Timothy Lee writes that abandoning the idea of birthright citizenship is “ a sacrifice of the actual freedom and equality of actual human beings who will be born on American soil over the coming decade,” and Will Wilkinson says “birthright citizenship is codified in the 14th Amendment to the Constitution.” I don’t think either of these is clearly correct.
Start with the text: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...” Does this mean that all persons born in the United States are citizens? No. It means all persons born in the United States and subject to the jurisdiction thereof are citizens. It would be improper to read this Amendment and leave out that phrase. What, then, does “subject to the jurisdiction thereof” mean?
Although there’s no Supreme Court decision on the issue of whether children of persons here illegally are automatically citizens, there are Supreme Court decisions on whether children of Indians or of foreigners legally resident are automatically American citizens, even though born within the territory of the United States. And the answer is not necessarily yes.
In Elk v. Wilkins, 112 U.S. 94, 102-103 (1884), the Court ruled that “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” See also The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 73 (1873) (“The phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States.”).
Since children of Indian tribes are not automatically citizens, Congress had to exercise its power under the naturalization clause—which gives Congress power “to establish an uniform Rule of Naturalization”—to make Indians citizens by statute. This, in turn, means Congress has the authority to determine who is and is not subject to the jurisdiction of the United States within the meaning of the Fourteenth Amendment.
That interpretation is consistent with understandings of the jurisdiction clause at the time. When the Amendment’s proponents were asked whether it would make Indians citizens, they answered no: “This will not, of course, include persons born in the United States who are foreigners,” said Jacob Howard. “Indians born within the limits of the United States, and who maintain their tribal relations are not, in the sense of that amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.” Senator Lyman Trumbull echoed this understanding: “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anyone else. That is what it means... Are [Indians] in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them....” Another Senator repeated: “all that this amendment provides is, that all persons born in the United States and not subject to some foreign power...shall be considered as citizens.... I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”
In one sense, of course, anyone within the United States is “subject to its jurisdiction”—meaning, must obey American laws. But that cannot be the meaning of the Fourteenth Amendment’s clause, because that would again render it redundant of the previous clause. It must mean something distinctive—it must mean that there are some people born or naturalized in the United States who are not automatically made citizens. Or, to put it another way, the word “jurisdiction” must mean citizenship jurisdiction—in other words, jurisdiction in the sense of allegiance or membership. But children born of, say, vacationing tourists, are not members of the nation where they’re born. They’re members of the nation their parents are members of, unless and until they choose to renounce their citizenship and become citizens of some other country. (That’s why the oath of naturalization specifically requires a person to renounce fidelity to foreign jurisdiction.)
In 1898, the Supreme Court decided United States v. Wong Kim Ark, 169 U.S. 649 (1898), holding that the child of Chinese parents, non-U.S. citizens who legally residing in the U.S., was automatically made an American citizen. The Court reconciled its decision with the Elk case by holding that the terms “subject to the jurisdiction thereof” were meant “to exclude...besides children of members of the Indian tribes, standing in a peculiar relation to the national government...the two classes of cases—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state—both of which...by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth.” That is, that the phrase was intended only to codify two minor exceptions to the common law principle of birthright citizenship.
There are a couple problems with this, however. For one thing, it doesn’t get past the redundancy problem. If Wong Kim Ark is correct, then there’s really no role for the jurisdiction clause to play, since it holds that birthright citizenship was a common law principle, and therefore the first words of the Amendment would have incorporated not only the common law rule of citizenship, but also the exceptions thereto. Secondly, there doesn’t appear to be any discussion of these exceptions in the Congressional Record debates on the jurisdiction clause, all of which were focused on the relationship between the U.S. and children whose parents owed allegiance to a quasi-foreign government. Third, as the dissenters in Wong Kim Ark argued, the common law principle of birthright citizenship is rooted in a feudal conception of allegiance which is contrary to fundamental American constitutional principles.
But even if Wong Kim Ark was rightly decided, it does not cover children of persons who are here illegally. There, the Court explicitly contemplated persons whose residency in the United States was consistent with American immigration and naturalization laws. It relied heavily on a John Marhsall decision called The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (1812), which held that foreign ambassadors were not “within the jurisdiction” of the United States, because the United States sovereignty chose to exclude them from the temporary jurisdiction and allegiance which non-ambassadors owe to the country in which they’re residing. In other words, most foreigners legally present “owe temporary and local allegiance” to the United States, because “ it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation” if they did not. Diplomatic visitors were an exception, because “a consent to receive him implies a consent that he shall possess those privileges which his principal intended he should retain,—privileges which are essential to the dignity of his sovereign.” This is reasonable—and it’s inconsistent with the idea that children of illegal immigrants are citizens. A person here in violation of the laws owes temporary allegiance—and has already violated that allegiance. The U.S. sovereign has not consented to receive him, and the “inconvenien[ce] and danger to society” of requiring this sovereign to admit his children as citizens is obvious. On the contrary, the U.S. has chosen to exclude them by enacting the immigration laws he violated.
Now, Wong Kim Ark is a long, very thoughtful opinion, and I’m not entirely convinced it’s wrong. It relies, for instance, on certain American naturalization and immigration laws enacted prior to the Fourteenth Amendment that strongly support its interpretation of the jurisdiction clause. But I do agree with the Wong Kim Ark dissenters that the concept of birthright citizenship is a feudal notion inconsistent with republican institutions, and I see no reason to believe—and good reason to doubt—that the Fourteenth Amendment’s authors intended to extend citizenship to the children of illegally present foreigners, especially given the care they took to exclude Indians legally present.
Update: Edward Erler has written some very interesting things on these issues.