Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11

17 Pages Posted: 1 Jun 2006  

John C. Eastman

Chapman University, The Dale E. Fowler School of Law; Claremont Institute Center for Constitutional Jurisprudence

Date Written: September 29, 2005

Abstract

Testimony before the U.S. House of Representatives, Judiciary Committee, Subcommittee on Immigration, Border Security, and Claims (Sept. 29, 2005) contends that the Citizenship Clause of the 14th Amendment has been misconstrued as mandating birthright citizenship. Rather, the clause was a codification of the 1866 Civil Rights Act, which quite clearly exempted from the automatic citizenship provisions children of parents who owed allegiance to a foreign power - i.e., those who were in the U.S. only temporarily (and particularly those who were in the U.S. illegally). This was the understanding of those who drafted and those who ratified the 14th Amendment, and was confirmed by the Supreme Court in the first two cases to address the clause. In 1898, the Court reversed course, though, holding that the Clause mandated birthright citizenship, resulting in a repudiation of the principle of bilateral consent as the foundation for citizenship.

Keywords: Birthright citizenship, 14th Amendment, Citizenship Clause, Wong Kim Ark

JEL Classification: E61,E65,F22,H1,H10,H11,H56,H70,H77,J18,J61

Suggested Citation

Eastman, John C., Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11 (September 29, 2005). Available at SSRN: https://ssrn.com/abstract=905570 or http://dx.doi.org/10.2139/ssrn.905570

John C. Eastman (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States
714-628-2587 (Phone)

HOME PAGE: http://www.chapman.edu/law/faculty/eastman.asp

Claremont Institute Center for Constitutional Jurisprudence

1317 W. Foothill Blvd., Suite 120
Upland, CA 91786
United States
877-855-3330 (Phone)

HOME PAGE: http://https://www.claremont.org/center-for-constitutional-jurisprudence/

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