State Legislators Challenge Congress on Birth Citizenship

Many foreign nationals are voicing concerns about potential changes pertaining to the acquisition of U.S. citizenship by children born in the United States. These concerns arise from a January 5, 2011 press conference wherein a group of state legislators, including legislators from Arizona, Georgia, South Carolina, Oklahoma, and Pennsylvania, unveiled plans to attempt to narrow entitlement to automatic acquisition of U.S. citizenship based upon one’s birth in the United States. The legislators proposed that children born to undocumented foreign nationals not acquire U.S. citizenship by virtue of a U.S. birthplace. This challenges the long-standing interpretation of the 14th Amendment to the U.S. Constitution. There is significant opposition to this change in a fundamental area of U.S. Constitutional law. [This was also the topic of a recent entry in the MurthyBlog. See State Legislation Targets Birthright Citizenship for further reading.]

Guarantees of the U.S. Constitution’s 14th Amendment

The proponents of the new restricted birthright to citizenship argue that the 14th Amendment of the U.S. Constitution has been misinterpreted by allowing children of “undocumented aliens” to become citizens as a matter of law. Specifically, they argue that the clause guaranteeing citizenship to those born in the United States if they are “subject to the jurisdiction thereof,” does not apply to those whose parents are in the U.S. illegally.

The 14th Amendment was originally ratified in 1868, with the purpose of guaranteeing citizenship to freed slaves after the Civil War. Since the enactment of the 14th Amendment, the U.S. Supreme Court took the position that the 14th Amendment gives citizenship to persons born in the United States (with the exception of certain children of foreign diplomats).

Two Pieces of Proposed Legislation: Model Bill and Compact

At the January 5, 2011 press conference, the state legislators unveiled two pieces of proposed state legislation, the model bill defining a “citizen of the state,” and an interstate “compact” that would create two types of birth certificates, for those who are “naturally born” U.S. citizens and those who are not. While the model bill does not require the approval of Congress, the compact does, as per the Article 1, Section 10 of the U.S. Constitution.

Even if the model bill is passed by individual states, it is not entirely clear what practical result it would entail, since U.S. immigration laws, including citizenship, are determined by the U.S. federal government and not individual states. It is also unlikely that Congress would approve the proposed compact, at least in the near future, given much resistance from various political and civil groups as well as individuals. Even if approved, the compact would likely create chaos and uncertainty as it would make certain individuals U.S. citizens in some states but not in others.

Prior Attempts at Limiting the 14th Amendment

This recent attack on the interpretation of the 14th Amendment with regard to birthright U.S. citizenship has a history of failed attempts at passage through Congress. In 2009, Representative Nathan Deal introduced H.R.1868 – Birthright Citizenship Act of 2009 in the House of Representatives. That proposed bill did not pass. A year later, Representative Dan Burton introduced another bill, H.R.5002 – No Sanctuary for Illegals Act, which contained a provision similar to the Birthright Citizenship Act of 2009. That bill has not passed in the House either.

Expect Legal Challenges on any State Legislation on Citizenship

The creation of state legislation addressing the question of U.S. citizenship would be virtually certain to generate legal challenges to the constitutionality of such laws. Many well-recognized constitutional experts virtually dismiss the legal positions taken by those who support the legal arguments behind the proposed state legislation in question, and the idea that the 14th Amendment does not guarantee citizenship to those born in the United States.

As regular MurthyDotCom and MurthyBulletin readers may recall from our news article, Arizona’s Immigration Law Sparks Controversy and Lawsuits (07.May.2010), when state laws encroach on the creation and enforcement of U.S. immigration laws, it generates public outcry, including that of well-organized political and civil groups, and gives rise to legal challenges in the courts. Efforts to undermine such a long-standing, fundamental Constitutional concept would likely face powerful legal opposition.


For now and, hopefully, forever, children born in the United States continue to be U.S. citizens from the moment of birth. While this particular effort is aimed at children of undocumented foreign nationals, it has made many other foreign nationals fearful. It is ironic that the very groups who oppose positive immigration reform and tout respect for the laws of this country as a basis for their restrictionist positions are trying to rework constitutional protections that have been in place for over a century. MurthyDotCom and MurthyBulletin readers will be informed of any further, significant developments on the proposed limitation of birthright citizenship. This is a matter of utmost importance to a great number of U.S. citizens and foreign nationals alike.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.