The Debate Over Birthright Citizenship: A Comparative Perspective on the U.S. and Australia
Birthright citizenship, also known as jus soli (right of the soil), is a legal principle granting automatic citizenship to individuals born within a country’s territory, regardless of their parents’ nationality or immigration status. This principle has been a cornerstone of American law, enshrined in the Fourteenth Amendment to the United States Constitution. However, it has faced renewed scrutiny, particularly following former President Donald Trump’s attempts to challenge its application via executive order. A comparison with Australia’s history of birthright citizenship, which was removed in the 1980s, offers important insights into the complexities of this issue.
The United States and Birthright Citizenship
The Fourteenth Amendment, ratified in 1868, guarantees that "all persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Initially introduced to grant citizenship to formerly enslaved individuals after the Civil War, the amendment evolved to form the basis of jus soli in the U.S.
Critics of this policy argue that it encourages "birth tourism" and incentivises unauthorised immigration. They claim that individuals exploit the principle by entering the U.S. to give birth, thereby securing citizenship for their child and potential immigration benefits for the family. Proponents, on the other hand, maintain that birthright citizenship is a fundamental principle of equality, ensuring that all individuals born in the U.S. have the same rights, irrespective of their background.
In 2025, Trump reignited this debate by proposing an executive order aimed at ending birthright citizenship for children of unauthorised immigrants and non-citizens. While the move sparked significant controversy, its legal validity remains unclear. Constitutional scholars widely agree that altering this policy would require a constitutional amendment—a far more challenging process than an executive order. Historically, the U.S. Supreme Court has consistently upheld the Fourteenth Amendment’s provisions, further complicating efforts to restrict birthright citizenship.
Australia’s History with Birthright Citizenship
Australia offers a compelling case study as a country that once had birthright citizenship but later repealed it. Until 20 August 1986, Australia granted automatic citizenship to anyone born within its borders, a practice rooted in British common law traditions.
However, the Australian Citizenship Amendment Act 1986 significantly curtailed this right. Automatic citizenship was restricted to children born in Australia only if at least one parent was an Australian citizen, permanent resident, or eligible New Zealand citizen. This marked a move away from jus soli towards jus sanguinis (right of blood), where citizenship is primarily determined by descent rather than place of birth.
The rationale for this shift included:
Preventing Exploitation: Concerns arose about individuals entering Australia temporarily to give birth, thereby securing citizenship for their children.
Strengthening National Identity: The reform aimed to ensure that citizenship reflected a meaningful connection to the nation, such as parental ties or long-term residency.
Under current Australian law, children born in Australia to non-citizen parents can acquire citizenship only if they reside in the country until their 10th birthday, provided they have not spent extended periods abroad. This policy strikes a balance between accommodating jus soli principles and maintaining stricter immigration controls.
Lessons from Australia for the United States
Australia’s example highlights both the benefits and challenges of reforming birthright citizenship. While such changes can address concerns about potential misuse, they also create complexities:
Legal and Ethical Implications: Restricting birthright citizenship raises questions about equality, human rights, and national identity.
Administrative Challenges: Reforms often increase the administrative burden by requiring detailed checks on parental status, complicating birth registration processes.
Risk of Statelessness: Policies aimed at limiting citizenship may inadvertently create stateless individuals, especially in cases where a child’s parents lack citizenship in another country.
For the U.S., attempts to alter birthright citizenship would face significant legal and political hurdles. Unlike Australia, where legislative changes could be enacted, the U.S. would need a constitutional amendment, requiring broad political consensus. Furthermore, the principle of equality enshrined in the Fourteenth Amendment would likely fuel prolonged legal challenges.
The debate over birthright citizenship encapsulates broader societal questions about inclusion, national identity, and the rights of individuals born within a country’s borders. While Australia successfully reformed its citizenship laws in the 1980s, the United States operates under a constitutional framework that poses substantial barriers to similar changes. As the global conversation around citizenship continues, policymakers must weigh the legal foundations, ethical considerations, and practical implications of any proposed reforms.
For expert guidance on Australian citizenship or immigration matters, contact us at TooRoo Migration Lawyers—we’re here to help you every step of the way.
