The constitutional rule of birthright citizenship has returned to the US Supreme Court for the first time in over a century. The importance of the issue cannot be overstated: It goes to the heart of what it means to be a nation. At its core are the concepts of sovereignty and the social compact. Does the Constitution require that America accept as citizens all children born within its territory, including to parents who came to the country illegally or transiently, and even if those parents and children return to their home countries? Does it require treating as citizens the hundreds of children born via American surrogates to a small handful of wealthy Chinese nationals who have never set foot in the United States?
The Fourteenth Amendment declares that all persons born in the United States “subject to the jurisdiction thereof” are citizens, a provision that aimed at ensuring citizenship to the formerly enslaved. The conventional wisdom is that this clause prevents the political branches a century and a half later from deciding upon the citizenship of children born to such foreign parents even if, for example, they are illegally or transiently in the country.
According to this view, the longstanding rule of the common law required, and the language of the Fourteenth Amendment requires, citizenship for any child born on American soil by virtue of birth on that soil. Narrow historical exceptions existed only for the children born to ambassadors or foreign soldiers. In the American context, the common law and the amendment’s drafters also contemplated an exception for Indian children born in Indian country to parents still subject to their tribal authorities. The conventional explanation is that these groups remain subject to the commands and sovereign authority of another nation and the United States does not (or did not, in the case of Indian tribes) exercise its sovereign authority over them. Another theory is the fiction that ambassadors and foreign armies (and the Indian tribes) are on foreign soil, even when within American territory.