The Constitution doesn’t grant citizenship to the children of illegals

The first couple of Supreme Court cases to address the Citizenship Clause agreed with this interpretation.  In The Slaughter-House Cases, which were decided in 1872, the Court noted (albeit in dicta) that “[t]he phrase, ‘subject to the jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”  The Court was unanimous on this point.  That interpretation was also the Supreme Court’s holding in the 1884 case of Elk v. Wilkins, in which a Native American who had been born on a reservation within the United States and later renounced his tribal allegiance claimed the benefits of birthright citizenship because he was subject to the jurisdiction of the United States through his tribe, which was a dependent sovereign.  The Court rejected the claim, holding that the Citizenship Clause required that one 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.”  The great constitutional law treatise writer of the era, Thomas Cooley, summarized the position this way: “subject to the jurisdiction” of the United States “meant . . . full and complete jurisdiction to which citizens [are generally] subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

That’s the history, and it is not a “misreading” of it, as Chavez claims, to agree with the drafters of the Fourteenth Amendment, the Supreme Court’s decisions shortly after adoption of the Amendment, and the leading treatise writer of the day that the Citizenship Clause requires full and complete jurisdiction, not merely temporary or partial jurisdiction, before citizenship is automatically conferred as a birthright.

Chavez looks instead to the 1898 Supreme Court decision in United States v. Wong Kim Ark, decided thirty years after the Fourteenth Amendment was adopted.  Although the language in the opinion, mostly dicta, is rather broad, the actual holding of the case is not nearly as broad as Chavez portrays.  Wong Kim Ark was born on U.S. soil to the parents of lawful, permanent residents of the United States.  His parents had done everything they could to subject themselves to the complete jurisdiction of the United States, even though a rather racist law and equally despicable treaty would not let them become citizens here.  Given these circumstances, the Supreme Court held that Wong Kim Ark was a citizen.  Not reached by the Court, because not at issue, was whether a child born to someone here only temporarily, or even illegally, would also qualify for automatic citizenship.  More than a century later, that issue still remains unresolved by the Supreme Court.  But if the Court adheres to the original understanding of the Fourteenth Amendment when it eventually confronts the issue, we’ll find that the threshold for automatic citizenship is actually a bit higher than mere birth on U.S. soil.  While Congress retains the authority to offer citizenship more broadly, that is a policy judgment that our Constitution assigns to the Congress, not to the courts.

Dr. Eastman is the Donald P. Kennedy Chair in Law and former Dean at Chapman University School of Law in Orange, California.