Blog of the International Journal of Constitutional Law

What would happen if the U.S. repealed the 14th amendment?

So many constitutional issues came up in the context of the 2010 U.S. election that I’m just now summoning the energy to react to them. One issue was the provocative proposal by Senators Jon Kyl and Lindsay Graham (among others) to repeal the 14th amendment, or at least that part of the amendment that grants citizenship to all those born in the territory of the United States. The news cycle being what it is, the proposal didn’t gain more than a week of traction after its first splash and I haven’t heard much of it since. I don’t doubt, however, that we’ll hear it again once the next round of anti-immigrant fervor revs up (or even before then). The proposal may even be in the wish list of the new class of legislators, who knows. We know that John Boehner, the new Speaker of House, is on record as a strong supporter of repeal. In that event, it might be prudent to speculate about the consequences of a repeal of the 14th amendment.

Presumably, the preferred alternative of those who would repeal the right to jus soli citizenship would be some version of jus sanguinis policy, whereby birthright citizenship is conferred upon only those with some claim to U.S. lineage. But exactly what alternative policy Kyl, Graham, Boehner and friends have in mind is unclear.

One thing that we can observe (thanks to CCP data) is that, were the United States to move towards jus sanguinis, it would not find itself alone. Indeed, the trend in immigration law over the last two centuries in unmistakably towards jus sanguinis. At the beginning of the 20th century 60% of constitutions provided for birthright citizenship for the native-born; by 2000, 35% did.

One wonders, of course, what U.S. society would be like under a jus sanguinis policy? Assuming that immigration patterns continue and fertility rates within the immigrant population remain constant, one direct effect would seem to be a significant increase in the number of non-citizen residents and, more strikingly, an abrupt spike in the number of non-citizen minors. So, fewer naturalized citizens and fewer birthright citizens as a proportion of the immigrant population and in absolute terms. Of course, the assumptions of constant immigration and immigrant fertility are in question and, indeed, the very target for repeal advocates (call them repealers). Repealers would argue, we can assume, that immigration rates and immigrant-fertility rates would decrease once the citizenship incentive is removed. Or at least those repealers who are alarmed about the specter of “anchor babies” presumably think so.

Some social scientist will no doubt be able to answer these demographic questions if they haven’t been answered satisfactorily already. The analysis should be straightforward. Since a number of countries have shifted their citizenship policies to and from jus soli, one might gain some purchase on that question by looking at the relevant demographic data in those countries over time. I’m not sure whether population researchers have addressed that question or what their findings are, but if anyone can point me to some research, I would be obliged.

Apart from any demographic effects, it seems likely that a change in policy would have strong downstream effects on national unity across ethnic groups in the United States. As we know, the jus soli provision in the 14th amendment was adopted precisely to ensure that former slaves, and their children, could enjoy their full rights as citizens – certainly a necessary but insufficient step in achieving their full integration into American society. It’s seems possible that this measure has achieved stronger effects for immigrant groups that came later as well.

Indeed, in measures that John Sides and I have used to tap the concept of national unity in multiethnic states, the United States fares quite well. For example, blacks and latinos in the United States are as likely to say that they are “very proud” to be American as are whites. This stands in stark contrast to most multiethnic states in which minorities exhibit significantly less national attachment than do majority citizens. Could it be that jus soli has something to do with this? I think so. Sides and I are looking at data across a set of multi-ethnic states and have noticed some intriguing effects: on average, minority citizens in jus soli countries show “very proud” rates that are 10 points higher than those of minority citizens in jus sanguinis countries. These effects stand after controlling for a host of factors, including (crucially) the level of pride among majority citizens in the country.

These effects, if born out (Sides and I are still investigating), would make jus soli citizenship one of the most effective institutional solutions to ethnic disharmony that multiethnic states have at their disposal. Power sharing institutions like federalism and PR electoral systems are the most prescribed treatment for divided democracies. But with respect to indicators like the national attachment of minority citizens, power-sharing institutions like federalism and proportionally representative electoral systems do not even move the needle on national unity. Citizenship policies, which obviously focus directly on inclusion, may be a better drug.


3 responses to “What would happen if the U.S. repealed the 14th amendment?”

  1. Trent Avatar

    Interesting post. One quick point…Maybe when the majority and minority ethnic groups are equally prideful that is a reflection not of the minority groups feeling more prideful but of the majority feeling less prideful. Perhaps if the US was under a jus sanguinis policy, there would be no effect on the pride of any ethnic group other than whites, and they would be 10 points more proud. After all, the more selective the club, the more proud some are to be a part of it. So would a net increase in pride result in ethnic disharmony?

  2. Zach Elkins Avatar
    Zach Elkins

    That could very well be. I will have to check the data and see if there is any relationship between jus sanguinis and majority pride. Anecdotally, I know that Germany has one of the lowest levels of pride (for both minorities and majorities) and has a restrictive jus sanguinis policy. Of course, Germany is exceptional — citizens of the axis powers are all low on pride in these surveys (for now at least!).

  3. Anonymous Avatar

    can you be more clear on the effects of having the 14th ammendment in the 1st place.

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