Rob Natelson | SOURCE: INDEPENDENCE INSTITUTE
This essay was first published in the Jan. 13, 2024 Epoch Times.
Part I, Part II, Part III, and Part IV of this series on how states may respond to illegal immigration summarized war powers retained by the states. Those installments explained how states can use those powers to check illegal entry at the Southern border.
This series is based on an academic study researched and written with Massachusetts legal scholar Andrew T. Hyman, and scheduled for publication in the British Journal of American Legal Studies (pdf).
This fifth and final essay recounts what we discovered about (1) the Constitution’s words “natural born Citizen” and (2) the claim that U.S.-born children of illegal immigrants are “birthright citizens.”
“Allegiance”
To determining the scope of state war powers, we had to explore a difficult legal term called “allegiance.” Most Americans encounter that word only when pledging the flag. However, “allegiance” is chock-full of legal meaning, and deeply rooted in Anglo-American and international law.
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 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 were not 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 do not have subjects. They have citizens. Whether you are 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 is an example of the difference: Suppose a Japanese wife and husband lawfully visit England as tourists. They are “alien friends” and in local allegiance to the British Crown. Thus, they are temporary British subjects.
Now suppose the couple decides to tour the U.S. If admitted legally, they are now our alien friends, and they owe local allegiance. But they are not citizens.
So there are is a difference between how “subject” and “citizen” connect with “allegiance.” Still, allegiance remains very important, and it affects the meaning of several portions of the Constitution. Two examples are Article II, Section 1, Clause 5, which requires the President to be a “natural born Citizen,” and the part of Section 1 of the 14th amendment called the Citizenship Clause.
Natural Born Citizen
I discussed the concept of natural born citizen in an Epoch Times essay last year. I explained that being a natural born citizen requires more than merely being a citizen. The additional requirements depend largely on the allegiance of one’s father.
You may have your own ideas of what “natural born citizen” should mean. But that essay summarized the standards prescribed by the Constitution.
One of the rules is that a person born in U.S. territory whose father is rightfully in this country is natural born. If our Japanese tourist couple have a baby here, the child is a natural born American. For the other rules, see last year’s essay.
Birthright Citizen
Birthright citizenship is the idea that children born in the U.S. of foreign parents are natural born American citizens. The child born in America to the Japanese tourist couple is a birthright citizen.
But our Japanese tourist couple was in the country legally. Does birthright citizenship apply to the children of foreigners in the country illegally? Many people assume the answer is “yes.” That’s why some foreign women sneak across the border while pregnant to give birth on U.S. territory. They think their child will automatically be an American citizen. Agents of the U.S. government often operate on the same assumption. I recently did a search with the “Brave” internet browser, and my search produced the flat statement that the assumption is true.
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 cannot be invaders. They cannot 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.)
The Supreme Court has confirmed what history tells us. In 1884, the court stated that “subject to the jurisdiction thereof” means “in allegiance to the U.S.” (pdf). In 1898, it ruled that children born of foreigners lawfully in this country (and therefore in local allegiance) are American citizens (pdf).
What About the Children of Illegal Immigrants?
Whether a child born in the U.S. of illegal immigrants is an American citizen hinges on whether the child’s parents are then in allegiance to the United States. If the father is not in allegiance, then the child is not an American citizen.
Your gut might tell you that illegal immigrants are invaders who have disregarded American law, so they can’t be in allegiance to the United States. But the answer is not that simple. Although much of what is going on at the Southern border does qualify as “invasion,” many people enter the country in other ways and not as invaders. (They may overstay a visa, for example.) In most cases, after that single violation, they become law-abiding.
You can argue that an illegal immigrant who becomes otherwise law-abiding is in local allegiance.
In 2015, I wrote an essay saying that whether the U.S.-born children of illegal immigrants are American citizens is a difficult question. The Supreme Court has never addressed it, and I confessed I did not know the answer.
Although the Supreme Court still has not 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 does not produce an American citizen. She produces another illegal alien.