Linda S. Bosniak (Rutgers University School of Law, Camden) recently posted "Birthright Citizenship, Undocumented Immigrants and the Slavery Analogy." It is a version of the paper that she presented at the March 2012 conference "Born In the USA: The Politics of Birthright Citizenship in Historical Perspective" at the University of Maryland Center For the History of the New America. Here's the abstract:
The current controversy over territorial birthright citizenship in the United States links unauthorized immigration with slavery. Where ever one stands on birthright citizenship for US-born children of undocumented immigrants, everyone recognizes that the controlling legal standard was enunciated in the Fourteenth Amendment’s Citizenship Clause – itself a response to the iconic Dred Scott decision denying that people of African descent were, or could ever be, citizens. The jus soli rule in the U.S. has an earlier common law provenance, but because it was explicitly constitutionalized in the wake of the slavery conflict, the fate and meaning of today’s birthright citizenship controversy in the U. S. is necessarily refracted through the nation’s slavery experience. Certainly, disagreements abound about what exactly the Citizenship Clause has to say about extending citizenship to children born in the US of unauthorized immigrants, but the debates take as given that our current discussions over assignment of territorial birthright citizenship issue from the Fourteenth Amendment, thereby traversing the ground of the nation’s struggle over slavery and its aftermath.You may download the full paper here, at SSRN.
This genealogy distinguishes the birthright citizenship controversy in the United States from debates on the subject in other national settings. In Ireland, for example – a country which recently eliminated birthright citizenship by constitutional amendment – a history of slavery does not figure as specific horizon or constraint.
But other than recognizing the particular path dependency of the debate, what do we take from this fact? What is the significance of this historical sequencing? Are the institutions of slavery relevant to the current birthright citizenship debate in any internal, analytical sense? In other words, is their convergence by way of the Citizenship Clause simply a temporal happenstance which now distracts rather than enlightens, or does the slavery question represent something which – analytically and normatively – properly informs our approach to the citizenship question today?
This essay is part of larger project on the specific nature of undocumented alien status in the liberal democratic polity.