480
Breyer, J., dissenting
Montana v. Kennedy, 366 U. S. 308, 311-312 (1961); Weedin, supra, at 663-664; Wong Kim Ark, supra, at 673-674. But even then, some courts, recognizing the importance of the right, found common-law authority for the transmission to those children of their parent's American citizenship. See Ludlam v. Ludlam, 26 N. Y. 356, 362-372 (1863); see also Lynch v. Clarke, 1 Sandf. Ch. 583, 659-663 (N. Y. 1844).
The history of these statutes does reveal considerable discrimination against women, particularly from 1855 to 1934. See ante, at 463-465 (Ginsburg, J., dissenting). But that discrimination then cannot justify this discrimination now, when much discrimination that the law once tolerated, including "de jure segregation and the total exclusion of women from juries," is "now unconstitutional even though [it] once coexisted with the Equal Protection Clause." J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 143, n. 15 (1994).
Neither have I found case law that could justify use here of a more lenient standard of review. Justice Stevens points out that this Court has said it will apply a more lenient standard in matters of " 'immigration and naturalization.' " Ante, at 435, n. 11 (quoting Mathews v. Diaz, 426 U. S. 67, 82 (1976)). But that language arises in a case involving aliens. The Court did not say it intended that phrase to include statutes that confer citizenship "at birth." And Congress does not believe that this kind of citizenship involves "naturalization." 8 U. S. C. § 1101(a)(23) ("The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever" (emphasis added)). The Court to my knowledge has never said, or held, or reasoned that statutes automatically conferring citizenship "at birth" upon the American child of American parents receive a more lenient standard of review.
The Court has applied a deferential standard of review in cases involving aliens, not in cases in which only citizens' rights were at issue. See Mathews, supra (rights of alien
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