The Children of Illegal Immigrants Are Not Born American Citizens

By Tim Dunkin

Once again, Donald Trump has managed to open up a robust national discussion about an issue that up to this point had been largely ignored by the political class. This time, the discussion is about so-called “birthright citizenship,” the idea that whenever a foreign national (regardless of legal status and with a very few exceptions) has a child on American soil, this child automatically becomes an American citizen from birth. This approach to citizenship has been the de facto(though not de jure) approach to the issue of “anchor babies,” the children of illegal aliens who come to the United States so that they can have their children here, thus allowing the parents to remain as well, usually helping themselves to generous American benefit monies.

Defenders of unrestricted birthright citizenship – primarily found among liberals, establishment GOP types, and the more uninformed types of libertarians—adamantly argue from the 14thamendment’s Citizenship Clause that birthright citizenship is not only legal, but is in fact constitutionally protected, and is what the 14thamendment has meant all along. They often try to buttress their arguments by appealing to English common law with its historical provisions for birthright citizenship. However, is this sort of “swim a river, fill our quiver” approach really what the 14th amendment meant? Is it really what English common law, which forms the basis for much of our own law and constitutional interpretation, historically upheld? The answer to these questions is, “No.”

The crux about which the discussion revolves is the Citizenship Clause found in the 14th amendment, Section 1,

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.”

More specifically, what is at issue is the phrase, “and subject to the jurisdiction thereof.” Clearly, the clause was not intended to convey American citizenship to an unlimited pool of children born to aliens on American soil. If this had been the case, then the phrase under discussion would not have been included. Obviously, some limits were intended, those circumscribed by the intent of being “subject to the jurisdiction thereof.”

So what were these limits? Typically, it will be pointed out that the limits due to this jurisdictional issue were that citizenship was not being conveyed to children born of ambassadors and others aliens employed by their foreign governments, nor was it being conveyed to members of various Indian tribes which exercised sovereign powers within their own territories (this latter was rescinded by an act of 1924 which granted Indian tribes full American citizenship). Were these the only restrictions on birthright citizenship intended by the author and debaters of the 14th amendment?

No, actually. Let’s understand what the original intention of the 14th amendment was, which was to grant American citizenship to former black slaves and their children, and to prevent these newly freed citizens from being denied citizenship rights by certain of the southern states. That’s it. This was made clear by Sen. Jacob Howard, who authored the amendment in 1866, who clearly provided the intent for this section of the amendment,

Every person born within the limits of the United States, and subject to their jurisdiction, is, by virtue of natural law and national law, a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great issue in the jurisprudence and legislation of this country.”

Clearly, other classes of foreign citizens were intended besides the children of ambassadors and other diplomatic personnel. Indeed, Howard’s statement appears to be quite all-encompassing—if taken at face value, it would appear that he did not even intend the 14th amendment to grant citizenship to the children of foreign nationals here legally, much less to those here illegally. Sen. Lyman Trumbull when asked about the meaning of “jurisdiction thereof” during the debate surrounding this amendment in Congress, stated that it,

…means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.”

Sen. Howard agreed with this interpretation, stating,

I concur entirely with the honorable Senator from Illinois, in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States…that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”

What this essentially means is that the citizenship clause, as intended by the authors and supporters at the time the 14th amendment was produced, was meant to apply to the children of those who were already citizens of the United States. It did not apply to those who were only under the general and incomplete jurisdiction of being foreigners who merely happened to currently be on American soil.

Therefore, the ONLY credible interpretation of the 14th amendment’s Citizenship Clause is the one that has been related above. The original intent of the amendment is quite clear. Commentators today are not (or should not be) free to simply invest the amendment with their own preferred sense just because they wish for birthright citizenship to extend to the children of illegal aliens.

United States v. Wong Kim Ark

However, to get around the arguments above, some commenters will appeal to the case of United States v. Wong Kim Ark, which was decided by the Supreme Court in 1898. This case involved the child of two Chinese parents who were citizens of China and subject to the Chinese Emperor, the child (Mr. Wong) having been born in the United States. Mr. Wong claimed United States citizenship but was denied it by lower courts, but took the case all the way to the Supreme Court, which reversed the lower court decisions and found in his favor.

On its face, this case has little actual relevance to the issue of “anchor babies” born to illegal aliens on American soil. Mr. Wong’s parents were legal residents of the United States, not being in contravention to any naturalization law in effect at the time of his birth. As such, they would have submitted themselves to the jurisdiction of American immigration laws, and therefore existed under the jurisdiction of the United States and its laws, not just in a general sense, but in a specific and volitional sense as well. At most, the case of Wong Kim Ark merely affirmed that the children of legalresident aliens became American citizens by birth—going beyond what the 14th amendment actually says, but still not extending birthright citizenship to those whose parents were here in violation of American immigration laws—something which was not even put to the test in that case.

Now here is where the arguments from English common law begin. In his majority opinion, Justice Horace Gray made several extended appeals to English common law to support and sustain his version of birthright citizenship. In his opinion, he cited several earlier court cases in American jurisprudence, but placed the most weight of all upon the opinion and declaration of Sir Edward Coke, an English jurist whose ruling in 1608 on what is commonly called Calvin’s Case established the principle of jus soli (law of the soil) and birthright citizenship, and had a huge impact on the later American common law jurisprudence cited by Gray. Gray referred to Coke’s ruling and observed,

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’ of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual ’ as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem – and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”

Calvin’s Case and Common Law

Now, a word about the actual circumstances in Calvin’s Case. The case involved the inheritance of lands in England by a Scots lad named James Colville born in 1606, three years after the union of the English and Scots crowns in the person of James I/VI. It had been argued that as a citizen of Scotland, Colville could not legally own, and therefore inherit, English lands. Coke and the majority of jurists on the panel convened to hear the case decided in Colville’s favor on the grounds that having been born after the union of the monarchy, Colville was rightfully considered a subject of the English king as much as he was of the Scots king (who were, of course, the same person). This was true, even though Colville’s parents were to be considered, along with all other Scots born prior to 1603, as aliens with respect to England, since they were not subjects of the English king at the time of their births.

Now, it should be readily apparent to the reader that the circumstances in Calvin’s Case and the circumstances surrounding illegal immigrants entering into America for the purpose of having their children here are very different, and it is not altogether apparent that Coke’s decision in that case, and therefore any subsequent cases using Coke’s decision as a precedent (such as Wong Kim Ark), should have any direct bearing on our situation today. In the case with Colville, you had a child who became a citizen of the realm of England not because his parents travelled to England, but because England, in a sense, came to Scotland. Further, it cannot be said that Colville’s parents had hitherto fore been aliens who did not owe loyalty and obedience to the person of the King—they did when he was still only the King of Scotland. And it is important to note that another legal principle which Coke’s decision established was that obedience and fealty were due to the sovereignty of the king himself (transferred, in our system, to the people of the United States) and not to a geographical expression—obedience and fealty which Colville’s parents still had toward James VI of Scotland.

In essence, jus soli does not involve common law birthright citizenship on the basis of geographical location, but on the basis of subjection, obedience, and loyalty to the sovereign power that rules over that geographical location. One became a common law citizen upon birth in England not because one’s parents were domiciled in England, but because one’s parents were subject to the English king while in England. Per Coke’s arguments, this could not apply to either the children of ambassadors or others in the business of a foreign sovereign, nor to those children born on English soil but under circumstances which set the parents against the sovereignty of the king of England in some way (such as, for example, the territory was occupied by foreign soldiers, one of whom then fathered a child by a camp follower).

It is this principle of loyalty and obedience to the sovereign power which ultimately destroys any arguments in favor of the children of illegal aliens being natural born citizens upon birth within the geographical boundaries of the United States. If you will note from the citation from Justice Gray’s opinion above, a key provision that enabled a child born of aliens on English soil to receive birthright citizenship was that the parents were “aliens in amity.” What this meant was that they were subject as foreigners to the laws (and therefore sovereignty) of the English king. To be a foreigner and to be perpetually disobedient to the laws of the king meant that one was not an “alien in amity.”

This principle also seems to be implied in Blackstone’s Commentary where he actually seems to affirm that there is no right of citizens to emigrate at all. He observes,

Natural allegiance is, therefore, a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot, by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due…”

Obviously, we would disagree today with his argument which essentially seems to forbid the emigration of citizens from one nation to another without the agreement of both sovereign powers. However, within Blackstone’s argument (from natural law, and citing “universal law”) we can see that, again, allegiance is owed to the sovereign power, not to any place or accident of geographical location.

Coke made a clear distinction between aliens to whom he referred as amicus (a friend) and those who were inimicus (an enemy). An alien was only a “friend” if there was a “league” between the king of England and the sovereign of the foreign power from which the alien came. If this alien was a “friend,” then he or she could enter England without a license—they were free to enter, live in, and conduct business upon the implied permission of the King of England. Conversely, if an alien was an “enemy” (which does not necessarily imply active hostilities between England and the alien’s home nation), then they did not have a license to enter England, live, or conduct business. They did NOT have this implied permission from the king, they were not “aliens in amity.” As such, their children would NOT receive birthright citizenship because they were violators of the sovereignty of the king, rather than being subject to and in obedience to him.

This is affirmed by the language used by George Hansard, the great English 19th century jurist, in hisTreatise on the Law Relating to Aliens, and Denization, and Naturalization. Citing Coke, Hansard notes that one of the three stipulations that a child of aliens needed to meet to be considered natural born by English common law was that “his parents must be under the actual obedience of the king…” In other words, it was not enough for them to occupy a place in the realm and not be under the employ of a foreign sovereign, but they also needed to be living in obedience to the king of England, obeying his laws and honoring his sovereignty.

This applies to the American situation as follows. In our nation, the sovereignty does not reside in a king, but is held by the people themselves, and is expressed through the legislative power that the Constitution (which was established by the people through their respective states) grants in its first Article. Congress—the legislature of the people—is clearly granted the express power “to establish a uniform rule of naturalization…” and also possesses the implied powers to make and direct the enforcement of such laws relating to this area. In essence, Congress can pass laws that relate to who can and cannot enter the United States, how they may or may not retain and exercise residence (because of the common law powers relating to denizenry that are implied by the term “naturalization”), and how they can become citizens of the United States.

By violating our immigration laws, illegal immigrants are explicitly violating and subverting the sovereignty of the people of the United States, expressed through our legislature, and are therefore not amicus, but are inimicus to our sovereign power. As such, their children, even if born on our soil, cannot be said in any way, shape, or form to be born “within the allegiance” of the sovereignty of the people of the United States. The precedents of English common law with respect to birthright citizenship for the children of aliens in amity do not apply to them. The essential elements of common law birthright citizenship are not present for the children of illegal aliens born on American soil. It is simply not reasonable to say that an illegal alien has a “duty of allegiance,” including full obedience, to the United States because it is impossible for that allegiance to ever be fulfilled. By definition, a person cannot at the same time be an illegal alien and yet be obedient to the laws and sovereignty of the people of the United States.

This isn’t just my opinion, either. In fact, in Justice Gray’s own opinion in the Wong Kim Ark case, after having referenced Coke’s “alien in amity” terminology, he explicitly said,

Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign.”

In this light, we then see Gray state,

Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are “subject to the jurisdiction thereof” in the same sense as all other aliens residing in the United States.”

Right here, Justice Gray destroys any foundation which those seeking to use his majority opinion to support birthright citizenship for the children of illegal aliens might base their arguments upon. The 14th amendment’s language “subject to the jurisdiction thereof” is clearly interpreted to apply ONLY to those aliens who are “permitted to reside here,” in other words, who are following our immigration and naturalization laws.

So it ought to be obvious to anyone who thoughtfully considers this issue that birthright citizenship under English common law and its derivative use in constitutional interpretation still does not grant natural born citizenship to the children of illegal aliens. Frankly, this accords with plain common sense, which is more often than not the basis of our English common law system. It simply makes sense that if foreign nationals ignore our laws and disrespect our sovereignty, their children, even though born here, don’t get to automatically become citizens of our polity.

Indeed, if children of “unlicensed” aliens automatically becoming citizens of the realm in which they were born geographically is such an embedded feature of English common law, then why is it that practically no civilized nation that uses common law as the basis of its legal system, either whole or in part, has this feature in their approach to immigration, aside from the United States and Canada? Even the United Kingdom itself doesn’t feature the sort of open-ended birthright citizenship based onjus soli that advocates for illegal immigration in the United States rely upon, having realized what a bad idea it was to apply common law in such a fashion.

Indeed, we can produce a further argument against birthright citizenship for the children of illegal aliens by appealing to one of the foundations of modern liberty ideology—John Locke. In his secondTreatise on Government, Locke observed that commonwealths—what we would today call “polities” or “governments”—were formed when people voluntarily banded together for their common defense and support. In doing so, each gave up a portion of his inherent personal liberty, but gained the benefits that come with social interaction and working together for the common good. One of the features of these commonwealths, however, was that once formed, they had the right to choose who could further be added to the polity. Someone may wish to join, but the body of the commonwealth, in whatever way it has organized itself, could choose whether to admit them or not. This, in accord with Locke’s philosophy of liberty which underlies so much of our system of English liberties and law, is exactly what we’re talking about here when we say that the United States (as well as all other nations) are free to establish their own immigration and naturalization laws. A system, and the people within it, cannot be said to be “free” when they cannot choose who to admit and who to keep out—if they cannot, then they are in reality in subjection to and have lost liberty to those forcing themselves into the polity. An individual or a group of individuals simply has no right, under the liberty philosophy Locke envisioned, to force themselves into citizenship in another polity, and it follows simply from common sense that they cannot force their children into that polity as well. Far from birthright citizenship for the children of illegal immigrants being “freedom,” it actually represents the oppression of that polity which is being forced against its will to accept new members who have not and do not abide by the laws and customs of that polity.

As such, it ought to be apparent from all that has been said above that there simply is no constitutional right to natural born citizenship for the children of illegal aliens in the United States. As such, making the much-needed reforms in our immigrations laws so as to explicitly close this loophole can in no way be called “unconstitutional.” All that is needed is for Congress to act to pass the necessary statutory law to clarify this area and close the hole. No constitutional amendment is needed, for the current interpretation of the Citizenship Clause is just that—an interpretation.  Further, it is an interpretation that does not actually rest on common law, as we have seen above, but is actually a relatively new innovation in US constitutional law, first finding expression in a footnote to Justice Brennan’s opinion in the 1982 case of Plyler v. Doe. In this footnote (which qualifies as obiter dicta, a statement that does not actually carry any weight as precedent), Brennan stated,

As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Eliminate birthright citizenship for the children of illegal immigrants

Even though Brennan refers to the case of Wong Kim Ark, the conclusions he arrives at are clearly at odds with those presented both in the body of historical common law as well as the specific reasoning by Justice Gray in that case. Brennan’s opinion actually represents a departure from, rather than an affirmation of, common law reasoning on this issue, despite the insistence of supporters of unrestricted birthright citizenship that they are resting on the long history of our English common law heritage.  It is not surprising, then, that in making his assertion, Brennan referred to no actual case law or history, but only to statements appearing in a treatise on immigration law from 1912 (which also cited no case law or historical precedence) by C.L. Bouvé, an American attorney. From this single, barely substantiated doctrine, Brennan, writing for a bare majority of the Burger Court, invented a revised definition of birthright citizenship for the United States that was not really supported in our laws previously.

As such, it is past time for the American people, through their duly established legislature, to formally eliminate birthright citizenship for the children of illegal immigrants. This perversion of the principle of birthright citizenship is not in accord with either common sense, common law, or our Constitution.

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