Birthright Citizenship

By Rachel Dworkin

Birthright citizenship has been in the news lately thanks to President Trump’s recent Executive Order 14156. The order ends birthright citizenship for the children of undocumented immigrants and legal migrants in the country on temporary work, student, or tourist visas. At present, nearly every country in North and South America has birthright citizenship, but the practice is rare in the rest of the world. Historically, its application in the United States has been…complicated.

Like most things about the American legal system, birthright citizenship in the United States has its roots in English common law. Traditionally, anyone born in the king’s domain was automatically a subject of the king, including anyone born in the Colonies. Following the American Revolution, a series of court cases confirmed that people born in the United States or its territories were automatically citizens…with exceptions. In Dred Scott v. Sanford (1857), the Supreme Court held that the U.S. Constitution only granted citizenship to whites and no one of African descent, whether free or enslaved, born here or not, could ever be citizens.

Today, the Dred Scott decision is widely regarded as one of the worst rulings the Supreme Court ever made. It was effectively overturned by the Citizenship Clause of the Fourteenth Amendment (adopted July 9, 1868). The clause states: 

"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." 

Even following the passage of the Fourteenth Amendment, there were questions about just who qualified when it came to birthright citizenship. In 1873, Wong Kim Ark was born in San Francisco, California to Chinese immigrant parents who were ineligible to become citizens themselves thanks to the Naturalization Law of 1802 which offered naturalization only to free whites. As a young man, Wong left to visit China and was subsequently denied re-entry to the United States upon his return thanks to the Chinese Exclusion Act of 1882 and a customs official’s refusal to acknowledge his citizenship. The case went all the way to the Supreme Court as United States v. Wong Kim Ark (1898). The court decided that the children of foreigners born on American soil were American citizens, whether the parents were eligible to become citizens or not. They made just four exceptions: children of foreign diplomats; children born on foreign public ships; children of enemy forces engaged in hostile occupation of the country’s territory, and children of Indian tribes (which were effectively considered sovereign peoples). This last exception was subsequently removed by the Indian Citizenship Act of 1924 which granted citizenship to all Native Americans.  

 

Wong Kim Ark, ca. 1904 (courtesy of Wikipedia)

So how does one prove American citizenship? These days, with a birth certificate, but it’s a relatively new phenomenon. In fact, for much of American history, birth records were held by churches, assuming there were even records at all. During the mid-1800s, different states began making a concerted effort to record births. New York State, for example, began collection birth records in 1881. Some counties and municipalities across the state began doing it earlier. New York City began recording births as far back as 1847. Chemung County has records going back to 1875, although not at the Historical Society.

The U.S. Public Health Service has a standard form for registering births, although many states have their own as well. The forms are completed by the attendant at birth or a hospital administrator and forwarded to the state and local health departments. In Chemung County, birth certificates are issued and held by the Chemung County Vital Records office at 103 Washington Street in Elmira. Parents receive a free copy of their child’s birth certificate and additional ones can be ordered for a fee. Everyone should have a copy of their birth certificate. You will need one when applying for a passport, driver’s license, or non-driver’s ID. You can request historical birth certificates for genealogical purposes from the Chemung County Vital Records office as well. 

Form for attendants at birth, ca. 1910s

 

Executive Order 14156 was signed on January 20, 2025. It was immediately challenged by the attorneys general of 22 states (including New York) and multiple organizations. Although it was initially slated to go into effect on February 19, 2025, it may never go into effect at all if the courts find it unconstitutional.