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INSIGHT: The Birthright Citizenship Problem That DACA Can’t Fix

July 7, 2020, 8:00 AM

The U.S. Supreme Court’s recent decision blocking the rescission (or cancellation) of Deferred Action for Childhood Arrivals is a victory for fairness and good sense.

The DACA program, created under the Obama administration, allowed individuals who had been brought to the U.S. as children without legal status to remain in the U.S. and to work. Abruptly rescinding the program, as the Trump administration sought to do, would have caused grievous harm to hundreds of thousands of law-abiding young people and their families.

Yet neither the court’s decision nor the DACA program itself address the fundamental moral and political problem that faces the Dreamers, as recipients of DACA are known. Because they grew up in the U.S., they are for all practical purposes members of our national community. It is not just a matter of paying taxes: most Dreamers are indistinguishable in culture, language, and habits from American citizens.

But because they were born outside the U.S., they do not have the formal membership that usually goes with these cultural and economic attachments. The country that is their home, in short, is not their home country.

The legal rule of birthright citizenship is the root of the dilemma we and the Dreamers face. Birthright citizenship—that is, the automatic grant of citizenship at birth to those born in a nation’s territory and/or to its citizens abroad—is an international norm. In the U.S., the principle that everyone born on U.S. soil is automatically a U.S. citizen was written into the U.S. Constitution by the Reconstruction-era 14th Amendment.

In the century and a half since its ratification, America’s capacious birthright citizenship principle has done much good. It ensured that African Americans, Jews, Asians, and many other groups who were the targets of often violent discrimination nonetheless gained and retained American citizenship.

Yet as the Dreamers’ experience shows, birthright citizenship has a dark face as well. Its inclusiveness towards those born inside the U.S. is mirrored by its exclusion of those born outside of U.S. territory, with sometimes tragic consequences.

In the 20th century, the exclusionary side of birthright citizenship was particularly visible in the U.S.’s relations with Mexico. From the 1910s onward, millions of Mexican citizens lived and worked long term on the American side of the border in agriculture and many other professions.

Many Mexicans put down roots, building the American economy, and raising their families. Yet because they were born in Mexico, and in most cases could not formally immigrate, no amount of time spent in the U.S. made them into U.S. citizens. Individuals who happened to be born on the Mexican side of the border were systematically denied the American citizenship that was automatically granted to those born a stone’s throw away within the United States. Birthright citizenship, for them, was a burden rather than a blessing.

Rethinking the Birthright Principle

To solve the Dreamers’ dilemma we need to rethink our reliance on birthright to create the boundaries of our national community. That does not mean, as some on the far right have suggested, doing away with the 14th Amendment guarantee of citizenship to those born on U.S. soil. Leaving aside the fact that this would require amending the Constitution, a tall order at best, this would merely replace one kind of birthright principle with another. Granting citizenship only to the children of citizens would not solve the Dreamers’ dilemma and would sharply escalate the exclusivity and inequity of American citizenship.

Immigration reform that offers a path towards citizenship for Dreamers is a more promising avenue. But a mere technical fix, narrowly tailored to those who came to the U.S. as children, would leave in place the current immigration system, which throws up endless and arbitrary formal barriers to foreign nationals who want to become Americans.

A more just and complete solution to the Dreamers’ dilemma would be to reimagine citizenship law so that nationality is allocated based on each person’s real attachment to country and people, not the arbitrary condition of birthplace.

A person who is culturally and socially an American, and who is integrated into American society, should be a U.S. citizen regardless of how or when they came to this country. Such a rule would be more complex to administer than the current automatic birthright rule: we would need to develop ways to weigh a person’s attachments, and those measures will likely be susceptible to racial and ethnic bias. We would have to be vigilant in keeping such deviations at bay, especially given the long history of U.S. policymakers using culture as a weapon against immigrants and foreigners. But these potential pitfalls have to be set against the great advantage of ending the arbitrary and fundamentally unfair reliance on birthplace as the basis for conferring the advantages of citizenship.

Using real attachments rather than accidents of birth to assign nationality may sound radical, but it is not. In fact it has been a principle of U.S. nationality law since the 1790s. Under current rules, the children of expatriate American citizens, born abroad, are not necessarily able to pass on their U.S. citizenship to their own children. The logic is simple: After two generations abroad, we suspect that the family’s attachment to the U.S. may have faded.

If that principle of attachment is enough to deny Americans the right to pass on their citizenship to their children, it should be enough to guarantee it to those who live and work among us.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Nathan Perl-Rosenthal, associate professor of history, spatial sciences and law, is an historian focusing on the political and cultural history of Europe and the Americas in the age of revolution. He is the author of “Citizen Sailors: Becoming American in the Age of Revolution” (Belknap/Harvard). Perl-Rosenthal holds appointments in the USC Gould School of Law and USC Dornsife College of Letters, Arts and Sciences.

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