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15 Geo. Immigr. L.J. 519 (2000-2001)
The Gestation of Birthright Citizenship, 1868-1898 States' Rights, the Law of Nations, and Mutual Consent

handle is hein.journals/geoimlj15 and id is 529 raw text is: THE GESTATION OF BIRTHRIGHT CITIZENSHIP,
1868-1898 STATES' RIGHTS, THE LAW OF
NATIONS, AND MUTUAL CONSENT
BERNADETTE MEYLER*
During the late nineteenth century, following the passage of the Fourteenth
Amendment, a series of debates were staged over the definition of citizen-
ship. These included controversies about the scope of citizenship by
birth-whom it encompassed and what rights it conferred. Each participant
in the discussion was obliged to contend with the language of the Fourteenth
Amendment, which specified 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.' Although the unequivo-
cal establishment of birthright, or jus soli, citizenship2-a principle that
found its fullest articulation in the landmark case United States v. Wong Kim
Ark3-resolved debates about the application of the Fourteenth Amendment,
this outcome did not appear inevitable from the vantage point of contempo-
rary commentators.
Professors Schuck and Smith, arguing that birthright citizenship is an
ascriptive principle anathema to the United States' otherwise consensually
based political system, assert that Birthright citizenship thus was formally
ratified [by the Fourteenth Amendment] as the principal constitutive status of
the American political community. Since that time, its legitimacy has not
been seriously questioned.4 This statement, however, omits from its scope
the crucial thirty-year period that elapsed between the ratification of the
* B.A., Harvard University, J.D. Candidate, Stanford Law School, Ph.D. Candidate, English,
University of California at Irvine (dissertation entitled Theaters of Pardoning: Sovereignty,
Judgment, and Revolution from Shakespeare to Kant). I would like to thank Jeff Atteberry, Ben
Heller, and Joan Meyler for their advice and assistance at various stages of writing, and Professor
Lawrence Friedman for providing helpful suggestions and giving direction to the project. I am
especially grateful to Professor Brook Thomas, who first interested me in questions of citizenship and
who has, ever since then, been an invaluable resource and mentor. I also appreciate the work of
Jonathan Su, Jeremy R. Tarwater, Anne McNicholas, Tara Owens-Antonipillai, and other members of
the Georgetown Immigration Law Journal.
1. U.S. CONST. amend. XIV, § 1.
2. In Black's Law Dictionary, jus soli (literally translated right of the soil) is defined as The
rule that a child's citizenship is determined by place of birth. BLACK'S LAW DICTIONARY 868 (7th ed.
1999). It is generally contrasted with the jus sanguinis (or right of the blood) method of
determining citizenship, which Black's states designates The rule that a child's citizenship is
determined by the parents' citizenship. Id.
3. 169 U.S. 649 (1898).
4. PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE
AMERICAN POLITY 2 (1985).

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