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Birthright citizenship for children of illegal aliens should not be a difficult issue. As I wrote earlier and George Will quoted in one of his columns, “It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into the country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry.”

How could so obviously irrational a policy come to be and be allowed to continue? The answer, its defenders argue, is the Constitution; the Fourteenth Amendment requires it, so we are stuck with it good or bad unless changed by a constitutional amendment. It does no honor to the Constitution, however, to assume that it requires an irrational policy. As Justice Robert Jackson famously pointed out in response to such an argument, the Constitution is not a “suicide pact.” That birthright citizenship is a senseless and harmful policy is clearly shown by the fact that no other country has adopted it, even for the children of legal residents.

The Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” Not all persons born here, therefore, are automatically citizens, but only those “subject to the jurisdiction” of the United States.

The most reasonable reading of the clause is that it must mean more than merely subject to the laws of the United States, and the legislative history of the clause supports that reading. The clause earlier took the form “not subject to any foreign power,” which seems to explicitly exclude children born here of even legal resident aliens. The present wording “and subject to the jurisdiction thereof” was substituted, but with no indication of an intended change in meaning. The two principal authors of the citizenship provision were Senators Lyman Trumbull of Illinois and Jacob Howard of Ohio. Senator Trumbull stated that “[s]ubject to the jurisdiction of the United States” means subject to its “complete” jurisdiction, not just to its laws, but “[n]ot owing allegiance to anybody else.” Senator Howard agreed that “jurisdiction” meant a full and complete jurisdiction, “in extent and quality as applies to every citizen of the United States now.”

This understanding of the exceptions clause as excluding birthright citizenship for the children of even legal resident aliens was the interpretation first adopted by the Supreme Court. In the Slaughter-House Cases in 1873, the Court’s first encounter with the Fourteenth Amendment, the Court said that “[t]he phrase ‘subject to the jurisdiction thereof’ was intended to exclude from [birthright citizenship] children of ministers, consuls, and citizens or subjects of foreign States, born within the United States.” (Emphasis added.) In Elk v. Wilkins in 1884, the Court held that a child born to members of an Indian tribe did not have birthright citizenship, because though he was born in the United States, he was not born “subject to the jurisdiction thereof” because—adopting the view of Senators Turnbull and Howard—he must be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance … no one can become a citizen of a nation without its consent.” There can hardly be a clearer indication of lack of consent to a person’s being a citizen than making the presence of the person in the country illegal.

Four years later, however, in United States v Wong Kim Ark, a divided Court, suddenly taking a different view of citizenship as based on place of birth rather than allegiance, granted birthright citizenship to a child born here of legal resident aliens. The dissenters persuasively argued that the Court’s change of its position on citizenship, based on the feudal view of the position of subjects in a monarchy, was inconsistent with our democratic political system. The case did not, in any event, involve the children of illegal aliens. The Court’s statement in a footnote in a later case that Wong Kim Ark applies to children of illegal as well as legal aliens is of little effect because it was a dictum based on a misreading of the case.

The assumption of the Immigration and Naturalization Service that the children of illegal aliens are constitutionally granted birthright citizenship is therefore clearly subject to challenge, and it is increasingly being challenged. As a Yale law professor and a political science professor concluded in a recent important book, “[the] framers of the Citizenship Clause had no intention of establishing a universal rule of birthright citizenship” and Congress should be permitted to reject it. Then Court of Appeals Judge Richard Posner agreed in a concurring opinion that “the situation we have today” as to birthright citizenship “is absurd” and the Congress should “put an end to the nonsense.”

Lino A. Graglia is the A. W. Walker Centennial Chair in Law, University of Texas School of Law, Austin, Texas.

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