What Is Birthright Citizenship in the United States?

Carmen del Thalia Mallol holds her daughter Lia, 4, as she waits to take the Oath of Allegiance during a naturalization ceremony inside the National September 11 Memorial Museum on July 2, 2019 in New York City.
52 new US citizens sworn in at naturalization ceremony at the 9/11 Museum. Drew Angerer / Getty Images

Birthright citizenship in the United States is the legal principle that any person born on U.S. soil automatically and immediately becomes a U.S. citizen. It contrasts with U.S. citizenship obtained through naturalization or acquisition—citizenship granted by virtue of being born abroad to at least one U.S. citizen parent.

A “birthright” is defined as any right or privilege to which a person is entitled by virtue of birth. Long challenged in both the courts of law and public opinion, the policy of birthright citizenship remains highly controversial today, particularly when applied to children born to undocumented immigrant parents.

Key Takeaways: Birthright Citizenship

  • Birthright citizenship is the legal principle that any person born on U.S. soil automatically becomes a citizen of the United States.
  • Birthright citizenship was established in1868 by the Fourteenth Amendment to the United States Constitution and confirmed by the US Supreme Court in the 1898 case of United States v. Wong Kim Ark.
  • Birthright citizenship is granted to persons born in the 50 U.S. states and the U.S. territories of Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands.
  • Today, birthright citizenship is a highly controversial issue as it applies to children born to parents who have entered the United States illegally.

Jus Soli and Jus Sanguinis Citizenship

Birthright citizenship is based on the principle of “jus soli,” a Latin term meaning “right of the soil.” According to jus soli, a person’s citizenship is determined by their place of birth. As in the United States, jus soli is the most common means by which citizenship is acquired.

Jus Soli is in contrast to “jus sanguinis,” meaning “right of the blood,” the principle that a person’s citizenship is determined or acquired by the nationality of one or both parents. In the United States, citizenship can be acquired by either jus soli, or less commonly, by jus sanguinis. 

Legal Basis of US Birthright Citizenship

In the United States, the policy of birthright citizenship is based in the Citizenship Clause of the Fourteenth Amendment to the United States Constitution, stating “[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 reside.” Ratified in 1868, the Fourteenth Amendment was enacted to override the 1857 U.S. Supreme Court’s Dred Scott v. Sandford decision which had denied citizenship to former African American slaves.

In the 1898 case of United States v. Wong Kim Ark, the U.S. Supreme Court confirmed that under the Fourteenth Amendment, full U.S. citizenship cannot be denied to any person born within the United States, regardless of the citizenship status of the parents at the time.

Under the Indian Citizenship Act of 1924, birthright citizenship is similarly granted to any person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.

Under the Immigration and Nationality Act of 1952, U.S. jus soli birthright citizenship, as established by the Fourteenth Amendment, is automatically granted to any person born within any of the 50 states and the territories of Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands. In addition, jus sanguinis birthright citizenship is granted (with some exceptions) to persons born to U.S. citizens while in other countries. 

The above statutes and subsequent legislative amendments are compiled and codified into the United States Code of Federal Laws at 8 U.S.C. § 1401 to define who becomes a United States citizen at birth. According to federal law, the following persons shall be deemed U.S. citizens at birth:

  • A person born in the United States, and subject to the jurisdiction thereof.
  • A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.
  • A person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person.
  • A person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.

The Birthright Citizenship Debate

While the legal concept of birthright citizenship has withstood years of challenges in the courts of law, its policy of automatically granting U.S. citizenship to children of undocumented immigrants has not fared as well in the court of public opinion. For example, a 2015 Pew Research Center survey found that 53% of Republicans, 23% of Democrats, and 42% of Americans overall favor changing the Constitution to bar citizenship for children born in the U.S. to undocumented immigrant parents.

Many opponents of birthright citizenship argue that it encourages expectant parents to come to the U.S. simply to give birth in order to improve their own chances of attaining legal resident (green card) status—a practice often called “birth tourism.” According to a Pew Hispanic Center analysis of Census Bureau data, an estimated 340,000 of the 4.3 million babies born in the United States in 2008 were born to “unauthorized immigrants.” The Pew study further estimates that a total of about four million American-born children of unauthorized immigrant parents lived in the U.S. in 2009, along with about 1.1 million foreign-born children of unauthorized immigrant parents. Controversially calling it the “anchor baby” situation, some lawmakers have suggested legislation to change how and when birthright citizenship is granted.

The 2015 Pew analysis found that birthright citizenship was granted to about 275,000 babies born to undocumented immigrant parents in 2014, or about 7% of all births in the U.S. that year. That number represents a drop from the peak year of illegal immigration in 2006 when about 370,000 children—about 9% of all births—were born to undocumented immigrants. In addition, about 90% of undocumented immigrants who give birth in the U.S. have resided in the country for more than two years before giving birth.

On October 30, 2018, President Donald Trump escalated the debate by stating that he intended to issue an executive order completely removing the right of citizenship to people born in the U.S. to foreign nationals under any circumstances—an act some argue would essentially repeal the Fourteenth Amendment.

The president set no timeline for his proposed order, so birthright citizenship—as established by the Fourteenth Amendment and United States v. Wong Kim Ark—remains the law of the land.

Other Countries With Birthright Citizenship

According to the independent, non-partisan Center for Immigration Studies, the United States along with Canada and 37 other countries, most of which are in the Western Hemisphere, offer largely unrestricted jus soli birthright citizenship. No Western Europe countries offer unrestricted birthright citizenship to all children born within their borders.

Over the last decade, many countries, including France, New Zealand, and Australia, have abandoned birthright citizenship. In 2005, Ireland became the last country in the European Union to abolish birthright citizenship.

Sources and Further Reference