PROTECTING MINORITIES FROM DE FACTO
STATELESSNESS: BIRTHRIGHT CITIZENSHIP IN THE
UNITED STATES
MICHAEL SULLIVAN*
Birthright citizenship is the subject of intense political debate in the United States because of its
connection to the debate over unauthorised immigration and the inclusion of national minorities.
Similar debates have taken place in other common law countries, leading to the restriction of jus
soli birthright citizenship in the United Kingdom, Australia, New Zealand and Ireland. The
Supreme Court of the United States and United States Department of State’s interpretation of the
Citizenship Clause in § 1 of the Fourteenth Amendment ensures that all ‘persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United
States’, including the children of unauthorised immigrants. This article argues that the rule of jus
soli birthright citizenship in the United States is rooted in an older understanding of the birthright
of native-born British subjects, and later, American citizens, to enjoy the birthright of protections
and an ever-expanding set of rights based on where they were born, regardless of the status of
their parents. Stated in a way that included the children of slaves and immigrants as citizens based
on their birthplace alone, jus soli birthright citizenship in the United States remains a powerful
tool of inclusion for marginalised minority groups.
TABLE OF CONTENTS
Introduction ............................................................................................................. 66
Birthright Citizenship and National Minorities: An Overview ............................... 67
The Birthright at the Origins of American Political Membership ........................... 71
A Calvin’s Case: The Origins of Birthright Citizenship ................................. 71
Taking Their Birthright Elsewhere — Maintaining the ‘Rights of Englishmen’ in
America ................................................................................................................... 73
Citizenship by Birthright and Consent in the Founding Era and Early Republic.... 75
Dred Scott and Justice Taney’s Denial of the Birthright Citizenship Tradition ...... 78
Reconstructing Birthright American Citizenship During and After the Civil War . 79
The Controversy Over Allegiance and Expatriation in Great Britain and the United
States........................................................................................................................ 82
The Chinese Exclusion Cases and Inclusive Potential of Jus Soli Birthright
Citizenship ............................................................................................................... 83
Colonial and Imperial Exclusions: The Limits of Jus Soli Birthright Citizenship .. 84
A Colonial Exclusions in Great Britain and Its Dominions ............................ 86
Conclusion ............................................................................................................... 87
INTRODUCTION
The practice of jus soli birthright citizenship is the subject of intense political
contestation in the United States given its connection to the hotly contested
political debate over illegal immigration. The Supreme Court of the United States
(‘Supreme Court’) and the United States Department of State’s interpretation of
the Citizenship Clause in § 1 of the Fourteenth Amendment of the United States
Constitution (‘US Constitution’) ensures that all ‘persons born or naturalized in
*
Michael Sullivan is Associate Professor of International Relations at St Mary’s University in
San Antonio, Texas. He is the author of Earned Citizenship (Oxford University Press 2019).