The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment

Section 1 of the Fourteenth Amendment begins by making clearthat All persons born or naturalized in the United States, and subjectto the jurisdiction thereof, are citizens of the United States andof the State wherein they reside. Questions about the scope of thisbirthright citizenship rule were largely settled by the late nineteenthcentury, and Congress has stepped in to provide statutory citizenshipto those individuals born in the United States-namely Native Americans-who have been found not to be constitutional birthright citizens. The only remaining controversy regarding the scope of the CitizenshipClause involves whether children born to unauthorizedimmigrants (a category unknown at the time the Citizenship Clausewas adopted), are subject to the jurisdiction of the United States,thus making them birthright citizens. This question launched an extendeddebate in the late twentieth century among scholars and advocates,largely as the result of the publication by Peter Schuck andRogers Smith of Citizenship Without Consent in 1985, in which they arguethat the original understanding of the Citizenship Clause did notsupport extending the jus soli rule to the children of the unauthorized