www.rule^s.h^ouse^.^g^o^v^/^109/^a^m^e^ndsum^m^/^109a^m^nd_^hr1⁴⁴^37.^htm^.^Se^na^to^{r Cob}^u^rn^subm^itte^d
^aⁿ^a^m^eⁿ^d^m^eⁿ^{t, sim}^ila^{r to the}^pr^o^posa^l^{s de}^sc^ribe^dⁱⁿ^the^te^x^t^f^o^{r f}^ootn^o^te⁷⁸^be^low^,^f^o^{r c}^onside^r^a^tio^{n d}^u^ring^t^h^e^Se^na^te
^Judicⁱ^a^r^y^Co^m^m^itte^e^m^a^r^k^{-up of}^Chaⁱ^rm^aⁿ^Spe^c^t^e^{r’s i}^m^mⁱ^g^r^a^{tion re}^f^o^r^m^{bill, b}^u^{t t}^h^{is w}^a^{s not u}^ltim^a^t^e^l^y^inc^l^ude^dⁱⁿ
^the^re^por^te^{d b}^ill^{or i}ⁿ^S.²⁴⁵⁴^or^{S. 2}⁶¹¹^/S.²⁶¹²^{, t}^h^e^so-c^a^lle^{d He}^g^e^l-Ma^rtine^z^c^o^m^p^ro^mⁱ^se^.
⁶⁶^One^sho^u^ldⁿ^o^te^t^h^a^t^the^c^o^nstit^u^tiona^{l C}^itiz^eⁿ^shi^p^Cla^u^se^prov^ide^s^the^ba^se^line^f^o^r^bⁱ^rthrig^h^t^c^itiz^eⁿ^ship—C^ong^re^ss
^c^aⁿ^pr^ov^ide^f^o^r^br^oa^de^r^ba^s^e^s^by^s^t^a^t^ute^.
⁶⁷^H.^J.^Res.⁴^,¹⁰⁵^th^C^ong^{. (}¹⁹⁹⁷⁾^;^H^.^J^.^R^e^s^.¹⁹^0,¹⁰⁴^th^C^ong^{. (}¹⁹⁹⁶⁾^.

• mothers who are legal residents (expressly repeals the current Citizenship ⁶⁸
Clause);
• mothers who are citizens or legal residents (expressly repeals the current ⁶⁹
Citizenship Clause);
• mothers or fathers who are citizens (doesn’t expressly repeal the current ⁷⁰
Citizenship Clause);
• mothers or fathers who are citizens or persons who owe permanent allegiance to ⁷¹
the United States (doesn’t expressly repeal the current Citizenship Clause);
• mothers or fathers who are legal residents (expressly repeals the current ⁷²
Citizenship Clause);
• mothers or fathers who are citizens or lawful permanent residents (doesn’t ⁷³
expressly repeal the current Citizenship Clause); or
• mothers or fathers who are citizens or are lawfully in the United States or have
lawful status under the immigration laws of the United States (doesn’t expressly ⁷⁴
repeal the current Citizenship Clause).
Even as a baseline for defining citizenship, some of the distinctions drawn are unclear. The term
“legal resident” used in some of the proposals would appear to implicitly include citizens,
nationals, and lawful permanent residents, but it may also be interpreted to include certain
categories of nonimmigrants who typically reside in the United States for several years and other
aliens permanently residing under the color of law. Other proposals refer to citizens, but not to
nationals who are not citizens (e.g., American Samoans). One type of proposal refers to persons
who owe permanent allegiance to the United States, which is how the INA defines nationals.
Therefore, for the sake of clarity, proposed language that includes an explicit enumeration of the
applicable categories of parents—citizens, nationals, lawful permanent residents, nonimmigrants
(if any) may be preferable to language that only explicitly refers to parents who are legal residents
or to citizens without mentioning nationals. Some proposals focus on the mother as the conduit
for birthright citizenship, excluding a father who is a U.S. citizen or legal resident from being the
conduit for such citizenship. All of these proposals would only apply prospectively to those born
after the date of the ratification of an amendment by the legislatures of three-fourths of the states
within seven years of its submission for ratification and all provide that Congress shall have the
power to enforce the article by appropriate legislation.
Some of the above proposals to amend the Constitution have parallel proposals to amend the INA
to conform to the new baseline of the Citizenship Clause once it is amended, including legislation
to limit citizenship by birth in the United States to persons born to

⁶⁸^H^.^J^.^R^e^s^.³⁵^7,¹⁰²^nd^C^ong^{. (}¹⁹⁹²⁾^.
⁶⁹^H.^J.^Res.⁶⁴^,¹⁰⁴^th^C^o^ng^{. (}¹⁹⁹⁵⁾^;^H^.^J^.^R^e^s^.¹²^9,¹⁰³^rd^C^ong^{. (}¹⁹⁹³⁾^.
⁷⁰^H.^J.^Res.⁶⁰^,¹⁰⁵^th^C^o^ng^{. (}¹⁹⁹⁷⁾^;^H^.^J^.^R^e^s^.^88,¹⁰⁴^th^C^ong^{. (}¹⁹⁹⁵⁾^;^H^.^J^.^R^e^s^.³⁹^6,¹⁰³^rd^C^ong^{. (}¹⁹⁹⁴⁾^.
⁷¹^H.^J.^Res.⁴⁶^,¹⁰⁹^th^C^o^ng^{. (}²⁰⁰⁵⁾^;^H^.^J^.^R^e^s^.^42,¹⁰⁸^th^C^ong^{. (}²⁰⁰³⁾^.
⁷²^H.^J.^Res.⁵⁶^,¹⁰⁴^th^C^o^ng^{. (}¹⁹⁹⁵⁾^;^H^.^J^.^R^e^s^.¹¹^7,¹⁰³^rd^C^ong^.,¹^st^{. Se}^s^s^.⁽¹⁹^93).
⁷³^H.^J.^Res.⁴¹^,¹⁰⁹^th^C^o^ng^{. (}²⁰⁰⁵⁾^;^H^.^J^.^R^e^s^.^44,¹⁰⁸^th^C^ong^{. (}²⁰⁰³⁾^.
⁷⁴^H.^J.^Res.⁵⁹^,¹⁰⁷^th^C^o^ng^{. (}²⁰⁰¹⁾^;^H^.^J^.^R^e^s^.^10,¹⁰⁶^th^C^ong^{. (}¹⁹⁹⁹⁾^;^H^.^J^.^R^e^s^.^26,¹⁰⁵^th^C^ong^{. (}¹⁹⁹⁷⁾^;^H^.^J^.^R^e^s^.^93,¹⁰⁴^th
^C^ong^{. (}¹⁹⁹⁵⁾^{; H}^.^J^.^R^e^s^.³^40,¹⁰³^rd^C^ong^{. (}¹⁹⁹⁴⁾^.

• mothers who are legal residents⁷⁵ or
• mothers who are citizens or legal residents.⁷⁶
By their own terms, these types of statutory amendments would not take effect until a related
constitutional amendment had been ratified and would only apply to those born after the date of
ratification. These statutory proposals have the same problems as the parallel constitutional
amendments.
One set of proposals would limit birthright citizenship in a way that its proponents believe would
not necessitate a constitutional amendment (see discussion in the following section). It essentially
would statutorily define who is born “subject to the jurisdiction” of the United States under the
Citizenship Clause notwithstanding the U.S. Supreme Court holdings in United States v. Wong
Kim Ark. These proposals variously define:
• persons, whose birth mothers are not citizens, nationals, or lawful permanent
residents of the United States and who are citizens/nationals of another country
of which a natural parent is a citizen/national, as not being born subject to the
jurisdiction of the United States within the meaning of the Fourteenth
Amendment, but rather as being born subject to the jurisdiction of the other ⁷⁷
country;
• persons, whose birth mothers are not citizens or lawful permanent residents of
the United States and who are citizens/nationals of another country of which a
natural parent is a citizen/national, as not being born subject to the jurisdiction of
the United States within the meaning of the Fourteenth Amendment, but rather as ⁷⁸
being born subject to the jurisdiction of the other country;
• persons born subject to the jurisdiction of the United States as including persons
born in wedlock to a mother or father who is a U.S. citizen, a U.S. national, or a
lawful permanent resident who maintains primary residence in the United States,
or persons born out of wedlock to a mother who is a U.S. citizen, a U.S. national,
or a lawful permanent resident who maintains primary residence in the United ⁷⁹
States;
• persons born subject to the jurisdiction of the United States as including persons
born in wedlock to a mother or father who is a U.S. citizen, a U.S. national, or a
lawful permanent resident who maintains primary residence in the United States,

⁷⁵^H.^R^.³⁶⁰⁵^,¹⁰²^nd^C^ong^{. (}¹⁹⁹¹⁾^.
⁷⁶^H.^R^.⁷⁰^5,¹⁰⁴^th^C^o^ng^{. (}¹⁹⁹⁵⁾^{; H}^.^R^.¹¹⁹¹^{, 1}⁰³^rd^C^ong^{. (}¹⁹⁹³⁾^.
⁷⁷^H.^R^.¹⁹^0,¹⁰⁷^th^C^o^ng^{. (}²⁰⁰¹⁾^{; H}^.^R^.³¹^9,¹⁰⁶^th^C^ong^{. (}¹⁹⁹⁹⁾^;^H^.^R^.³⁴⁶^{, 1}⁰⁵^th^C^o^ng^{. (}¹⁹⁹⁷⁾^{; H}^.^R^.³⁷⁵^{, §}³^01,¹⁰⁴^th
^C^ong^{. (}¹⁹⁹⁵⁾^{. T}^h^e^s^e^bil^l^s^s^p^e^cⁱ^f^y^tha^t^the^pe^r^s^onsⁱⁿ^que^s^tⁱ^{on a}^r^e^eⁱ^the^r^b^o^rⁿ^cⁱ^tⁱ^z^eⁿ^s^/^na^ti^ona^ls^of^aⁿ^o^t^he^r^c^o^uⁿ^tr^y^of
^w^h^ic^{h e}^ithe^r^of^his^/^he^r^na^tur^a^l^pa^r^e^nts^is^a^c^itiz^eⁿ^/na^tⁱ^ona^l^or^eⁿ^title^d^u^p^oⁿ^a^p^plic^a^tio^{n t}^o^be^c^o^m^e^a^c^itiz^eⁿ^/na^tio^na^l^of
^tha^t^ot^he^r^c^o^untr^y^.
⁷⁸^H^.^R^.²¹⁶²^{, § 70}^{1, 10}⁴^th^C^ong^{. (}¹⁹⁹⁵⁾^;^H^.^R^.⁴⁹³⁴^{, §}⁷^01,¹⁰³^rd^C^o^ng^{. (}¹⁹⁹⁴⁾^{; H}^.^R^.³⁸⁶²^{, §}⁴^01,¹⁰³^rd^C^o^ng^{. (}¹⁹⁹⁴⁾^;
^S.¹³⁵¹^{, § 10}^{01, 10}³^rd^Co^ng^{. (1}⁹⁹^{3). T}^h^e^s^e^{bills s}^p^e^cⁱ^fy^tha^t^the^pe^rsonsⁱⁿ^q^u^e^s^tio^{n a}^r^e^e^ithe^r^bor^{n c}ⁱ^tiz^eⁿ^s/na^tio^na^{ls of}
^a^nothe^{r c}^o^uⁿ^try^of^w^h^ic^{h e}^ithe^r^o^f^his/he^{r na}^tura^l^pa^re^{nts is a}^c^itiz^eⁿ^/na^tⁱ^ona^l^or^eⁿ^t^itle^d^up^on^a^ppl^ic^a^{tion t}^o^be^c^o^m^e^a
^c^itiz^eⁿ^/na^tio^na^{l of}^tha^t^ot^he^{r c}^o^uⁿ^t^ry^.
⁷⁹^H^.^R^.³⁹³⁸^{, § 70}^{1, 10}⁹^th^C^ong^{. (}²⁰⁰⁵⁾^;^H^.^R^.⁴³¹³^{, §}³^22,¹⁰⁹^th^C^o^ng^{. (}²⁰⁰⁵⁾^{; H}^.^R^.⁶⁹^8,¹⁰⁹^th^C^ong^.⁽²⁰⁰⁵⁾^;^H^.^R^.
¹⁵⁶^{7, 10}⁸^th^C^ong^{. (}²⁰⁰³⁾^;^H^.^R^.⁷³^{, 1}⁰⁶^th^C^o^ng^{. (}¹⁹⁹⁹⁾^{; H}^.^R^.⁷^,¹⁰⁵^th^C^ong^{. (}¹⁹⁹⁷⁾^{; H}^.^R^.¹³⁶³^,¹⁰⁴^th^C^ong^{. (}¹⁹⁹⁵⁾^.^A^ll
^b^u^t^t^h^{e l}^a^st^o^f^t^h^{ese d}^e^fⁱⁿ^e^{s “}^w^ed^l^o^{ck” as n}^o^tⁱⁿ^cl^u^dⁱⁿ^{g co}^mm^oⁿ^-^l^a^w^marri^age.

or persons born out of wedlock to a mother who is a U.S. citizen, a U.S. national,
or a lawful permanent resident who maintains primary residence in the United
States, or to a father who is a U.S. citizen, a U.S. national, or a lawful permanent
resident who maintains primary residence in the United States, but only if
paternity has been established by clear and convincing evidence and the father ⁸⁰
has satisfied certain requirements;
• persons born subject to the jurisdiction of the United States as including persons
born in the United States to a mother or father who is a national of the United
States (this would include citizens and non-citizen nationals) or a lawful ⁸¹
permanent resident who maintains his or her residence in the United States.
The first two of these proposals would avoid the problem of rendering a person stateless by
permitting persons born to illegal alien or nonimmigrant mothers to be citizens at birth if they ⁸²
have no viable claim to citizenship in another country. These two proposals could result in a
scenario in which a person may be born in the United States to a mother who is a nonimmigrant
or illegal alien and a father who is a U.S. citizen, national or lawful permanent resident (in or out
of wedlock) and not be born a U.S. citizen because that person has a claim to citizenship in the
mother’s country. The third proposal does not permit a person born out of wedlock to a father
who is a U.S. citizen, national or lawful permanent resident to be considered born subject to the
jurisdiction of the United States and does not provide for the acquisition of U.S. citizenship by
such a person through a U.S. citizen father. Without conforming amendments to § 309 of the INA,
this proposal would mean that persons born abroad out of wedlock to a U.S. citizen father and an
alien mother would have a process by which they could be deemed U.S. citizens at birth and,
paradoxically, persons born in the U.S. of similar parentage would not. These proposals are all
therefore arguably unconstitutional on due process/equal protection grounds as well as ⁸³
Citizenship Clause grounds. The fourth proposal avoids such issues by providing for the
birthright citizenship of a person born out-of-wedlock to a father who is a U.S. citizen, national,
or lawful permanent resident as long as requirements like those of INA § 309 are satisfied. The

⁸⁰^H.^R^.¹³^3,¹¹⁰^th^Con^g^.⁽²⁰⁰⁷⁾^.^T^h^{e req}^uⁱ^rem^eⁿ^t^{s t}^h^at^m^u^st^b^e^satⁱ^s^fi^ed^b^y^t^h^{e o}^u^t^-^o^f^-w^ed^l^o^ck^f^a^t^h^{er a}^r^{e t}^h^{e same as}
^t^h^{e req}^uⁱ^r^em^en^t^s^t^h^at^m^u^st^b^e^satⁱ^s^fⁱ^ed^f^o^{r t}^r^an^smⁱ^ssi^oⁿ^o^f^ci^tⁱ^zen^shⁱ^p^t^o^{a ch}ⁱ^l^d^b^o^rⁿ^ab^r^o^ad^and^ou^t^-^o^f^-^w^ed^l^o^{ck t}^o^a
^{U.S. citizen}^f^a^th^{er u}ⁿ^d^e^{r INA}^§³⁰⁹⁽^{a) (}⁸^U.S.C^.^§¹⁴⁰⁹^(a)).
⁸¹^S.²¹^17,^T^itle^V^,¹⁰⁹^th^C^ong^{. (}²⁰⁰⁵⁾^.
⁸²^Iⁿ^te^rⁿ^a^tⁱ^ona^{l la}^w^g^e^ne^r^a^ll^y^vⁱ^ew^{s s}^t^a^t^e^l^e^s^sⁿ^e^s^s^a^s^unde^sⁱ^r^a^ble^aⁿ^d^s^e^e^k^s^{to pr}^e^v^eⁿ^{t or}^dⁱ^s^c^our^a^g^e^le^a^v^ing^pe^r^s^ons
^unp^r^o^te^c^t^e^d^by^a^{nd una}^ll^ie^{d w}^ith^aⁿ^y^na^{tion. T}^h^e^Uⁿ^ite^d^Sta^t^e^s^a^p^p^a^r^e^ntly^is^{not a}^pa^r^t^y^{to a}ⁿ^y^c^onv^entio^ns^or
^agree^m^en^t^s^wⁱ^t^h^bⁱⁿ^dⁱⁿ^g^ob^lⁱ^g^atⁱ^oⁿ^s^t^o^p^r^even^t^st^at^el^essn^ess.^Itⁱ^s^uⁿ^c^l^{ear w}^h^et^h^e^{r su}^ch^an^o^b^lⁱ^g^atⁱ^oⁿ^exi^s^t^s^uⁿ^d^e^r
^c^u^s^t^om^a^r^y^inte^rna^tiona^{l la}^w^,^a^lth^oug^{h s}^o^m^e^a^u^thoritie^s^a^r^g^u^e^tha^tⁱ^t^doe^s^,^gⁱ^v^e^{n t}^h^e^ne^a^r-u^niv^e^rs^a^l^c^onde^mⁿ^a^tion^of
^sta^t^e^l^e^ssne^{ss in the}^la^w^s^of^m^aⁿ^y^na^tio^ns^aⁿ^d^{in v}^a^rio^u^{s i}ⁿ^te^rna^tioⁿ^a^{l a}^g^re^e^m^eⁿ^ts.^Se^e^{8 G}^o^r^d^oⁿ^,^Maⁱ^l^m^a^{n &}^Y^a^le^-
^L^o^e^h^r^,^s^upr^a^f^oot^no^te^{4, a}^t^§^§⁹¹^.⁰¹^[³^]^[^e^]^a^nd¹⁰^0.⁰²^[²^]^[^b^]^[^v^]^;^J^.^M^Spe^c^t^a^r^,^T^o^B^an^or^N^o^t^to^Baⁿ^an^Am^e^r^ic^an
^T^a^lⁱ^b^aⁿ^?^R^evo^ca^tⁱ^oⁿ^o^f^Ci^tⁱ^zen^s^hⁱ^p^&^S^t^a^t^el^essn^{ess i}ⁿ^a^St^a^t^ecen^t^rⁱ^c^S^y^st^em^{, 39 C}^a^l^.^W^.^L^.^R^e^v^.²⁶³^,²⁹^6-³⁰¹⁽²⁰⁰³⁾^;
^Ch^ri^stⁱⁿ^{e Bi}^aⁿ^ch^eri^a^,^Re^s^t^orⁱ^ng^t^h^e^Rig^h^{t t}^o^H^a^v^e^Ri^gh^ts^:^St^ate^l^e^s^sⁿ^e^s^s^an^{d Alie}^na^ge^J^u^rⁱ^s^d^ic^ti^onⁱⁿ^Ligh^{t o}^f^Ab^u-
^zein^eh^V.^Fe^d^e^ra^{l L}^a^bo^ra^t^o^ries,^Iⁿ^c.^{, 1}¹^A^m^{. U}^.^J^.^{Int’l L}^.^&^P^o^l’y¹⁹⁵^{, 1}⁹⁸^-²⁰^{2 (}¹⁹^96);^Milt^on^{C. L}^o^re^nz^{, J}^r^.,^No^te:
^Alie^ns^—Reⁿ^uncⁱ^a^tioⁿ^{of N}^a^tio^nal^ity^Le^av^e^s^I^ndivⁱ^du^al^Sta^t^e^l^e^s^s^an^{d Ex}^c^l^u^dab^le^as^Aⁿ^y^Alieⁿ^,^{46 T}^u^{l. L}^.^R^e^v^.⁹⁸^4,
⁹⁸⁹^-⁹^{90 (}¹⁹⁷²⁾^.
⁸³^T^h^{e U.}^S^.^S^u^p^r^em^{e Co}^u^r^t^h^a^s^u^phel^d^t^h^e^p^r^o^vⁱ^sⁱ^oⁿ^s^f^o^{r t}^r^an^smⁱ^ssi^oⁿ^o^f^ci^tⁱ^zen^shⁱ^p^b^y^{a U.}^S^.^ci^tⁱ^zen^f^a^t^h^{er t}^o^{a chi}^l^d
^bor^{n o}^u^t^of^w^e^dloc^k^outsⁱ^de^the^Uⁿ^ite^{d S}^t^a^t^e^s^a^s^c^ons^is^te^{nt w}^{ith c}^ons^tit^uti^ona^{l e}^q^ua^l^pr^ote^c^tioⁿ^de^s^p^ite^the^f^a^c^t^tha^t
^t^h^ei^{r requ}ⁱ^r^em^en^t^s^are^m^o^{re st}^riⁿ^g^eⁿ^t^t^h^{an t}^h^o^s^{e f}^o^{r t}^r^an^smⁱ^ssi^oⁿ^b^y^{a U.}^S^.^ci^tⁱ^zen^m^o^t^h^{er t}^o^{a ch}ⁱ^l^d^bo^rnⁱⁿ^t^h^{e sam}^e
^ci^rcu^m^st^an^ces.^N^guy^eⁿ^v^.^I^m^mⁱ^gr^atioⁿ^an^{d N}^a^t^u^r^a^lⁱ^z^a^ti^on^Se^r^v^ic^e^,⁵³³^U.^S^.⁵³⁽²⁰⁰¹⁾^.^H^o^w^e^v^e^r,ⁱⁿ^t^h^at^case,^t^h^ere
^w^a^{s a}^possibility^f^o^{r tra}ⁿ^sm^{ission; the}^m^o^re^string^eⁿ^{t re}^q^u^ire^m^eⁿ^{ts w}^e^r^e^substa^ntia^lly^re^la^te^{d to the}^c^ong^re^ssiona^l
^pur^pose^of^re^quirⁱ^ng^a^de^m^onstra^b^le^b^oⁿ^d^be^tw^e^eⁿ^the^U.S.^c^itiz^eⁿ^f^a^the^r^a^{nd c}^h^il^{d. T}^h^e^a^b^se^nc^e^of^aⁿ^y^possibility^of
^ba^sing^c^itiz^eⁿ^ship^oⁿ^t^h^e^f^a^the^{r’s c}^itiz^eⁿ^ship,^na^ti^ona^lity^{, or re}^sideⁿ^t^sta^t^us^m^a^y^be^unc^onstit^uti^ona^l.

fifth proposal listed above would not raise these constitutional issues because it makes no
distinctions based on the gender of the parent.
One proposal in the 109^th Congress, without statutorily defining “born subject to the jurisdiction”
of the United States, would provide that, with respect to a person born after the date of the
enactment of the proposal, the person shall not be a national or citizen at birth under section 301
of INA (8 U.S.C. § 1401) unless at least one of the parents is, at the time of birth, a citizen or ⁸⁴
national of the United States or an alien lawfully admitted for permanent residence.
A final legislative proposal is sui generis; it does not purport to be a congressional interpretation
of the Citizenship Clause but is a limitation on H-visa holders and would be unconstitutional
under the Citizenship Clause. Under this proposal, children born to a parent who is an
nonimmigrant employee under § 101(a)(15)(H) of the INA would not be U.S. citizens by birth in ⁸⁵
the United States unless the other parent is a U.S. citizen or lawful permanent resident.
The legislation discussed above is intended to discourage unlawful entry and presence of aliens in
the United States and the anomaly of automatically granting citizenship to persons who, despite
birth in the United States, are not raised and do not act in accordance with allegiance to the
United States. It may accomplish this but may also throw into question the ultimate status of
many born here, that is, persons whose parents are in the United States initially on temporary
visas but ultimately obtain lawful permanent status. Also, the additional record-keeping necessary
to document who becomes a citizen automatically upon birth in the United States may present
bureaucratic challenges, particularly since birth records are a matter for State laws.
As noted above, proponents of certain proposals to amend the INA argue that congressional
interpretation of the Citizenship Clause to limit automatic birthright citizenship may be
permissible without an accompanying constitutional amendment because, under § 5 of the
Fourteenth Amendment, Congress has the power to “enforce, by appropriate legislation, the
provisions of this article.” In a still evolving area of law, the United States Supreme Court has
held that Congress has some power to define the substance of the rights that are protected under
the amendment and may even, under some circumstances, legislate contrary to judicial decisions
by going beyond judicial decisions defining such rights in order to enforce the amendment.
In Katzenbach v. Morgan,⁸⁶ the Court found that Congress could define the substantive scope of
equal protection for the purpose of determining whether state laws violate equal protection. The
Court rejected the dissent’s concern that Congress could legislate to dilute the equal protection
and due process decisions of the Court, saying that Congress may adopt measures only to enforce ⁸⁷
Fourteenth Amendment rights, not to restrict, abrogate or dilute them. However, Congress has

⁸⁴^H^.^R^.³⁷⁰⁰^{, § 20}^{1, 10}⁹^th^C^ong^{. (}²⁰⁰⁵⁾^.
⁸⁵^H^.^R^.³⁵³⁴^,^§²¹³⁽^b)^,¹⁰⁸^th^C^ong^.⁽²⁰⁰³⁾^.
⁸⁶³⁸^{4 U}^.^S^.⁶⁴¹^,⁶^54-⁶⁵^{6 (}¹⁹⁶⁶⁾^.^{See a}^l^so^,^C^ity^{of R}ⁱ^c^h^m^o^{nd v}^.^J^.^A.^C^r^os^{on C}^o^.^,¹^{09 S.C}^t^{. 70}^{6, 71}^7-²⁰^,⁷²⁶^-⁷²⁷
⁽¹⁹⁸⁹⁾^;^Full^ilov^e^v^.^Kl^utznic^k^,⁴⁴^{8 U}^.^S.⁴^48,⁴^76-^8,⁴⁸^2-^{4 (}¹⁹⁸⁰⁾^;^City^{of R}^o^me^v^.^Unite^{d S}^t^ate^s^,⁴⁴^{6 U}^.^S.¹^{56 (}¹⁹⁸⁰⁾^;
^O^r^e^{gon v}^.^M^itc^he^ll^{, 4}⁰⁰^U^.^S.¹¹²⁽¹⁹⁷⁰⁾^{; T}^HE^C^O^N^S^T^I^T^U^T^I^ON^OF^T^H^E^U^NI^T^E^D^S^TA^TE^S^O^F^A^ME^R^I^CA^:^A^NAL^YS^I^S^A^ND
^I^N^TER^PR^E^T^A^TIO^N^{, S. Doc}^.^No.¹⁰⁸^-^17,²⁰⁴¹^-2⁰⁴^{7 (2}⁰⁰^{2 &}²⁰⁰⁴^S^u^pp.)^(Joh^nny^{H. Killia}^n,^G^e^org^e^A^.^Coste^{llo &}
^Kenⁿ^e^t^h^R.^T^h^o^m^{as ed}^s.^{) [}^h^erei^naf^t^{er C}^ON^S^T^I^T^UT^I^ON^A^NNO^T^A^T^E^D^].
⁸⁷³⁸⁴^U.^S.^at⁶⁵^1,^n.¹⁰^.^Se^e^als^o^Mⁱ^s^sⁱ^s^sⁱ^{ppi U}ⁿ^iv^.^for^W^o^m^e^{n v}^.^H^ogaⁿ^{, 45}⁸^U^.^{S. 71}^{8, 73}^1-⁷³³⁽¹⁹⁸²⁾^.

passed legislation that purported to overrule the Court’s expansion of the right against self-
incrimination and the right-to-counsel and expressly relied on Katzenbach v. Morgan, although
the Court, contemporaneously with the legislation, changed course to adopt a view in alignment ⁸⁸
with that of Congress. Congressional abortion opponents have tried to initiate legislation ⁸⁹
restricting the right that the Court has derived from the Constitution. Other recent cases show
that the Court will not always defer to Congress’s determination as to what legislation is ⁹⁰
appropriate to enforce the provisions of the Fourteenth Amendment.
Thus, there may be an issue as to whether Congress could define “subject to the jurisdiction
thereof” in a manner that would curtail a long-assumed right of persons born to aliens in the
United States to be U.S. citizens regardless of the immigration status of their parents. One could
argue that Congress has no power to define “subject to the jurisdiction” and the terms of
citizenship in a manner contrary to the Court’s understanding of the Fourteenth Amendment as
expressed in Wong Kim Ark and Elk, particularly since that understanding includes a holding that
the Fourteenth Amendment did not confer on Congress a right to restrict the effect of birth on
citizenship as declared by the Constitution. In other words, there may be a distinction between the
existence of a right under the Fourteenth Amendment (e.g., citizenship), which depends on the
text and judicial interpretation, and the implications or scope of the right, which is subject to
some degree of congressional regulation. However, since Congress has broad power to pass
necessary and proper legislation to regulate immigration and naturalization under the ⁹¹
Constitution, Art. I, § 8, cls. 4 & 18, arguably Congress has the power to define “subject to the
jurisdiction thereof” for the purpose of regulating immigration.
The federal courts arguably support an interpretation of the Constitution that would foil those
who attempt to gain an immigration advantage by breaking U.S. laws, although Wong Kim Ark
made no distinction between lawfully and unlawfully present alien parents, nor between legal
resident and nonimmigrant aliens. However, the Wong Kim Ark Court did not have to make such
distinctions, because Wong’s parents were legal resident aliens. Federal appellate courts have
upheld the refusal by the Immigration and Naturalization Service (I.N.S.) to stay the deportation
of illegal aliens merely on the grounds that they have U.S.-citizen, minor children, because to do
so would be unfairly to grant an advantage to aliens who successfully flouted U.S. immigration
laws long enough to have a child born in the United States over those aliens who followed the ⁹²
law, and would turn the immigration statute on its head. Although the mere fact of the existence
of U.S.-citizen, minor children would not be sufficient to prevent the deportation of illegal alien
parents, extreme hardship to the children caused by the deportation of the parents is a factor to be ⁹³
considered in the discretionary suspension of deportation. The United States Supreme Court has

⁸⁸^C^ONS^T^I^T^U^T^I^ON^A^NNOT^AT^E^D^,^s^upr^a^f^o^o^t^no^t^e⁸⁶^,^at²⁰⁴²^-³^{, n}^.¹⁹⁹⁰^.
⁸⁹^Id^{. a}^t²⁰⁴⁴^{, n}^.¹⁹⁹⁹^.
⁹⁰^Id^{. a}^t²⁰^44-^7.
⁹¹^Fiall^o^v^.^Be^ll^,⁴³^{0 U}^.^S.⁷^87,⁷⁹²⁽¹⁹⁷⁶⁾^;^Mat^h^{ew v.}^Di^a^z^,⁴²^{6 U}^.^S.⁶⁷⁽¹⁹⁷⁵⁾^.
⁹²^S^ee,^e.^g^.^,^H^e^rⁿ^a^nde^z^-^Riv^e^r^{a v}^.^I^.^N^.^S.^,⁶³^{0 F}^.²^d¹³⁵²^,¹³⁵⁶⁽⁹^th^Cⁱ^r^.¹⁹⁸⁰⁾^;^Gon^z^a^l^ez-Cu^eva^{s v.}^I^.^N.^S.^,⁵^{15 F.}^{2d 12}^22,
¹²²^{4 (}⁵^th^Cⁱ^r^.¹⁹⁷⁵⁾^.^Se^e^ge^ne^r^a^ll^y^A^nnota^tion^,^In^fa^{nt Cit}ⁱ^ze^{n as}^Eⁿ^title^d^to^St^ay^of^Alieⁿ^Pare^{nts’ D}^e^portati^on^Orde^r^,
^{42 A}^.^L^.^R^.^Fe^d.⁹²^{4 (}¹⁹⁷^{9 &}^S^u^p^p^{. 2}⁰⁰¹⁾^,^a^{nd A}ⁿⁿ^o^ta^tio^n,^Wha^t^C^oⁿ^s^tⁱ^t^u^t^{es “}^E^xt^{reme Ha}^rd^shⁱ^p^”^{or “}^E^xcep^tⁱ^o^na^l^aⁿ^d
^Ex^tre^m^e^l^y^{Unusual H}^a^rdshi^p^,”^Unde^{r §}²⁴⁴⁽^{a) of}^Immigra^tio^{n a}ⁿ^d^Nati^on^ality^Ac^{t (}⁸^U.^S.C.^S.^{§ 1}²⁵⁴⁽^a^{)), All}^o^win^g
^Attorⁿ^e^y^G^e^ne^r^a^l^to^Sus^pe^nd^D^e^p^o^r^t^ati^oⁿ^of^Alieⁿ^an^{d Al}^low^Admⁱ^s^sⁱ^{on f}^o^r^Pe^r^m^aneⁿ^t^Re^sⁱ^de^nc^e^,⁷²^A^.^L^.^{R. Fe}^{d. 1}³³
^§§^7-¹²⁽¹⁹^{85 &}^S^u^p^p^.²⁰⁰¹⁾^.
⁹³^U^r^ban^o^de^M^a^lal^u^aⁿ^v^.^I^.^N^.^S^.^,⁵⁷^{7 F.}^2d⁵^89,⁵^{94 (}⁹^th^Ci^r.¹⁹⁷⁸^).^T^hⁱ^s^p^a^rtⁱ^c^ul^{ar case act}^u^a^l^l^y^h^e^l^d^t^h^at^su^sp^en^si^on^o^f
^d^e^p^o^r^t^a^tⁱ^oⁿ^p^r^o^ceedⁱⁿ^{gs sh}^ou^l^d^{be reo}^p^eⁿ^e^d^,^an^{d i}^t^dⁱ^stⁱⁿ^gui^sh^ed^c^oⁿ^sⁱ^d^eratⁱ^oⁿ^o^f^t^h^{e ch}ⁱ^l^d^r^en^{’s exi}^s^t^eⁿ^{ce f}^r^o^m^a
^coⁿ^sⁱ^d^eratⁱ^oⁿ^o^f^ext^r^e^m^{e h}^a^rd^shⁱ^p^uⁿ^d^e^{r p}^r^o^ceedⁱⁿ^{gs f}^o^{r t}^h^{e su}^s^p^ensi^oⁿ^o^f^d^e^p^o^r^t^a^tⁱ^oⁿ^,^b^ecau^{se t}^h^e^l^a^t^t^e^{r p}^r^o^ceedⁱⁿ^gs
⁽^c^onti^nue^d.^..)

upheld the discretion of the Attorney General and the I.N.S. to define “extreme hardship” under ⁹⁴
proceedings for the suspension of deportation and to deny suspension of deportation and refuse
to reopen proceedings for the suspension of deportation even if a prima facie case for suspension ⁹⁵
is demonstrated. The Court held that a court could not substitute a liberal definition of “extreme
hardship” for a narrow one preferred by the Attorney General and the I.N.S., noting that
otherwise “any foreign visitor who has fertility, money, and the ability to stay out of trouble with
the police for seven years can change his status from that of tourist or student to that of permanent
resident without the inconvenience of immigration quotas. This strategy is not fair to those ⁹⁶
waiting for a quota.” A U.S.-citizen child must be twenty-one years old to bring alien parents ⁹⁷
into the United States as immigrants. Federal courts have found that this requirement is meant
“to prevent wholesale circumvention of the immigration laws by persons who enter the country ⁹⁸
illegally and promptly have children to avoid deportation,” and does not violate equal protection
by distinguishing between U.S.-citizen children who are minors and those who have attained ⁹⁹
majority.
The courts apparently have never ruled on the specific issues of whether the native-born child of
illegal aliens as opposed to the child of lawfully present aliens may be a U.S. citizen or whether
the native-born child of nonimmigrant aliens as opposed to legal resident aliens may be a U.S. ¹⁰⁰
citizen. However, Wong Kim Ark specifically held that under the Fourteenth Amendment a
child born in the United States to parents who, at the time of his birth, were subjects of the ¹⁰¹
Chinese emperor, but had a “permanent domicil [sic] and residence in the United States” and
were not diplomats of the emperor, was born a U.S. citizen. The holding does not make a
distinction between illegal and legal presence in the United States, but one could argue that the
holding is limited to construing the Fourteenth Amendment in the context of parents who are
legal permanent residents. However, the Court’s own discussion of the common law doctrine of
jus soli and the Fourteenth Amendment as an affirmation of it indicates that the holding, at the
least, would not be limited to permanent legal residents as opposed to nonimmigrant, transient, ¹⁰²¹⁰³
legal aliens and currently accepted law would also weigh against this argument. Also, the

^(...c^on^tin^ue^d)
^req^uⁱ^red^{a seven}^-^y^e^{ar co}ⁿ^tⁱⁿ^u^o^u^s^p^r^esen^{ce i}ⁿ^t^h^{e U}ⁿⁱ^t^e^{d S}^t^at^es.^How^e^ver,^l^a^t^e^{r cas}^es,^w^hⁱ^l^e^ackn^o^w^l^e^d^gⁱⁿ^{g ext}^r^e^m^e
^ha^r^d^s^hⁱ^p^a^s^a^s^t^a^t^ut^or^y^f^a^c^t^or^{, lim}^ite^{d r}^e^vⁱ^e^w^o^f^the^I^.^N^.^S.^dis^c^r^e^tio^{n to}^g^r^aⁿ^{t s}^u^s^p^eⁿ^sⁱ^oⁿ^of^de^p^o^r^t^a^tⁱ^{on a}ⁿ^d^didⁿ^o^t
^s^e^em^{to c}^ons^ide^r^s^e^v^e^n-^y^e^a^r^s^c^ontinu^ous^pr^e^s^eⁿ^c^e^to^be^a^sⁱ^gⁿ^if^ic^{ant r}^e^d^u^c^tio^{n of}^aⁿ^y^loop^hole^ba^s^e^{d o}ⁿ^U^.^S^.^-^c^itiz^eⁿ
^c^h^ildreⁿ^.^S^{ee i}ⁿ^f^r^aⁿ^o^t^es⁹⁴^-⁹⁵^aⁿ^d^acco^m^p^an^yⁱⁿ^g^t^e^xt^.^S^{ee a}^l^so^A^nnota^tⁱ^on,^s^upr^a^f^oot^note⁹²^{, 7}²^A^.^L^.^R^.^Fe^{d. a}^t¹³³^,
^§§^7-¹²^{. T}^h^e^aⁿ^nota^tⁱ^oⁿ^lis^ts^aⁿ^d^s^u^m^m^a^rⁱ^z^e^s^a^num^be^r^of^ca^s^e^s^w^h^ic^h^{do a}^nd^doⁿ^o^{t f}ⁱ^{nd e}^x^tr^e^m^e^ha^r^d^s^h^ip,^inc^l^udi^ng
^{cases i}ⁿ^vo^l^vⁱⁿ^{g U.}^S^.^-ci^tⁱ^zen^mⁱⁿ^o^{r ch}ⁱ^l^d^reⁿ^.^T^h^{e sp}^eci^fⁱ^{c fact}^{s i}ⁿ^{some case}^s^resu^l^t^e^dⁱⁿ^{a f}ⁱⁿ^dⁱⁿ^{g o}^f^ext^r^e^m^{e h}^a^rd^shⁱ^p^.
⁹⁴^I^.^N^.^S.^v^.^J^o^{ng H}^a^W^aⁿ^g^,⁴⁵^{0 U}^.^S^.¹³^9,¹⁴^{5 (}¹⁹⁸¹⁾^.
⁹⁵^I^.^N^.^S.^v^.^Ri^os^-^P^ine^d^a^,⁴⁷¹^U^.^{S. 4}^{44, 44}^{6, 45}¹⁽¹⁹⁸⁵⁾^.
⁹⁶⁴⁵^{0 U}^.^S^.^a^t¹⁴⁵^.
⁹⁷^Sectioⁿ²⁰¹⁽^b⁾⁽²^)(A^{)(I) o}^f^th^{e Imm}ⁱ^g^r^atioⁿ^an^d^Natioⁿ^a^li^ty^A^c^{t, co}^dⁱ^fⁱ^ed^{as a}^m^en^d^e^d^{at 8}^U^.^S.C.^§¹¹⁵¹^(b⁾⁽²^)(A^)(I).
⁹⁸^H^e^r^nan^de^z^-^Riv^e^r^{a v}^.^I^.^N^.^S.^,⁶³⁰^F^.^2d^at¹³⁵⁶^,^ci^tiⁿ^g^U^r^ba^no^de^M^a^lal^u^aⁿ^v^.^I^.^N^.^S.^,⁵⁷^{7 F}^.²^d^at⁵⁹⁴^.
⁹⁹^H^e^r^nan^de^z^-^Riv^e^r^{a v}^.^I^.^N^.^S.^,⁶³⁰^F^.^2d^at¹³⁵⁶^.
¹⁰⁰^S^CH^UC^K^&^S^MI^TH^,^s^upr^a^f^oot^note^15,^a^t¹¹⁷^.
¹⁰¹¹⁶^{9 U}^.^S^.^a^t⁷⁰⁵^.
¹⁰²^Uⁿ^ite^d^St^ate^s^v^.^W^oⁿ^g^Kⁱ^m^Ar^k^,¹⁶⁹^U.^S^.^at⁶⁹³^-⁶⁹⁴^.^T^h^{e Cou}^r^t^al^so^st^at^es:^“T^h^e^real^o^b^j^ect^o^f^t^h^e^F^o^u^r^t^eent^h
^A^m^e^ndm^eⁿ^{t of}^the^C^ons^tit^utio^n,ⁱⁿ^q^u^a^lif^yⁱ^ng^the^w^o^r^d^s^,^‘^A^{ll pe}^r^s^ons^b^o^rⁿⁱⁿ^t^h^e^Uⁿ^ite^{d Sta}^t^e^s^,’^by^the^a^dditⁱ^oⁿ^{, ‘}^aⁿ^d
^subje^c^t^to^the^j^u^risd^ic^tio^{n t}^h^e^r^e^o^f^,^{’ w}^{ould a}^p^pe^a^r^to^ha^v^e^b^e^eⁿ^to^e^x^c^l^ude^,^by^the^f^e^we^{st a}^{nd f}^itte^{st words, (}^b^e^s^ide^s
^c^h^ildr^eⁿ^of^m^e^m^b^e^r^s^of^the^I^ndiaⁿ^tr^ibe^s^{, s}^t^aⁿ^dingⁱⁿ^a^pe^c^u^lia^r^r^e^la^tⁱ^on^{to t}^h^e^N^a^tio^na^{l G}^o^v^e^rⁿ^m^e^{nt, unk}^now^{n t}^o^t^h^e
^c^o^m^m^{on law}^,⁾^the^tw^{o c}^l^a^s^s^e^s^of^c^a^s^e^s^—^c^hildr^eⁿ^borⁿ^of^a^lie^{n e}ⁿ^e^m^ies^{in hos}^t^ile^oc^c^u^pa^tio^{n, a}ⁿ^{d c}^h^ildr^eⁿ^of
^dipl^om^a^tic^r^e^pr^e^s^eⁿ^ta^tiv^e^s^o^f^a^f^o^r^e^ig^{n Sta}^t^e^—^bot^h^of^w^h^ic^{h, a}^s^ha^s^a^l^r^e^a^d^y^be^eⁿ^s^how^{n, by}^the^la^w^of^Eng^l^a^{nd, a}^nd^by
^our^ow^{n la}^w^,^f^r^o^m^the^tim^e^of^the^fⁱ^{rst se}^ttle^m^e^{nt of}^the^En^g^{lish c}^o^l^onie^sⁱⁿ^Am^e^r^ic^a^,^ha^{d be}^eⁿ^re^c^o^gⁿ^iz^e^d^e^x^c^e^p^tions
⁽^c^onti^nue^d.^..)

cases involving the deportation of illegal aliens simply take for granted that their U.S.-born
children are U.S. citizens in considering whether the existence of or extreme hardship to U.S.-¹⁰⁴
citizen, minor children should stay the deportation of the parents. This is true regardless of
whether the children were born during the period of any lawful stay by the parents, during the
period of any unlawful stay or after an I.N.S. finding of deportability of the parents. However,
some scholars argue that the Citizenship Clause of the Fourteenth Amendment should not apply
to the children of illegal aliens because the problem of illegal aliens did not exist at the time the ¹⁰⁵
Fourteenth Amendment was considered in Congress and ratified by the states. Although the Elk
decision construed the phrase, “subject to the jurisdiction thereof,” the situation of Native
Americans is unique, so any interpretation that the U.S.-born children of illegal aliens are not
born “subject to the jurisdiction” of the United States arguably could not rely on the Elk decision.
Because of the Supreme Court interpretations of U.S. citizenship laws and constitutional
provisions, one could argue that a constitutional amendment is necessary to clarify the meaning
of “subject to the jurisdiction of the United States. On the other hand, amicus curiae (friend of the
court) briefs submitted by several interested organizations to the U.S. Supreme Court for ¹⁰⁶
consideration during the case of Hamdi v. Rumsfeld argued, among other things, that the
Supreme Court interpretations never contemplated or intended to include the granting of
automatic citizenship by birth in the United States to persons whose parents were aliens who
entered or stayed in the United States unlawfully or who were transiently present. Most other jus
soli countries have limited citizenship by birth in their territories.
^Marg^{aret Miky}^ung^L^ee
^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y
^mm^l^e^e^@^crs^.^l^o^c.g^o^v^,^7-²⁵⁷⁹

^(...c^on^tin^ue^d)
^{to t}^h^e^f^unda^m^e^nta^l^rule^of^c^itiz^eⁿ^s^h^ip^by^{birth w}^ithin^the^c^o^un^try^.^”¹⁶⁹^U^.^S.^a^t⁶^83.
¹⁰³^S^h^avers,^s^upr^a^f^o^o^t^no^t^e⁵⁷^,^{at 489}^.
¹⁰⁴^S^ee,^e.^g^.^,^I^.^N^.^{S. v}^.^Rios^-^P^ine^d^a^,⁴^{71 U}^.^{S. a}^t⁴⁴^6;^Br^au^{n v}^.^I^.^N^.^S.^{, 9}⁹²^F.2^d¹⁰^16,¹⁰²⁰⁽⁹^th^Cⁱ^r^.¹⁹⁹³⁾^;^H^e^r^nan^de^z^-
^Rⁱ^vera^v.^I.^N.^S^.^,⁶³⁰^F.^2d^at¹³^56;^W^ang^v^.^I^.^N^.^S.^,⁶²²^F.2^d¹³^41,¹³⁴⁸⁽⁹^th^Cⁱ^r^.¹⁹⁸⁰⁾^;^U^r^ba^no^de^M^a^lalu^an^v^.^I^.^N^.^S.^,
⁵⁷⁷^F.^2d^a^t⁵^94;^Goⁿ^z^a^l^ez-Cu^{evas v.}^I.^N.^S.^,⁵¹^{5 F}^.²^d^at¹²²⁴^.
¹⁰⁵^S^CH^UC^K^&^S^MI^TH^,^s^upr^a^f^oot^note^15,^a^t⁹⁵^-⁹^8.
¹⁰⁶^{59 L}^.^E^d^.^2d⁵^78,¹²⁴^{S. C}^t^.²⁶³³⁽²⁰⁰⁴⁾^{. T}^h^e^C^o^ur^{t i}^t^s^e^lf^m^a^de^its^de^cⁱ^sⁱ^on^ba^s^e^{d o}ⁿ^t^h^e^a^s^s^u^m^p^{tion tha}^t^H^a^m^d^{i is}
^{a U.}^S^.^ci^tⁱ^zen^.^Am^ic^us^C^u^rⁱ^ae^bri^e^f^s^a^ddre^ssing^theⁱⁿ^te^rpre^ta^tioⁿ^o^f^the^Citiz^eⁿ^{ship C}^l^a^u^se^w^e^re^subm^itte^{d by}^{(1) the}
^Ea^g^l^e^For^u^m^Educ^a^tio^{n a}ⁿ^{d L}^e^g^a^{l D}^e^f^e^ns^e^{Fund; (}²⁾^t^h^e^C^l^a^r^e^m^{ont I}ⁿ^s^tit^ute^C^e^nte^r^f^o^r^C^o^ns^tit^uti^oⁿ^a^{l J}^u^rⁱ^s^p^r^u^de^nc^e^;
^a^{nd (}³⁾^the^C^e^nte^r^f^o^r^A^m^e^r^icaⁿ^Uⁿ^ity^{, Fr}^ie^nds^of^I^m^mⁱ^g^r^a^{tion L}^a^w^Enf^o^r^c^em^eⁿ^{t, N}^a^tiona^{l C}^eⁿ^t^e^r^{on C}ⁱ^tiz^eⁿ^s^hⁱ^p^aⁿ^d
^I^m^mⁱ^g^r^a^{tion, a}^{nd R}^e^pr^e^s^eⁿ^ta^tiv^e^s^Ste^v^e^Kⁱ^ng^{, D}^a^na^R^ohr^a^b^a^c^h^e^r^,^L^a^m^a^r^{S. Sm}^{ith, T}^hom^a^s^G^.^Ta^nc^r^e^{do, R}^o^s^c^oe
^Ba^rtle^{tt, Ma}^c^Colli^{ns, J}^o^e^Ba^rton^,^a^{nd J}^o^hⁿ^{J. Du}^nc^aⁿ^{, Jr.}