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

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.
You may have your own ideas of what “natural-born citizen” should mean. But that essay summarized the standards prescribed by the Constitution.
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.)
You can argue that an illegal immigrant who becomes otherwise law-abiding is in local allegiance.
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.