Born in the Americas: Birthright Citizenship and Human Rights
The Fourteenth Amendment was enacted to prevent discrimination against people of color, including immigrants of color. For many years, throughout different waves of immigration, birthright citizenship was the law of the land. It is no coincidence that birthright citizenship for children of undocumented immigrants is being seriously challenged now that the 2010 Census found that 23% of children in the United States are Hispanic, and many of their parents are immigrants. In addition, advocates for retracting birthright citizenship frequently rely on negative stereotypes about immigrant women. This Article emonstrates that international human rights law does not treat the right of sovereigns to make their own requirements for citizenship in a vacuum, but instead requires an analysis of factual context. The great majority of countries in the Americas provide birthright citizenship to children of undocumented immigrants, and Inter-American human rights law would prohibit its retraction in the United States, due to extreme discriminatory impact, and evidence of discriminatory intent set forth in this Article. The fundamental human rights that prohibit retraction of birthright citizenship are applicable in the U.S. legal system. Most importantly, policy-makers should be aware of the incompleteness of the argument that international law gives governments arte blanche to make decisions about citizenship rules. Although other countries do not provide birthright citizenship to children of undocumented immigrants, if the United States were to retract such citizenship from children of the current generation of immigrants and retrogress from the standard set by the Fourteenth Amendment, that move would be in violation of the most fundamental of all human rights: that each person should be treated equally and judged on their own merits.
Katherine Culliton. "Born in the Americas: Birthright Citizenship and Human Rights" Harvard Human Rights Law Journal 25.1 (2012).