Beyond Blood and Borders: Finding Meaning in Birthright Citizenship


citizenship, birthright citizenship, Fourteenth Amendment, undocumented immigrants, membership, jus soli, jus sanguinis

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Since the ratification of the Fourteenth Amendment, the United States has conferred citizenship to all children born within U.S. territory with few exceptions. In recent years, however, some have proposed legislation that would exclude the U.S.-born children of undocumented immigrants from U.S. citizenship as a way of reducing incentives for unauthorized immigration. Using various interpretive lenses, scholars have debated whether the Fourteenth Amendment requires the bestowal of citizenship to all individuals born within U.S. territory. This article, however, reaches beyond the Fourteenth Amendment and analyzes the concept of territorial birthright citizenship more broadly.

This article explores the substantive meaning and purpose of birthright citizenship in the United States as distilled from the historical trajectory of U.S. citizenship law. Specifically, this article examines several junctures in U.S. history in which courts and legislatures have grappled with decisions about citizenship, including the aftermath of the American Revolution, the formulation and ratification of the Fourteenth Amendment, and the exclusion (and later inclusion) of American Indians from U.S. citizenship. This article isolates the substantive factors that have played a role in these grants or denials of citizenship to evaluate whether a territorial conception of birthright citizenship continues to serve the substantive purposes and meaning of birthright citizenship in the United States. Ultimately, this article concludes that, although territorial presence is a waning proxy for substantive indicators of membership in other spheres of law, territorial presence at birth continues to serve as an accurate predictive proxy for these substantive indicators of membership in the realm of citizenship.


78 Brook. L. Rev.

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Brooklyn Law Review



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