'By Virtue of Being Born Here': Birthright Citizenship and the Civil Rights Act of 1866

38 Pages Posted: 13 Sep 2010 Last revised: 2 Apr 2012

Mark Shawhan

affiliation not provided to SSRN

Date Written: September 1, 2011

Abstract

: This Article responds to recent claims that as an originalist matter, the Citizenship Clause of the Fourteenth Amendment does not cover children of undocumented immigrants; it shows this interpretation, whatever its political and popular support, to be wrong on its own historical terms. The Citizenship Clause was instead originally understood to guarantee citizenship for all children born here and subject at birth to the full unmediated sovereign power of the United States, whatever the immigration status of their parents. The Article reaches this conclusion through examining evidence that has not been fully considered before: the debates over the citizenship provision of the Civil Rights Act of 1866. The Citizenship Clause was enacted in order to entrench the citizenship guarantee of the Civil Rights Act. The debates over that guarantee show that Congressional Republicans drafted it to repudiate the consent-based citizenship approach of Dred Scott in favor of the traditional territorial approach of the common law. The Amendment’s restriction of birthright citizenship to children born “subject to the jurisdiction” of the United States was historically understood to exclude only individuals, such as children of foreign diplomats and of members of Indian tribes, outside the scope of full U.S. sovereign authority. All other children are included within the Amendment’s guarantee of birthright citizenship, including children of undocumented immigrants.

Suggested Citation

Shawhan, Mark, 'By Virtue of Being Born Here': Birthright Citizenship and the Civil Rights Act of 1866 (September 1, 2011). Harvard Latino Law Review, Vol. 15, 2012. Available at SSRN: https://ssrn.com/abstract=1675876

Mark Shawhan (Contact Author)

affiliation not provided to SSRN ( email )

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