The common law concept of territorial birthright citizenship is the foundation for the Fourteenth Amendment's Citizenship Clause, which confers citizenship on those born within the United States and "subject" to its "jurisdiction." Likewise territorial underpinnings were the basis for over 375 years of birthright citizenship within the United Kingdom. Contemporary discourse with respect to territorial birthright citizenship, however, has shifted from its common law basis and now focuses on whether citizenship ought to inhere in children born to illegal immigrants. In the United Kingdom, the British Nationality Act of 1981 abandoned territorial birthright citizenship in favor of parentage based citizenship. The United States, however, while adopting the English common law concept of territorial birthright citizenship embodied in the Fourteenth Amendment to the U.S. Constitution, has never definitively articulated its position on children born to illegal immigrants.
Social and political controversy over the influx of illegal immigrants has increased activity aimed at altering the doctrine of territorial birthright citizenship. Efforts in the United States to legislatively redefine the Citizenship Clause to exclude children born to illegal immigrants from United States citizenship have failed and are probably unconstitutional should they succeed. This can be contrasted with the restriction of citizenship in those born to illegal immigrants. While the common law basis of the U.K.'s departure from territorial birthright citizenship is exemplified under "Parliamentary Supremacy," legislative alteration of the U.S. common law basis of territorial birthright citizenship may not occur by directly restricting the Fourteenth Amendment.
This Note investigates the development of territorial birthright citizenship in the United Kingdom and the Untied States and critiques contemporary efforts in the United States to restrict citizenship of children born to illegal immigrants. This Note concludes that while the legislative efforts in the Untied States to restrict citizenship of children of illegal immigrants may be an acceptable political policy, it is unconstitutional and, therefore, other alternatives must be explored. These alternatives, premised on Congress' broad authority under the immigration and naturalization power, are traditionally reviewed deferentially by the judiciary. Thus, it would be far more efficacious and constructive for opponents of territorial birthright citizenship to concentrate their efforts at altering current immigration and border enforcement policies, rather than pursuing patently unconstitutional efforts to redefine the Citizenship Clause.
Michael Robert W. Houston,
Birthright Citizenship in the United Kingdom and the United States,
33 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol33/iss3/5