Document Type

Article

Publication Date

Spring 2001

Keywords

Birthright citizenship, Naturalization, Jus soli, Jus sanguinis, Chinese Exclusion Acts, United States v. Wong Kim Ark, State sovereignty, Peter Schuck, Rogers Smith, Federal common law

Disciplines

Common Law | Constitutional Law | Immigration Law

Abstract

This article considers the inheritance of the seventeenth-century English common law conception of the subject in nineteenth-century America and, ultimately, in the Supreme Court’s decision in United States v. Wong Kim Ark (1898). It examines the claims for birthright citizenship derived from British common law and the three principal arguments against them. These latter included: objections to the assertion of a federal common law of citizenship from the perspective of state sovereignty; arguments that the United States should embrace citizenship by blood rather than by birth in order to conform to the practice of the law of nations and other - civil law - countries; and, finally, the social contractarian claim that citizenship should be based on the consent of both the nation and the prospective citizen, rather than derived from a feudally based ascription. The article concludes by discussing Peter Schuck and Rogers Smith’s Citizenship without Consent, which recapitulates some of the arguments against birthright citizenship, and explaining why the common law practice, despite originating in the context of monarchical sovereignty, should be retained in the United States today.

Comments

Article predates the author's affiliation with Cornell Law School.

Publication Citation

Published in: Georgetown Immigration Law Journal, vol. 15, no. 3 (Spring 2001).

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