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Born in the U.S.A.: Does that guarantee citizenship?
There’s actually no mandate

By John C. Eastman
(Originally published in the Des Moines Register, September 16, 2007)

When immigration activist and sanctuary beneficiary Elvira Arellano was arrested in Los Angeles and deported back to Mexico last month, claims of unfairness were leveled because she was being separated from her son, a U.S. “citizen.” Similarly, Yaser Esam Hamdi, captured on the battlefield in Afghanistan and held in Guantanamo Bay, was transferred to Norfolk, Va., and treated as a citizen after it was discovered that he had been born in Baton Rouge, La., some 20 years earlier.

Most people in the country today take for granted the claims that Arellano’s son and Yaser Hamdi are citizens. Mere birth on U.S. soil, no matter the parental status, is alone sufficient, according to the received understanding of the Constitution. This is true, they believe, despite the fact that Arellano’s son was born while his mother was in this country illegally, and Hamdi was born while his parents were residing in the United States on a short-term work visa.

The Constitution does not actually mandate such a result.

To be sure, the Fourteenth Amendment guarantees citizenship to anyone “born or naturalized in the United States and subject to the jurisdiction thereof,” but for those who drafted and ratified the clause, “subject to the jurisdiction” meant much more than mere territorial jurisdiction. Being born in the United States while subject to the political jurisdiction - the “I-pledge-allegiance-and-can-be-prosecuted-for-treason” type of jurisdiction - was required.

As Senator Reverdy Johnson of Maryland noted during floor debate at the time the clause was proposed, the citizenship clause simply provides “that all persons born in the United States and not subject to some foreign power . . . shall be considered as citizens of the United States.”

The author of the provision, Senator Jacob Howard, maintained that the clause “will not, of course, include foreigners.”

Thirty years after the 14th Amendment was ratified, the Supreme Court expanded the constitutional mandate slightly, holding that the children of legal, permanent residents were automatically citizens, but the court has never held that the clause also confers automatic citizenship on the children of temporary visitors, much less on the children born to those who are in this country illegally.

We have simply backed into that understanding, without consideration of the actual meaning of the citizenship clause or concern about the consequences to other constitutional text and principles.

One such principle is the idea of government by consent. Birthright citizenship permits some to demand citizenship unilaterally, without the consent of the political community in which membership is claimed. It is therefore incompatible with a system of government based upon consent of the governed and, when utilized by those who enter this country illegally, the rule of law as well.

The lessons learned by the “unilateral citizen” children of illegal immigrants are, unfortunately, not the principles of the Declaration of Independence and the Constitution, but rather those of a culturally separate underclass whose illegal residence among us all but assures a deep suspicion, rather than embrace, of our governing institutions and principles.

And the lessons learned by others - legal immigrants who patiently wait for their turn at a new life in America, for example- is a lack of respect for the rule of law that will ultimately threaten our entire system unless we get serious about removing the inducements to illegal immigration, including birthright citizenship.

JOHN C. EASTMAN is dean and Donald P. Kennedy Chair in Law at Chapman University School of Law in Orange, Calif.