Multi-American | How immigrants are redefining 'American' in Southern California

The future of birthright citizenship: A wrap-up

Elementary school students recite the Pledge of Allegiance during a September 11 memorial service in Tyler, Texas, 2003
Elementary school students recite the Pledge of Allegiance during a September 11 memorial service in Tyler, Texas, 2003
Photo by Mario Villafuerte/Getty Images

During the past week, Multi-American has dissected the growing debate over the United States' longstanding policy of jus soli citizenship, commonly known as birthright citizenship.

Posts prior to the series covered the history of the 14th Amendment, ratified in 1868; the content of model legislation introduced by a group of anti-birthright citizenship legislators and advocates hoping to force a Supreme Court review of the amendment; and the story of Wong Kim Ark, a second-generation Chinese American who challenged federal authorities in the late 1800s after he was denied re-entry to the country where he was born, a precedent-setting case that made it to the Supreme Court.

What happens next? Since the Arizona bills were introduced last week, another anti-birthright citizenship bill aimed at challenging the Constitution was introduced in South Carolina. Indiana, where a House bill based on the model legislation was introduced two weeks ago, was the first among the states to file legislation. Also pending are federal House and Senate measures introduced in January, the latter proposing a constitutional amendment.

In a post earlier this week, legal experts gave their take on where it goes from here. An outright constitutional amendment, the likes of which has not been seen in many years, would face stiff odds. But the state approach, intended to land states that approve laws based on the anti-birthright citizenship model legislation in federal court, could at least make it before a judge.

John Eastman, a Chapman University School of Law professor and former dean who helped draft the state bills, believes a constitutional reinterpretation is feasible. He said in a phone interview earlier this week:

If I am wrong about what the 14th Amendment means, which is what the court actions would test, then the only way to do it (to end birthright citizenship) would be by constitutional amendment. If I am right about what the 14th Amendment means, then simply clarifying that, that ‘subject to the jurisdiction’ means allegiance-owing and not territorial, would accomplish the end goal here without having to have a constitutional amendment.

Adam Winkler, a professor and constitutional law expert at the UCLA School of Law, said these proposals are unlikely to make it past the courtroom. He wrote in an e-mail:
These laws might lead to lawsuits that bring the question of birthright citizenship into the courts. Yet the courts traditionally defer to the federal government on immigration matters and this attempt to create a permanent underclass of undocumented residents is contrary to current federal policy. The courts are likely to see the birthright citizenship laws as just another example of states trying to hijack immigration law because they don't like how the federal government is applying it.

Meanwhile, other proposals are in the works. Pennsylvania Rep. Daryl Metcalfe, the leader of an immigration-restriction coalition called State Legislators for Legal Immigration which unveiled the model legislation in early January, said in an interview last week that legislators from about 18 states have expressed interest in introducing versions of the legislation and that bills are in the works in Montana, Michigan, Georgia and Pennsylvania.