Birthright citizenship and American exceptionalism

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

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In its defense of President Donald Trump’s executive order limiting access to birthright citizenship, the Justice Department claims that the government’s policy would bring the United States in line with the modern global trend. It is true that most countries do not grant citizenship at birth to people born within their borders with as few restrictions as the United States. But that isn’t new: The United States has been a global outlier since the 14th Amendment was added to the U.S. Constitution in 1868. 

Understanding which countries grant citizenship primarily based on the location of birth, and which don’t, helps make sense of the 127-year-old approach that the Justice Department is asking the court to reconsider. This also reveals the troubling history of why certain countries have chosen not to recognize birthright citizenship in the first place. 

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Trump’s birthright citizenship order, which denies U.S. citizenship to some children born in the United States based on the citizenship or immigration status of their parents, has faced legal challenges since shortly after the president signed it in January. In June, the court weighed in on the administration’s side regarding a technical – albeit important – procedural issue, and over the past five months courts considering a new round of lawsuits have uniformly concluded that the executive order is likely illegal. In its petition asking the court to review decisions from two federal courts – the U.S. Court of Appeals for the 9th Circuit and the U.S. District Court for the District of New Hampshire – the Justice Department argues that broad access to citizenship at birth “degrades” and “dilutes” U.S. citizenship. “Presumably for those reasons, hardly any developed country retains a theory of citizenship similar to the United States’ current approach,” the U.S Solicitor General, D. John Sauer, writes in the government’s petition. 

The solicitor general’s claim isn’t so much incorrect as it is misleading. Sauer doesn’t cite any source or give any examples, so it is impossible to be sure which countries he considers “developed.” Germany, Japan, and most Nordic countries, for example, historically relied on biological relationships to determine citizenship. In practice, a citizen’s child would obtain citizenship at birth based on the parent-child relationship even if the child was born outside the country of citizenship. Called jus sanguinis – a Latin term meaning “right of blood” – what matters most under these citizenship practices, which remain common, is a child’s genetic inheritance. Current law in the United States features jus sanguinis options for some children born abroad to U.S. citizens.

By contrast, the 14th Amendment’s citizenship clause, which ties citizenship to the place of birth, is an example of a jus soli citizenship law – a Latin phrase that means “right of the soil.” Since at least 1898, when the Supreme Court issued its decision in United States v. Wong Kim Ark, courts and executive branch agencies have interpreted the citizenship clause as granting U.S. citizenship to everyone born in the United States except for the children of foreign diplomats, invading military forces, and Native Americans. 

Like in the United States, jus soli citizenship laws are common throughout the Western Hemisphere. Canada and Mexico both extend citizenship to children born within their borders. Alongside Argentina and Brazil, South America’s two largest economies, the five wealthiest countries in the Americas recognize a broad jus soli citizenship right. Except Mexico, each of these countries exempts children born to diplomats.

Despite being far from unusual in the Americas, jus soli citizenship originated in the United Kingdom. In 1608, Lord Chief Justice Sir Edward Coke announced that Robert Calvin, who was born in Scotland, was a citizen of the king’s entire realm rather than simply of Scotland. “Whosoever is born within the King’s power or protection, is no alien; but Calvin was born under the King’s power and protection; ergo he is no alien,” Coke wrote in Calvin’s Case. Importantly, Coke qualified this broad recognition of citizenship through birthplace by excluding children born to invading enemies. A child born to someone who successfully attacks “any castle or fort” isn’t treated as a citizen “though he be born within his dominions, for that he was not born under the King’s ligeance or obedience,” Coke added. 

The immediate impact of Coke’s decision in Calvin’s Case was that Robert Calvin could claim property in England on the same terms as any English male. Over the long run, the theory of citizenship based on the location of birth that Coke announced in 1608 also proved convenient to a country that would go on to spread its reach across the world. The U.K.’s broad jus soli policy ensured that its own emigrants could count on their children receiving U.K. citizenship no matter where in the kingdom they lived.

Nevertheless, almost 400 years after Calvin’s Case, the United Kingdom narrowed its citizenship law. As Sauer notes in his petition to the court, “[e]ven the United Kingdom, which pioneered near-automatic birthright citizenship, abandoned that approach in 1983.” By the last decades of the 20th century, the U.K. had stopped invading new territories, subduing their populations, and stretching its global reach through generation after generation of emigrants. Rather than send its own native-born residents abroad, residents of the remaining Commonwealth countries, as well as residents of the U.K.’s former colonies, began heading to the U.K. To limit who acquired citizenship, in 1981 Parliament enacted a law, the British Nationality Act of 1981, that tied a child’s citizenship to birth in the U.K. and the citizenship or immigration status of their parents. That law, which combines jus soli and jus sanguinis principles, went into effect on Jan. 1, 1983 and remains in effect today.

Indeed, the division between countries that rely primarily on jus soli citizenship and those that use jus sanguinis reflects their histories of colonization. Most countries that default to jus soli citizenship share a common history of European colonization, including displacement and near annihilation of native populations. The United States, like the rest of the Americas, fits this description. By contrast, few countries that prioritize jus sanguinis citizenship were colonized by European powers. 

The federal government’s petition, which the justices are expected to consider on Friday, doesn’t reference this context. By suggesting that Trump’s executive order merely aligns the United States with most other “developed” countries – without explaining which countries he has in mind – Sauer overlooks that the 14th Amendment is an example of one of two primary types of birthright citizenship that have existed for centuries. Among countries that have used jus soli citizenship, like the United States, most still do. The fact that most countries grant citizenship at birth based on bloodlines should not affect how the Supreme Court interprets the citizenship clause. Nor should the fact that the U.K. altered centuries of tradition when a waning empire found broad access to citizenship politically inconvenient.