Understanding the Constitution: How States May Respond to Illegal Immigration, Part V: About Birthright Citizenship

Illegal immigrants who passed through a gap in the U.S. border wall await processing by Border Patrol agents in Jacumba, Calif., on Dec. 7, 2023. John Fredricks/The Epoch Times

Commentary

Part I, Part II, Part III, and Part IV of this series on how states may respond to illegal immigration summarized war powers retained by the states. Those installments explained how states can use those powers to check illegal entry at the southern border.

This series is based on an academic study researched and written with Massachusetts legal scholar Andrew T. Hyman and scheduled for publication in the British Journal of American Legal Studies.

This fifth and final essay recounts what we discovered about (1) the Constitution’s words “natural born Citizen” and (2) the claim that U.S.-born children of illegal immigrants are “birthright citizens.”

‘Allegiance’

To determine the scope of state war powers, we had to explore a difficult legal term called “allegiance.” Most Americans encounter that word only when pledging to the flag. However, “allegiance” is chock-full of legal meaning and deeply rooted in Anglo-American and international law.

Under a monarchy, the king and his subjects have reciprocal obligations. The king must defend, and the subject must obey. The subject’s obligation is called “allegiance.”

Before America declared Independence in 1776, the colonists were subjects of the British Crown and owed allegiance to the king. A colonist might be a subject because he or she was born within the British Empire. Or the colonist might have been foreign-born but naturalized as a subject.

Even non-naturalized foreigners could be British subjects. If a foreigner was living or visiting legally in the British Empire (including the North American colonies), he owed “local allegiance” to the Crown for the duration of his stay. This meant that the foreigner had a duty to obey local law while within the empire, even if his primary allegiance was to his homeland.

A foreigner from a friendly country legally staying in the British Empire and subject to local allegiance was called an “alien friend.”

But if you entered the empire illegally, or your nation was at war with Great Britain, then you were an “alien enemy.” Unless you received special permission to stay, you weren’t in allegiance to the British Crown. You could forfeit your property and be forced to leave the country.

In 1776, the original 14 states (the 13 new “united states” plus Vermont) became independent republics. When the Constitution was ratified, it created a federal republic. But all the states adopted the Anglo-American legal system, including the concept of allegiance.

In a monarchy, every subject owes allegiance, and everyone who owes allegiance is a subject. However, republics don’t have subjects. They have citizens. Whether you’re a citizen of a republic depends on the laws of the republic.

Every citizen owes allegiance to his republic, but not everyone in allegiance is a citizen. Here’s an example of the difference: Suppose a Japanese wife and husband lawfully visit England as tourists. They’re “alien friends” and in local allegiance to the British Crown. Thus, they’re temporary British subjects.

Now suppose the couple decides to tour the United States. If admitted legally, they’re now our alien friends, and they owe local allegiance. But they aren’t citizens.

So there’s a difference between how “subject” and “citizen” connect with “allegiance.” Still, allegiance remains very important, and it affects the meaning of several portions of the Constitution. Two examples are Article II, Section 1, Clause 5, which requires the president to be a “natural born Citizen,” and the part of Section 1 of the 14th Amendment called the Citizenship Clause.

Natural Born Citizen

I discussed the concept of natural-born citizens in an Epoch Times essay last year. I explained that being a natural-born citizen requires more than merely being a citizen. The additional requirements depend largely on the allegiance of one’s father.

You may have your own ideas of what “natural-born citizen” should mean. But that essay summarized the standards prescribed by the Constitution.

One of the rules is that a person born in U.S. territory whose father is rightfully in this country is natural born. If our Japanese tourist couple has a baby here, the child is a natural-born American. For the other rules, see last year’s essay.

Birthright Citizen

Birthright citizenship is the idea that children born in the United States of foreign parents are natural-born American citizens. The child born in America to the Japanese tourist couple is a birthright citizen.

But our Japanese tourist couple was in the country legally. Does birthright citizenship apply to the children of foreigners in the country illegally? Many people assume the answer is “yes.” That’s why some foreign women sneak across the border while pregnant to give birth in U.S. territory. They think their child will automatically be an American citizen. Agents of the U.S. government often operate on the same assumption. I recently did a search with the “Brave” internet browser, and my search produced the flat statement that the assumption is true.

But is it really true?

The Citizenship Clause of the 14th Amendment reads as follows:

“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.”

This doesn’t say merely “born ... in the United States.” It adds “subject to the jurisdiction” of the United States.

What does “subject to the jurisdiction” mean? In other parts of the Constitution, the word “jurisdiction” means “within territorial boundaries.” But that can’t be the meaning here, because otherwise the phrase “subject to the jurisdiction of” would be redundant.

The history of the 14th Amendment tells us what “subject to the jurisdiction” of the United States means. It means that for a child to have birthright citizenship, his parents must be in allegiance to the United States. His parents can’t be invaders. They can’t be foreign diplomats. And in 1868, when the 14th Amendment was adopted, the child’s parents couldn’t be tribal Indians. (That was changed in 1924 by the federal Indian Citizenship Act.)

The Supreme Court has confirmed what history tells us. In 1884, the court stated that “subject to the jurisdiction thereof” means “in allegiance to the U.S.” In 1898, it ruled that children born of foreigners lawfully in this country (and therefore in local allegiance) are American citizens.

What About the Children of Illegal Immigrants?

Whether a child born in the United States of illegal immigrants is an American citizen hinges on whether the child’s parents are then in allegiance to the United States. If the father isn’t in allegiance, then the child isn’t an American citizen.

Your gut might tell you that illegal immigrants are invaders who have disregarded American law, so they can’t be in allegiance to the United States. But the answer isn’t that simple. Although much of what’s going on at the Southern border does qualify as “invasion,” many people enter the country in other ways and not as invaders. (They may overstay a visa, for example.) In most cases, after that single violation, they become law-abiding.

You can argue that an illegal immigrant who becomes otherwise law-abiding is in local allegiance.

In 2015, I wrote an essay saying that whether the U.S.-born children of illegal immigrants are American citizens is a difficult question. The Supreme Court has never addressed it, and I confessed I didn’t know the answer.

Although the Supreme Court still hasn’t ruled on the question, our research on state war powers and on allegiance clearly points to an answer: A person entering a country without permission is technically an “alien enemy” and not in allegiance to the United States.

Thus, a woman who enters this country illegally to bear a child doesn’t produce an American citizen. She produces another illegal alien.

Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). This series is based on his forthcoming research article co-authored with Andrew T. Hyman: “The Constitution, Invasion, Immigration, and the War Powers of States.” It will appear early this year in Volume 13, Issue 1, of the British Journal of American Legal Studies.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.