The Basic Right of Citizenship: A Comparative Study

By Sarah A. Adams September 1993

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

United States Constitution, Amendment 14, section 1, clause 1

This seemingly simple sentence in the United States Constitution has recently been the cause of much debate among politicians and the public alike. The Fourteenth Amendment guarantees the automatic right of citizenship to anyone born in the United States (while subject to its jurisdiction). This has generally been interpreted to mean that the residence status of the parents makes no difference. The parents could be here illegally or simply passing through on a tourist visa; in either case their child born here would automatically be a citizen of the United States. Although, at first glance, this may seem to affect only a very small number of people, in actuality, births to illegal aliens account for a large percentage of the total hospital births in certain areas of the country. For example, Michael Antonovich of the Los Angeles County Board of Supervisors states that two-thirds of the births in Los Angeles county hospitals are to illegal aliens. Additionally, Mr. Antonovich notes that these children now account for 30 percent of all AFDC (Aid to Families with Dependent Children) cases in Los Angeles County.

As the issue of immigration has increasingly become a topic of public discussion, an assortment of bills has been proposed in both the House and the Senate in an attempt to tighten the application of current immigration laws in the United States. The bills have included, among other t4ings, various proposals dealing with reform of the asylum system, improved border security and increased penalties for alien smuggling (see CIS Backgrounder, "Immigration Reform Gains Momentum"). Proposals have also addressed the difficult question of what to do about the automatic citizenship right granted by the Fourteenth Amendment. This question has sparked much concern and discussion from all sides of the immigration issue.

In Congress, there are presently several proposals for changing the policy of birthright citizenship. Congressmen Anthony Beilenson (D-CA) and Elton Gallegly (R-CA) both have proposed Joint Resolutions (H.J.R. 117 and H.J.R. 129 respectively) calling for a Constitutional Amendment to change the citizenship clause of the Fourteenth Amendment so that only children of citizens and legal residents would be granted automatic citizenship. Congressman Gallegly's Amendment would limit this right to only those whose mothers are citizens or legal residents, whereas Congressman Beilenson's grants the child citizenship if either parent is a citizen or legal resident.

Senator Harry Reid (D-NV) has introduced a comprehensive immigration reform bill (S. 1351) that includes a provision that would limit citizenship to those whose mothers are United States citizens or legal permanent residents. However, Senator Reid's proposal is to amend only the Immigration and Nationality Act, not the Constitution. Additionally, Senator Alan Simpson (R-WY) is planning to propose an immigration reform package that will include a provision similar to that of Senator Reid's. Whether or not Senator Simpson's recommendation will limit the right to citizenship to only those whose mothers are citizens or legal residents remains to be seen.

Opponents of these proposals argue that they go against the fundamental traditions of the United States. The citizenship clause was originally written to guarantee citizenship to all freed slaves, thereby establishing a tradition of inclusiveness. On the other hand, those in favor of the proposals believe birthright citizenship to be an attraction to illegal immigration. Under current law, simply because a child is born on U.S. soil, he or she is entitled to all the benefits that U.S. citizenship entails, including federal welfare benefits and the right to vote. Additionally, when that child turns 21, he or she will be able to sponsor his or her parents, and other family members, to the United States under the family reunification provisions of the Immigration and Nationality Act.

Due to the rising importance of this issue, the Center for Immigration Studies has undertaken to examine the citizenship laws of other countries to determine how their practices compare with U.S. policy on this issue.

Generally, citizenship can be acquired in anyone of four ways (or any combination of the four). The specifics of each method vary depending on how each individual country chooses to implement them; however, the general principles remain the same. The four ways are by descent (jus sanguinis), by naturalization, by registration and by birth (jus soli).

The most common method of acquiring citizenship is by descent. Normally this means that citizenship passes down through one or both parents without regard to where the child is actually born. Almost all countries also allow a foreigner to gain citizenship through some process of naturalization. However, the requirements for naturalization vary considerably depending on the country. Often, these requirements include a specific period of residence in the country; basic knowledge of the language and governmental structure; good moral standing; and often an oath of allegiance which mayor may not require that the person renounce any former citizenship. Citizenship by registration is a less common method and tends to apply only to nationals of one specific country desiring to become citizens. For example, in India, citizens of certain Commonwealth countries such as the United Kingdom and New Zealand can become citizens by registration.

The final category is citizenship by birth. The legal term for this type of citizenship is jus soli which refers to countries that grant citizenship to persons born on their "soil" regardless of the nationality of the parents. Of the 38 countries surveyed for this study, 12 grant automatic citizenship to those born on their soil while 26 do not (see chart on page 4). For the purposes of this chart, "birth" refers only to whether a person is guaranteed citizenship simply by being born in that country, regardless of the status of the parents. However, "birth" does not include children of diplomats or other persons performing official duties abroad, as most countries, including the United States, do not give citizenship to the children of foreign nationals in a country on official business of their home government.




Sources

Aspectos Juridicos e Institucionales de las MigrQciones — Colombia — 1991. International Organization for Migrations, Geneva, 1991.

Bin-Nun, Ariel. The Law of the State of Israel: An Introduction. Jerusalem, Israel: Rubin Mass, 1990.

Individual Country Embassies.

Israel Law of Return, 5710- 1950, 4 L.S.I. 114.

Jenks, Rosemary, ed. Immigration and Nationality Policies of Leading Migration Nations. Washington, DC: Center for Immigration Studies, 1992.

Simpson, Senator Alan. "Immigration: The Problem, Guiding Principles, and Reform Proposals." Congressional Record, Vol. 139, No.114, Aug. 6, 1993.


Sarah A. Adams is an intern at the Center for Immigration Studies.