Indians and Invaders: The Citizenship Clause and Illegal Aliens

Abstract

This Essay examines whether children born here to illegal immigrants are citizens of the United States. Though longstanding practice supports citizenship under these circumstances, critics like Peter Schuck, Rogers Smith, and Richard Posner argue that the subject to the jurisdiction language in the Fourteenth Amendment can be construed to exclude these children. For the most part, this claim draws on the debates surrounding the exclusion of the Native American Tribes from birthright citizenship, which was the primary object of subject to the jurisdiction language. In reviewing (and rejecting) this revisionist argument, the Essay makes two significant points. First, the Framers of the Fourteenth Amendment excluded the Tribes from equal citizenship because that was inconsistent with the autonomy they were promised in Worcester v. Georgia. Consequently, the Citizenship Clause in this respect was a necessary evil that should not be extended by construction to cover illegal immigrants. Second, the appropriate analogy for this problem is not the Tribes, but the traditional common-law exception from birthright citizenship for enemy aliens in hostile occupation. The operative question for establishing jurisdiction in a constitutional sense when foreign invaders are involved is whether we can exercise a minimal level of enforcement of its authority. With respect to illegal immigrants and their kids, the answer is yes.