A New Twist on Birthright Citizenship

One element of the illegal immigration debate that raises hackles is birthright citizenship, i.e. the idea that the 14th amendment to the constitution declares that children born on U.S. soil to parents of illegal aliens are ipso facto United States citizens.

Some legal experts, however, are claiming that the assumption that such children have what is called "birthright citizenship" is actually based on an erroneous reading of the 14th amendment.

Section 1 of that amendment states that:

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.

To the layman the intent of this passage certainly seems to be pretty straightforwardly declaring any children born on our soil to be citizens, but Law School Dr. John C. Eastman, Donald P. Kennedy Chair in Law and former Dean at Chapman University School of Law in Orange, California thinks not.

Eastman makes the case that the words "subject to the jurisdiction thereof" actually deny birthright citizenship, not just to children of illegals, but also to anyone in the country legally but temporarily:

That text has two requirements: 1) Birth on U.S. soil; and 2) Being subject to the jurisdiction of the United States when born. In recent decades, the opinion has taken root, quite erroneously, that anyone born in the United States (except the children of ambassadors) is necessarily subject to its jurisdiction because everyone has to comply with our laws while physically present within our borders. Those who drafted and ratified the Fourteenth Amendment had a different understanding of jurisdiction.

For them, a person could be subject to the jurisdiction of a sovereign nation in two very different ways: the one, partial and territorial; the other full and complete. Think of it this way. When a tourist from Great Britain visits the United States, he subjects himself to our “territorial jurisdiction.” He has to follow our laws while he is here, including our traffic laws that require him to drive on the right rather than the wrong (I mean left!) side of the road.

He is no longer subject to those laws when he returns home, of course, and he was never subject to the broader jurisdiction that requires from him allegiance to the United States. He can’t be drafted into our army, for example, or prosecuted for treason for taking up arms against us.

In the balance of his essay Eastman looks at the jurisprudential history of the relevant phrase and concludes that granting citizenship to children born in the U.S. to parents who are themselves not citizens is not warranted by that history.

It's an interesting, and surprising, development in the controversy over illegal immigration.