Why has the issue of birthright citizenship gained such prominence in recent years among immigration restrictionists? Conventional wisdom holds that opposition to birthright citizenship is a new phenomenon spurred on by two factors: unprecedented levels of unauthorized immigration and the rise of the welfare state. Yet challenges to the legitimacy of birthright citizenship have in fact arisen at various points since the passage of the Fourteenth Amendment. Examining earlier debates about birthright citizenship, including the largely overlooked history of citizenship restrictionism in the 1920s, I argue that current restrictionist efforts fall into a familiar pattern in which fears about the integrity of America’s borders, articulated in the language of crisis and invasion, find an outlet in efforts to police the borders of citizenship. Across different historical eras, arguments against birthright citizenship have consistently emphasized the notion that the Citizenship Clause undermines the immigration policies of the day, from Chinese exclusion in the 1890s to racial restrictions on naturalization in the 1920s to securing the U.S.-Mexico border today. I argue that defenders of birthright citizenship would do well to engage critically with the tensions that current opponents of birthright citizenship identify, rather than shying away from them. To the extent that there are tensions between the closed borders of immigration law and the open borders of birthright citizenship, such tensions have been greatly exacerbated by changes in immigration law and policy over the past several decades that, while ostensibly aimed at reducing unauthorized immigration, have had the effect of greatly increasing the number of mixed-status families. These tensions should be resolved, I argue, not by altering the Fourteenth Amendment but instead by addressing the unintended consequences of restrictive immigration laws and heightened border enforcement.
Washburn University School of Law
Washburn Law Journal, Vol. 51, pp. 311-330, 2012.