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Abstract
The right to U.S. citizenship at birth, whether by birth on U.S. soil or by birth to a U.S. citizen overseas, is taken for granted and assumed immutable, yet legal categories of birthright citizenship have changed as dramatically as physical boundaries in United States history. The development of birthright citizenship policy was shaped by a wide variety of forces, ranging from U.S. Supreme Court decisions, to international treaties, to advocacy by political groups. This dissertation uses court cases from the U.S. Supreme Court and lower courts, including the U.S. Federal District Court of Puerto Rico, treaties, Congressional debates, contemporary law review articles, immigration and State Department records, and sources from the National Woman's Party, to study four critical periods in the history of U.S. birthright citizenship. In the first period, from the development of antebellum American birthright citizenship law to the passage of the 14th Amendment, lawmakers affirmed citizenship based on jus soli (nationality by birth on U.S. soil) and jus sanguinis (nationality through descent), setting the stage for later contests. In the second period, 1868-1898, the Supreme Court constitutionalized jus soli birthright citizenship "regardless of race," in U.S. v. Wong Kim Ark (1898). Although the Court affirmed the citizenship by birth on U.S. soil of a Chinese American, an examination of rights enjoyed by Wong and his descendants shows these rights, including the fundamental right to remain in the U.S., were constantly under challenge. In the third period, 1898-1917, I use Puerto Rico as a case study to show how the U.S. limited the rights of inhabitants of unincorporated territories in a series of legal decisions that used birthplace as a key criterion for individuals' access to rights. And in the fourth and final period, when the debate over birthright citizenship shifted to gender, U.S. women used international law to gain the right to transmit citizenship to their children born abroad in 1934. That right, paradoxically, helped set up a rigid category in nationality law, "women and children," that remains one of the final areas of sex discrimination in the U.S. code.
