By ‘Femi D. Ojumu
Notwithstanding its striking contradictions and socio-political challenges, the United States, a foundation UN member, remains a bastion of democracy, freedom, and liberty in the free world. The country played a pivotal role in the allies’ defeat of Nazi Germany in WWII (1939-1945), andreceived over 200,000 Jews who escaped according to the National WWII Museum, New Orleans. Hitherto, fleeing persecution, through 1881and 1924, 2.8 million Jews emigrated from Europe to the U.S. (Minnesota Historical Society:259).
Those libertarian propositions are re-established by the fact that the country boasts the largest ($30 trillion) economy globally, is home to leading research institutions including Harvard, Princeton, Stanford, Yale etc, and has the largest technology companies in the world. The top 10 alone grossed over $20 trillion in 2025! Its $850 billion defence budget reinforces agile tech-based trans-continental military capability,outperforming other countries;leads NATO, is a pivotal UNSC permanent five (p5) member with veto-wielding powers. Then, the captivating attraction of the USA as a land of hope, opportunity, and safety for legal and illegal immigrants, from aroundaferociousconflict-laden world, is readily comprehensible.
The countervailing proposition amongst the USA’s many contradictions, is that its presidential democratic system grants uber-excessive executive powers. Therefore, a president who controls the Congress (the Senate and the House of Representatives) runs a de facto fiefdom with quasi-universal powers. Because the president makes law, through the development of secondary legislation (executive orders!); can ignore the measured constraints of international law by adopting isolationist decisions so long as objectively or subjectively justified as possessing serious geostrategic risks to the country’s strategic interests.
Evidence? The 2003 U.S. invasion of Iraq subsequently declared by the UN as illegal; the March 2025 U.S. strikes on Houthi rebels; the 2025 U.S. sanctions against the International Criminal Court etc.Plus, the U.S. has some of the highest rates of homelessness and murders, 771,480 and 24,849, respectively in 2024in the developed economies. Notwithstanding those significant sociological challenges, they do not reverse the USA’s appeal as abastion of freedom. That foundation segues into the political dynamiteof birthright citizenship.
The latter confers U.S. citizenship on persons born on territory applying the maxim of jus soli (right of the soil); and those who acquire it by blood via the principle of jus sanguinis (right of blood consanguinity), where citizenship is granted to persons born abroad to parents who themselves are U.S. citizens. Arguably, there is no rational basis why a child born on U.S. soil should be denied citizenship by deductive reasoning. That is, no child born into this world chooses his/her parents, neither does such a child elect the geography nor the circumstances of such birth.
Therefore, as a function of commanding logic, why should that a child be deprived of the chancy-benefits of the geography of birth. Extending that reasoning, should a new-born-child be vicariously liable for the criminality of his/her parents over which the child had absolutely no control? No! However, logic alone does not govern statecraft, neither does it regulate ideology. What does? Raw emotions!
Naturalisation, is another legal process by which citizenship can be acquired. However, because that defies the material ingredient of birth, it falls outside the scope of this assessment.
The overriding philosophy of birthright citizenship is rooted in the 14th Amendment to the U.S. Constitution, ratified in 1868. Section 1 thereof, establishes that: “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The provision is a foundational kernel of U.S. jurisprudence insofar as it plainly crystallises the rule of law, equal protection, justice, and equity for all U.S. citizens. Immigrants, ethnic minorities, and disadvantaged groups, seeking legal protection continually rely on this germane statute.Via its Equal Protection Clause, the pivotal enactment has enhanced the protection of civil rights in that it has been utilised to overturn discriminatory laws based on race, gender, religion and other criteria. It remains a cornerstone legislation which has further catalysed far-reaching reforms in American democracy and voting rights.
Indeed, whilst the Supreme Court of the United States (SCOTUS) in Plessy v Ferguson (1896) validated whacky racial segregation in public facilities; that decision was upturned fifty-eight years later, in the ground-breaking Brown v Board of Education (1954). The latter declared racial segregation in public schools unconstitutional and therefore unlawful! Chief Justice Earl Warren in a compelling unanimous decision, opined that where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms. And that segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities.
The Supreme Court held that the impact of racial segregation “is greater when it has the sanction of the law …in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the 14th Amendment.”
The Supreme Court, citing the Equal Protection Clause within the 14th Amendment in Loving v Virginia (1967), overturned laws banning interracial marriages. Citing the due process clause of the 14th Amendment, SCOTUS validated a Washington State law affording grandparents the right to see their grandchildren in Troxel v Granville (2000). Again, the Supreme Court, relying on the 14th Amendment granted homosexuals and lesbians the legal right to be united matrimonially in Obergefell v Hodges (2015)!
Nevertheless, the 14th Amendment, upon which birthright citizenship is anchored, has been hotly contested over for decades. Proponents, seek an expansive interpretation of the statute whilst its opponents demand a narrow explication. For the proponents, it confers the advantage of seamless automatic citizenship irrespective of the geography of a child’s birth which by reasonable analysis, is entirely predicated on chance.
Second, it defies the legality or illegality of a child’s parent’s immigration status applying the principle of jus soli (supra); in that the child is born into the world innocent and is therefore independently treated as such, by the Constitution. Ergo, no vicarious intergenerational liability attaches to children born on U.S. soil or territorial jurisdictions.
Third, birthright citizenship optimises prospects of civic participation, social mobility, deeper integration within American society with the attached benefits that confers (as the world’s most powerful country) and the exposure to the corresponding risks! Fourth, birthright citizenship confers the advantage of economic benefits, means-tested healthcare and social benefits for the most vulnerable.
Fifth, an important historical inference stemming from the 14th Amendment, relative to the birthright citizenship, is that the original indigenous U.S. inhabitants were.Native Americans (widely defined). These included Cherokees, Iroquois, Navajos, and Siouxs. Plus, Alaska Natives like the Athabascans, Aleuts, Inupiats, Yupiks and original Hawaiians. All other communities were non-indigenes and therefore migrated from other climes! European colonisers, although early settlers, were never indigenous in present day U.S.
The argument therefore is that if non-indigenous European settlers, Jews, et al, benefitted inter-generationally, over many centuries, from birth right citizenship why shouldn’t others, so long as it is within the limits of constitutional provisions?!
There are important counter arguments too. First, is that birthright citizenship creates a perverse incentive for illegal immigrants to intentionally have children on U.S. territory, in the certain belief that the latter would benefit from the 14th Amendment provision.
This, is the “anchor baby” conundrum. The latter relates to the child of illegal immigrants, born on U.S. soil, and therefore entitled to U.S. birthright citizenship, who subsequently files to legitimise his/her parents’ illegal migration status. Second, is the contention that birthright undermines cohesion, cultural identity and homogeneity.
The critique of this proposition however, is that the United States, is fundamentally, is a nation of immigrants. Therefore, the “homogeneity” proposition is fanciful nonsense!
Third, is that birthright citizenship risks compromising national security in that, a child with multiple nationalities may have a wavering commitment to American ideals. This, however, is a speciouscontention.
Afterall, the British wartime Prime Minister, Winston Churchill (1894-1965), was unwavering in his Atlanticism and Anglo-American credentials. His mother Jeanette “Jennie” Spencer-Churchill (1854-1921) was an American, entitling her son, Winston, to birthright citizenship. Fourth, is the contention that birthright citizenship is open to abuse and exploitation by human traffickers.
In the final analysis, migration is as old as humanity. Because every human being seeks refuge, safety, and aims to exploit opportunities for economic prosperity and development, the quest for U.S. birthright citizenship and prosperous nations will persist. The compelling inference here is that international peace and global prosperity are non-negotiable. A cavalier-devil-may-care foreign policy which catalyses warfare, although at-times inevitable, over sensible diplomacy, not only establishes causality regarding civilian and military casualties, it displaces millions of people and causes forced migration, spiking asylum and refugee claims; and illegal migration to wealthier nations.
Does that imply opening the floodgates to allow enemies, spies, and terroristsinto one’s country? No!! Sovereign autonomy, exclusively, and rightly, regulates birthright citizenship, immigration, naturalisation etc, and therefore empowers nations to determine persons to admit (or deny admission) into their country, the criteria thereof, and will continue to do so.
Should birthright citizenship be reformed? Of course! Congress exercises the constitutional right to amend or scrap any legislation, so that is entirely within its legislative competence. SCOTUS will also play a huge role in the interpretation of future cases before it on that material subject. Even so, tougher immigration controls remain deeply embedded within President Donald Trump’s ideological “America First” doctrine.
In other words, U.S. birthright citizenship is by no means sacrosanct under his second and final tenure. Furthermore, that he’s appointed three additional conservative judges to the conservative-leaning SCOTUS, combined with his magisterial control of both Houses of Congress, suggests that the odds favour the Administration here. It is early days and should the current Administration embark upon that course of action, it certainly wouldn’t be without serious skirmishes through the State and Appellate courts, and ultimately, the SCOTUS.
Still, the United States is an imperfect democracy and whatever reforms are proposed, they should demonstrably accord with basic human decency, equity, fairness, justice, reason, and the rule of law.
Crucially, foreign policy choices have knock-on impacts on legal and illegal migration ditto the scale of birthright citizenship. Robust analysis, not emotive dogma, on the nexus between that trifecta is vital to intelligently, and adaptively, frame policy responses on this important subject! Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria and the author of The Dynamic Intersections of Economics, Foreign Relations, Jurisprudence and National Development.
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