Lewis Richardson

PHIL 105 – Section 001/002L

12 December 2019
Reforming the Naturalization Process: A Positive Analysis of the Doctrine of Jus Soli in
Modern United States Jurisprudence
Abstract
Throughout the duration of our nation and the history of state citizenship law worldwide,
there exists a common thread linking many nations in the Western Hemisphere: the principle of
jus soli. According to 8 USCS § 1401, the principle of jus soli is codified within United States law
and continues to exist as the primary and most straightforward path to acquiring citizenship.
Bearing this in mind, the presence of a naturalization and citizenship doctrine is imperative
to any country which seeks to maintain its borders and exercise population control, as the integrity
of elections and presence of social services requires some sort of exclusivity to remain efficacious.
With knowledge of this, this paper will argue in favor of maintaining the doctrine of jus soli and
instead advocate for a modification of its naturalization laws to provide a more equitable
citizenship process. This paper will use the opinions of United States v. Wong Kim Ark (1898) and
Perkins v. Elg (1939) extensively to elucidate the legal grounds for such a position. In doing so, I
will argue that the maintenance of jus soli is not only consistent with the tradition of American
jurisprudence but also politically and organizationally pragmatic for those in power.

Section I: The Modern American Immigration Zeitgeist

When considering the modern notion of a state as a political entity, it is critical to consider
that the most important capital that any can possess is its population. Without a specific group of
people, a state is but a geographic designation. With the tremendous importance of maintaining
and preserving its population, a state is given an obligation to establish and control its membership
within its political system. In the modern world, such a ‘membership’ arises via the concept of
citizenship, though the way in which individuals earn this inclusion in the system can vary from
place to place.
Within the United States, the idea and method of conferring citizenship have expectedly
been a point of contention throughout its tempestuous history. Known to many as the world’s
‘melting pot,’ the very existence of the United States is grounded upon the human phenomena of
immigration. Despite America’s history of both forced and voluntary migration, it seems that amid
the worldwide political climate of the present-day the nation is less receptive to ‘outsiders’ than
ever before. Politically speaking, the question of who ought to be considered a citizen and on what
grounds citizenship should be granted has been an issue of tremendous contention in recent years.
This issue is heightened by a variety of factors, though globalization and a trend of international
displacement of persons have made questions concerning citizenship timelier and more pertinent
than ever.
 Within the history of the United States, the traditional means by which citizenship is
afforded is grounded in the doctrine of jus soli (“law of the soil”). Simply put, this legal doctrine
essentially states that the “citizenship of a person is determined by the place where a person was
born.”1Although it arose from English Common Law, the doctrine has served as a critical aspect
of American culture and has ensured a practically impartial means of acquiring citizenship into the
present day. Despite this foundation, the idea of ‘birthright citizenship’ has received scrutiny for
its inclusivity and characterized as antiquated by many conservative commentators from within
the United States.
Bearing current events and the political system of the world in mind, it is vital that one
does not neglect the robust history of American jurisprudence that has been established concerning
the topic of immigration and citizenship status. Though the doctrine of jus soli is enshrined in the
language of the 14th Amendment, the majority opinions of United States v. Wong Kim Ark (1898)
and Perkins v. Elg (1939), and 8 U.S. Code § 1401, the geopolitical pressure generated by modern
immigration has prompted a reactionary response to this method of citizenship conferral. Despite
this, Garrett Epps argued contrary to this phenomena in the American University Law Review
when he wrote:
Constitutional and legal norms may influence how migration affects our society in the
present, but they do not create the force of migration and, no matter how altered, cannot
abolish it. To focus immigration policy on somehow doing away with migration is likely
to prove as futile as would be a climate policy based on outlawing the retreat of the Arctic
icecap.2
Epps’s quote points out that a modification of the current naturalization laws will neither thwart
the allure of immigration nor will it affect the already diverse landscape of America — such
heterogeneity is, thankfully, inevitable.
Clearly, the United States has an incentive for maintaining some form of exclusivity
regarding citizenship should its political system continue to function effectively on behalf of its
existing citizens. On this, I will explore both the historical underpinnings of jus soli as well as the
legal precedent that legitimizes it to the current day. Throughout the duration of this essay, I will
support the continued use of the precedents established by United States v. Wong Kim Ark (1898)
and Perkins v. Elg (1939) (via the 14th Amendment) and the doctrine of jus soli and instead
advocate for a change in naturalization laws. Moving forward, the United States government ought
to recognize both the practical egalitarian values that such a doctrine supplies as well as the
political pragmatism that legislation modification affords over Constitutional revision.

Section II: A Brief History of American Citizenship Jurisprudence

1
US Legal, Inc. “Jus Soli Law and Legal Definition.” Jus soli Law and Legal Definition. USLegal. Accessed
December 6, 2019. https://definitions.uslegal.com/j/jus-soli/.
2
Epps, Garrett. “The Citizenship Clause: A ‘Legislative History.’” American University Law Review 60, no. 2
(2010). http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1607&context=aulr.
 Throughout the history of the United States — a nation of immigrants — it is clear that the
process for naturalization is largely what formed the political and social landscape present today.
Without the promise of religious liberty, economic opportunity, or a variety of other freedoms,
America would not have attracted the pool of citizens that have made it an international
powerhouse to this day. Of course, the process for naturalization is significantly different today
than it has been for a majority of United States history; gone are the days of entering at Ellis Island
and being left to fend for yourself in your new land.
It is critical to point out that within the scope of this essay, two very distinct things will be
discussed which both contribute to the conversation about citizenship within America. The first,
the doctrine of jus soli, practically applies only to those who are born within the United States or
its geographic jurisdiction. This is codified in 8 U.S. Code § 1401 which is titled “Nationals and
citizens of United States at birth.”3 By contrast, the 8 U.S. Code § 1101 line 23 makes it clear that
“The term “naturalization” means the conferring of nationality of a state upon a person after birth,
by any means whatsoever.”4 At this distinction, these two different issues ought to be addressed to
ensure that each issue is addressed accurately.
The first topic of discussion, the doctrine of jus soli or birthright citizenship is, at least in
my opinion, significantly more straightforward to analyze. Though it arises from the U.S. Code
and is legislatively instituted, the precedent for this has a long history which brought it to its current
point. Similar to most early American law, the concept of birthright citizenship has its roots in
English Common law. This tradition can be identified in a 1608 case known as “Calvin’s Case”
(77 Eng. Rep. 377), in which it was written that “a person's status was vested at birth, and based
upon place of birth—a person born within the king's dominion owed allegiance to the sovereign,
and in turn, was entitled to the king's protection."5
The 14th Amendment was written on these grounds and became perhaps the most important
Constitutional Amendment outside the Bill of Rights. Written as one of three ‘Civil War
Amendments,’ no single Amendment has had near the effect on American civil rights
jurisprudence into the current day.6 The Amendment is separated into four distinct parts, though
of particular importance to the discussion on jus soli is the first sentence of Section 1 which is
known as the Citizenship Clause. In its completion, the Amendment is as follows:
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. 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

3
U.S. Code. “8 U.S. Code § 1401 - Nationals and Citizens of United States at Birth.” Legal Information Institute.
Legal Information Institute. Accessed December 6, 2019. https://www.law.cornell.edu/uscode/text/8/1401.
4
U.S. Code. “8 USC § 1101: Definitions.” 8 USC § 1101: Definitions. Accessed December 6, 2019.
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1101&num=0&edition=prelim.
5
Justice, Elaine. “Rice Questions Whether Birthright Citizenship Will Continue.” Emory.edu. Emory University,
1996. http://www.emory.edu/EMORY_REPORT/erarchive/1996/October/ERoct.7/10_7_96price_questions.html.
6
The Civil War Amendments include the 13th, 14th, and 15th Amendments.
 due process of law; nor deny to any person within its jurisdiction the equal protection of
the laws.7
Though it is vital that the Amendment be read in its entirety to clearly see the tremendous amount
of rights it confers to Americans, the italicized section makes it quite clear how critical birthright
citizenship is to the United States.
Further, The Immigration and Nationality Act (INA § 301(a)), enacted in 1952, expands
upon the Citizenship Clause and unambiguously declares certain persons to be U.S. citizens and
nationals at birth. It states that “a person born in the United States, and subject to the jurisdiction
thereof” is a “national… and citizen… of the United States at birth.”8 Further, the INA extends the
Citizenship Clause at birth to more specific groups of persons not protected exclusively by the 14th
Amendment. For example, the INA includes language which says that those born abroad to parents
who both have U.S. citizenship are also conferred birthright citizenship.9
Looking back though, perhaps the most important interpretation of the 14th Amendment
when considering any discussions on birthright citizenship and naturalization as a whole has arisen
from the Supreme Court of the United States. The most critical decision made by them occurred
in United States v. Wong Kim Ark, 169 U.S. 649 (1898). As a summary, this case evolved out of
the Chinese Exclusion Acts, which denied citizenship to Chinese immigrants. In addition to this
stipulation, by treaty, no Chinese citizen taking residence in the United States at the time was
permitted to become a naturalized United States citizen. Wong Kim Ark, whose parents were both
Chinese citizens (not U.S. citizens), was born in San Francisco and lived in the United States at
the time of the case. At age 21, Wong Kim Ark went to China to visit his parents who had formerly
lived in the United States for 20 years. Following the visit, Wong attempted to reenter the United
States and was denied entry on the ground that he was not a citizen.10
Of course, such a case links directly to any discussion on birthright citizenship, and Wong
sued the United States government on the grounds of the 14th Amendment’s Citizenship Clause.
Though his parents were not U.S. citizens, Wong was born in the land and claimed that he ought
to be granted citizenship by virtue of his geographic location. The court agreed with him, ruling
6-2 in his favor and establishing the doctrine of jus soli as applicable to those whose parents are
not United States citizens. The majority opinion was authored by Justice Horace Gray. In this, he
remarked: “There is, therefore, little ground for the theory that, at the time of the adoption of the
Fourteenth Amendment of the Constitution of the United States, there was any settled and definite
rule of international law, generally recognized by civilized nations, inconsistent with the ancient
rule of citizenship by birth within the dominion.”11 In this, Justice Gray remarks upon the tradition
of jus soli in law codes internationally and makes it clear that because there is no preexisting

7
U.S. Const. amend. XVIII (Emphasis added on the Citizenship Clause)
8
8 U.S. Code § 1401 - Nationals and Citizens of United States at Birth.
9
This is known as the doctrine of jus sanguinis.
10
U.S. Supreme Court. “United States v. Wong Kim Ark, 169 U.S. 649 (1898).” Justia Law. Accessed December 6,
2019. https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918089.
11
Ibid.
statutory definition for what qualifies one as a citizen, it is the role of the Court to define it. He
does this clearly when he writes:
The effect of the enactments conferring citizenship on foreign-born children of American
parents has been defined, and the fundamental rule of citizenship by birth within the
dominion of the United States, notwithstanding alienage of parents, has been affirmed, in
well-considered opinions of the executive departments of the Government, since the
adoption of the Fourteenth Amendment of the Constitution.12
This legitimizes the application of the doctrine of birthright citizenship from the language of the
14th Amendment and established the standard that many naturalization cases follow to the present.
Of course, the decision given in United States v. Wong Kim Ark was not unanimous, with
two Justices dissenting. The minority or dissenting opinion was written by Chief Justice Melville
Fuller and provided a scathing rebuttal to Justice Gray’s opinion. In this, he wrote in no uncertain
terms:
…the Fourteenth Amendment does not exclude from citizenship by birth children born in
the United States of parents permanently located therein, and who might themselves
become citizens; nor, on the other hand, does it arbitrarily make citizens of children born
in the United States of parents who, according to the will of their native government and
of this Government, are and must remain aliens.13
In more practical terms, this means that the Chief Justice Melville writes that “Wong Kim Ark
never became and is not a citizen of the United States, and the order of the District Court should
be reversed.”14 With this, he is wholeheartedly denying the legitimacy of the doctrine of jus soli
produced by the majority, instead favoring a more exclusionary policy that would rest in
legislative control.
Building on the legal tradition established by the Court in United States v. Wong Kim
Ark, a 1939 decision, Perkins v. Elg, further contributed to the validity of jus soli as a legal
doctrine. This case involved Marie Elg, a woman born in America in 1907 to Swedish parents.
Though she was born in the United States, Marie Elg was raised in Sweden and, upon turning 21,
obtained a United States passport and tried to take up residence in America. Despite being born
in the United States, the government (via the Department of Labor) tried to deport her on the
grounds that under Swedish law she had become a Swedish citizen, thereby losing her American
citizenship. She contested this in court, using the 14th Amendment’s Citizenship Clause as the
justification. Upon being granted a writ of certiorari, her case was unanimously decided in her
favor by the Supreme Court, which ruled that she did, in fact, possess United States citizenship
and that the actions of her parents did not negate her right to reclaim it upon reaching the age of
majority.15
Since the case was decided unanimously, only one opinion was provided as a result
which was authored by Chief Justice Charles Hughes on behalf of the court. In this, he wrote:

12
Ibid.
13
Ibid.
14
Ibid.
15
U.S. Supreme Court. “Perkins v. Elg, 307 U.S. 325 (1939).” Justia Law. Accessed December 6, 2019.
https://supreme.justia.com/cases/federal/us/307/325/.
 The child born of foreign parents in the United States who spends his minority in the
foreign country of his parents' nationality is not expressly required by any statute of the
United States to make the same election as he approaches or attains his majority. It is,
nevertheless, believed that his retention of a right to demand the protection of the United
States should… be dependent upon his convincing the department within a reasonable
period after the attaining of his majority of an election to return to the United States, there
to assume the duties of citizenship.16
This is followed up with equal veracity when he writes that “We conclude that respondent has
not lost her citizenship in the United States and is entitled to all the rights and privileges of that
citizenship.”17 In no uncertain terms, the Court reaffirmed the doctrine of jus soli unanimously in
this regard. Because unanimous decisions are so uncommon, it is of great value to note that no
concurring opinions were produced either; the Court unabashedly viewed birthright citizenship
as the most equitable and legitimate means to obtaining citizenship.
The process of naturalization follows a much different path. Although there is a
tremendous amount of jurisprudential precedent established with regard to naturalization, the
current system is of greater importance within the context of this article. As of now,
naturalization has nine requirements that must be met prior to beginning the process. Per the
United States Citizenship and Immigration Services (USCIS), they are as follows:
Be at least 18 years old at the time of filing Form N-400, Application for Naturalization.
Be a permanent resident (have a “Green Card”) for at least 5 years. Show that you have
lived for at least 3 months in the state or USCIS district where you apply.
Demonstrate continuous residence in the United States for at least 5 years immediately
preceding the date of filing Form N-400. Show that you have been physically present in
the United States for at least 30 months out of the 5 years immediately preceding the
date of filing Form N-400. Be able to read, write, and speak basic English. Have a basic
understanding of U.S. history and government (civics). Be a person of good moral
character. Demonstrate an attachment to the principles and ideals of the U.S.
Constitution.18
Of course, many of these are standard and apply across the world, though there is obviously
room for improvement on this. Throughout the next section of this article, I will explore my
primary justification for changing as opposed to modifying Supreme Court precedent and the
14th Amendment.

Section III: Reforming Naturalization: Policy Revision and Possible Solutions

In no uncertain terms, the 14th Amendment and its doctrine of birthright citizenship place
the emphasis on geographical location first and foremost; where you are when you are born is
significantly more important than who your parents are. While this commonly creates political
issues with illegal immigration, the vast majority of cases are not utilizing this exception
nefariously. Pew Research Center verifies this when they write:

16
Ibid.
17
Ibid.
18
United States Citizenship and Immigration Services. “Naturalization Information.” Naturalization Information.
Accessed December 6, 2019. https://www.uscis.gov/citizenship/educators/naturalization-
information#eligibility_reqmts.
 About 250,000 babies were born to unauthorized immigrant parents in the United States
in 2016, the latest year for which information is available... This represents a 36%
decrease from a peak of about 390,000 in 2007. The analysis follows President Donald
Trump’s announcement that his administration may seek to end “birthright citizenship.19
Of course, this statistic not only includes children born to illegal aliens, though it is important to
consider that “The number of babies born to unauthorized immigrant parents represented about
6% of the 4.0 million total births in the U.S. in 2016,” which is statistically unlikely to
dramatically alter the political or economic landscape of the United States.20
Bearing these facts in mind, I am wholly unconvinced that the issues raised by advocates
of changing birthright citizenship are nearly as significant as they are made out to be. In terms of
the effects that this has on the American people, it is clear that the general effect that it has on
existing diversity or class structures is marginal. Though from an organizational perspective the
ideal point for citizenship conferred to immigrants whose parents are undocumented immigrants
is zero, the quote introduced by Garrett Epps in the first section of this article ought to remain in
consideration. It is altogether impossible, short of closing a country’s borders entirely, to ensure
that no illegal immigration or citizenship obtainment occurs. Striving for such a reality through
the removal of the doctrine of jus soli will likely come with it a variety of worse issues for those
who use it to legitimately obtain citizenship.
The INA also discusses the necessity for extending the 14th Amendment to the
naturalization process as well. In the previous section, I concluded with providing the nine
qualifications that currently exist to begin the naturalization process. For more clarification, this
aspect of the INA lays out standards for naturalization which will serve as points of scrutiny in
where I will address tangible means of reform for the naturalization system. One standard that I
take issue with, the “good moral character” stipulation, is as follows:
He must be of good moral character and "attached to the principles of the Constitution".
The law states that an alien is not of good moral character if he is a drunkard, has committed
adultery, has more than one wife, makes his living by gambling, has lied to the Immigration
and Naturalization Service, has been in jail more than 180 days for any reason during his
five years in the United States, or is a convicted murderer.21
Although I see value in providing a stipulation for “good moral character,” doing so can serve as
a means for the exclusion that can be entirely arbitrary and biased against particular groups and
cultural backgrounds. Such a justification ought to serve as the first place of modification to
provide a more equitable and transparent system for naturalization that excludes biases.
In addition to this stipulation, it appears that the naturalization process comes with it a lack
of information access that may create issues for potential immigrants lacking significant financial
means. As of now, the USCIS currently offers no information to immigrants aside from what is

19
Passel, Jeffrey S., D’Vera Cohn, and John Gramlich. “U.S. Births to Unauthorized Immigrants Have Fallen Since
2007.” Pew Research Center. Pew Research Center, November 1, 2018. https://www.pewresearch.org/fact-
tank/2018/11/01/the-number-of-u-s-born-babies-with-unauthorized-immigrant-parents-has-fallen-since-2007/.
20
Ibid.
21
United States Citizenship and Immigration Services . “Naturalization Information.”
posted on their website and in their various offices.22 This makes them unable to receive updates
on their naturalization status, and in many cases, makes it impossible for them to actually complete
the process. Although this is no fault of their own, the USCIS does not contribute due to
insufficient funding and employment given their immense workload. This creates a clear
equitability gap throughout the process, with more financially stable individuals faring
significantly better off throughout the process.
Though I am not of the opinion that the naturalization laws require significant revision in
it of themselves, revising them is undoubtedly more practical and pragmatic than a revision of the
with ten of them arising through the Bill of Rights. The process for amending the Constitution is
purposefully difficult and requires a two-thirds majority vote in both the House of Representatives
and the Senate or by a constitutional convention called for by two-thirds of the State legislatures
(which has never occurred). This makes such a revision to the 14th Amendment that does not have
widespread support a practically impossible and politically unpopular and unwise course of action.
Maintenance of the doctrine of jus soli paired with marginal changes to the naturalization
laws ensures that the country reaches the optimal point of equitability for its citizens. Maintaining
this doctrine is compatible with jurisprudential precedent, as evidenced through United States v.
Wong Kim Ark and Perkins v. Elg. Moving into the future, the United States government ought to
keep such recommendations in mind if it is to serve as a diverse environment that maintains its
status as the ‘land of opportunity’ worldwide.

22
Ibid.
 Bibliography
Epps, Garrett. “The Citizenship Clause: A ‘Legislative History.’” American University Law
Review 60, no. 2 (2010).
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1607&context=aulr.

Justice, Elaine. “Rice Questions Whether Birthright Citizenship Will Continue.” Emory.edu.
Emory University, 1996.
http://www.emory.edu/EMORY_REPORT/erarchive/1996/October/ERoct.7/10_7_96pric
e_questions.html.

Passel, Jeffrey S., D’Vera Cohn, and John Gramlich. “U.S. Births to Unauthorized Immigrants
Have Fallen Since 2007.” Pew Research Center. Pew Research Center, November 1,
2018. https://www.pewresearch.org/fact-tank/2018/11/01/the-number-of-u-s-born-babies-
with-unauthorized-immigrant-parents-has-fallen-since-2007/.

U.S. Code. “8 U.S. Code § 1401 - Nationals and Citizens of United States at Birth.” Legal
Information Institute. Legal Information Institute. Accessed December 6, 2019.
https://www.law.cornell.edu/uscode/text/8/1401.

U.S. Code. “8 USC § 1101: Definitions.” 8 USC § 1101: Definitions. Accessed December 6,
2019. https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-
section1101&num=0&edition=prelim.

U.S. Supreme Court. “United States v. Wong Kim Ark, 169 U.S. 649 (1898).” Justia Law.
Accessed December 6, 2019. https://supreme.justia.com/cases/federal/us/169/649/#tab-
opinion-1918089.

U.S. Supreme Court. “Perkins v. Elg, 307 U.S. 325 (1939).” Justia Law. Accessed December 6,
2019. https://supreme.justia.com/cases/federal/us/307/325/.

United States Citizenship and Immigration Services . “Naturalization Information.”

Naturalization Information. Accessed December 6, 2019.
https://www.uscis.gov/citizenship/educators/naturalization-
information#eligibility_reqmts.

US Legal, Inc. “Jus Soli Law and Legal Definition.” Jus soli Law and Legal Definition.
USLegal. Accessed December 6, 2019. https://definitions.uslegal.com/j/jus-soli/.