Emma Vidal has eight children; the youngest four are United States citizens. The oldest four are not. They were born in Tecuatitlan, Mexico, where she and her family lived before immigrating to New York City illegally 20 years ago.. In Vidal’s eyes, all are the same. In the eyes of the U.S. government, they are different: four have the same rights and privileges that all Americans have; the other four are considered illegal immigrants and could be deported at any time.
A growing number of Americans think children such as Vidal’s should have no right to call themselves U.S. citizens even if they were born in the United States. They would like to change the nation’s birthright citizenship law to exclude the children of undocumented immigrants, thus dramatically altering the way the country has dealt with the concept of citizenship since the 14th Amendment was passed in 1868.
The mere mention of altering the Constitution has caused a national, but thus far mostly subdued, debate that points to larger questions: What makes an American citizen, and where do the concepts we rely on to answer this question come from?
Concepts of citizenship vary from country to country. Countries are generally placed in one of two categories: those that grant citizenship to people born within their borders, or as it is known in Latin, jus soli, such as the U.S., Mexico, Canada, Pakistan and Bangladesh, and those that grant citizenship based on lineage, or jus sanguinis. Most countries in the European Union fall under this category.
Only 20 percent of countries worldwide can be considered jus soli countries, according to a bulletin released by the U.S. Department of Justice in January. The other 80 percent are primarily jus sanguinis, with some making special provisions for children born within the country that would otherwise be stateless.
In the United States, citizenship is almost always framed in terms of the 14th Amendment, a law intended to grant citizenship to recently freed slaves at the close of the Civil War but that essentially installed birthright citizenship as a permanent component of American society.
The 14th Amendment states that “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,” and was meant to prevent individual states from passing their own laws denying citizenship and rights to former slaves.
However, some citizenship scholars, such as Rogers S. Smith, a professor of Political Science at the University of Pennsylvania, disagree with the notion of American birthright citizenship as a longstanding, agreed-upon concept.
“My argument is that there is no single conception of American citizenship and there never has been,” Smith argues. “There are multiple concepts and the laws that we have have resulted from political contests and compromises amongst these different concepts.”
Smith says that many states did not support the 14th Amendment but were forced to ratify it in order to be readmitted to the union. And, certain racial and ethnic groups, such as the Chinese, were still excluded from citizenship through other laws. These barriers to naturalization were not removed until 1952 when the law was amended to say that citizenship “shall not be denied or abridged due to race or sex.”
Some also claim that the writers of the Constitution did not originally intend for the law to cover the children of illegal immigrants. Smith says that it’s useless to try to determine this intent, especially since the documented and undocumented immigrant distinction did not exist at the time.
“There weren’t many federal restrictions on immigration, and the people who wrote the amendment were not thinking about undocumented immigrants,” he says.
But Garret Epps, a professor of law at the University of Baltimore and a specialist on the legislative history of the 14th Amendment, points to the framers’ treatment of another population that was also seen as living in defiance of U.S. law. Called “gypsies,” Epps says this group was the “closest thing the U.S. had at the time to illegal immigrants.” This population isolated itself from American society and did not pay taxes or serve in the military, yet Congress affirmed the rights of its children, born in the U.S., to American citizenship.
While the United States grapples with whom it should consider a citizen, some children of immigrants have trouble imagining themselves as anything but American.
Watch the children of immigrant families describe what being American means to them:
Ireen Ahmed, a 23-year-old medical student at SUNY Downstate in Brooklyn, was born in New York in 1988 after her parents migrated from Bangladesh. When asked what she felt made her American, she replies, “I’ve never really thought about it.”
Her friends and relatives, many of whom were born to parents who had overstayed visas, feel the same way. “They don’t know that they’re supposed to feel less ‘American’ than another kid born in the same place as them,” she said.
For Vidal’s older children, however, their inability to work or attend college is a constant reminder of their less-than-American status, though, culturally, they all feel American. Vidal said she has considered going back herself, “so that they can feel like they at least have a secure place in case things here don’t work out.”
Read a news analysis of the birthright debate.
See map of jus soli countries: