Are illegal immigrants entitled to automatic citizenship in the U.S.A.—Citizenship and the Constitution?

Are illegal immigrants entitled to automatic citizenship in the U.S.A.—Citizenship and the Constitution? This was a Hot topic in this 2016 Election Year as well! Will it change now after the election?

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Born in the U.S.A.—Citizenship and the Constitution

The Supreme Court has never held that the children of illegal immigrants are entitled to automatic citizenship.

August 29, 2015

In your editorial http://www.wsj.com/articles/born-in-the-u-s-a [login to see]

(Aug. 21) you assert that the language of the Fourteenth Amendment is “straightforward.” It is indeed, but it doesn’t mean what you claim. The amendment sets out two requirements for automatic citizenship, not just one.

A person must be born in the U.S. and subject to its jurisdiction, according to the text. Those who drafted the language were quite explicit; the latter phrase meant subject to the “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”

As Sen. Jacob Howard explained at the time, the Citizenship Clause excludes not only Indians but “persons born in the U.S. who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

In other words, the phrase didn’t mean what they called “partial” or “territorial” jurisdiction such as applies to “sojourners” who are mere temporary visitors, and it certainly didn’t apply to those who were unlawfully present in the county.

This isn’t “circular restrictionist logic,” as you claim, but simply a reflection that “jurisdiction” has two different meanings. Visitors to the U.S., including illegal immigrants, are subject to our laws—our territorial jurisdiction—while present within our borders, but they are not thereby subject to the more complete political jurisdiction intended by the Fourteenth Amendment.

This was the understanding of the Supreme Court in 1873 and again in 1884. And it was not undermined by the Supreme Court’s 1898 holding in Wong Kim Ark, which recognized that a child born on U.S. soil to lawful, permanent residents was a citizen.

The Supreme Court has never held that the children of illegal immigrants are entitled to automatic citizenship, nor should it, as that would mean citizenship could be obtained not by mutual consent but by illegal conduct.

Prof. John C. Eastman
Fowler School of Law, Chapman University
Orange, Calif.