Let’s put aside the American-born children of non-citizen members of Indian tribes, for they were granted citizenship by an act of Congress in 1924. And that, as we’ve seen, was only after Elk v. Wilkins, in which the Supreme Court reasoned that the 14th Amendment did not make them U.S. citizens because they were not “subject to the jurisdiction” of the United States in the sense of “complete,” “direct and immediate allegiance.”
To the contrary, these categories are not exceptions to an otherwise obvious claim to birthright citizenship. They are the patent operation of venerable rules: The citizenship of the child derives from the citizenship of the parent; and American citizenship hinges on the parents’ being subject to the jurisdiction of the United States, in the sense of lawfully aspiring to citizenship, demonstrating loyalty to the United States and our Constitution, and obeying the laws.
Why is that? Because such matters were understood to be state responsibilities. The Constitution prescribes a federalist arrangement in which the states retain sovereignty. The states had control over their internal affairs. From the founding through most of the 19th century, that was understood to include deciding which non-Americans would be permitted in their territories.
Rarely noticed in our era of the Beltway Behemoth is how sparse the Constitution is on the matter of central-government power over aliens. The naturalization clause is the beginning and the end of it. Congress was given the power to prescribe what aliens needed to do to become Americans. But there is not a word in the Constitution about law enforcement, nothing about which aliens would be allowed into the country, or on what conditions they would be permitted to stay.
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. Patently, this had nothing to do with illegal aliens or their children. To repeat: There was no federal concept of “illegal alien” at the time. There would, moreover, have been no reason to amend the Constitution for the purpose of dictating the status of the children of aliens. Congress had that covered: Its Article I power to prescribe terms of citizenship for aliens had never been in dispute; as noted at the start of this essay, Congress had been exercising that power since shortly after the Constitution went into effect.
As Professor Graglia elaborates, the principal authors of the Civil Rights Act of 1866 and the 14th Amendment — Senators Lyman Trumbull of Illinois and Jacob Howard of Ohio — elucidated the meaning of jurisdiction in those provisions. The point was to stress “complete” jurisdiction, as in “not owing allegiance to anybody else.”
Why? Because Congress’s objective was to deal with a unique historical problem — the status of black people who had been in America for generations, bore allegiance to its sovereign power and the burdens of its laws, but were being denied citizenship and its attributes. This, indeed, was exactly how the Supreme Court saw the matter 18 years later when, in Elk v. Wilkins (1884), it denied birthright citizenship to the American-born adult child of members of an Indian tribe — observing that the point of the 14th Amendment was to settle the question of citizenship for black former slaves, and adopting the reasoning of Trumbull and Howard that 14th Amendment “jurisdiction” meant complete jurisdiction. The amendment was designed to bring blacks formally into the American fold without purporting to affect the status of others who were regarded as non-Americans because they actually were non-Americans — foreign diplomats and their families, Indian tribes, and aliens who had not been naturalized.
Congress tweaked the law again three years later, creating an alien registry and lengthening to 14 years the time an alien was required to reside in the United States before applying for citizenship. But the assumptions about children of aliens did not change: They derived citizenship from their parents.
And even if we agree, arguendo, that the Court was right when it came to a child born in the U.S. of alien parents who were lawful settlers in our country, this would not redound to the benefit of a child born here of aliens whose presence violates our laws — who have never sought legal status or naturalization, who have never taken an oath of loyalty to our Constitution, and who have never renounced ties to foreign sovereigns.
That is the main point: The 14th Amendment was meant to ensure that the necessary relief for former slaves could not be undone by subsequent Congresses or court decisions. As we shall come to, the Supreme Court later resorted to the 14th Amendment in order to address an injustice done to an adult child of immigrants under the noxious Chinese Exclusion Act. The Court, however, was wrong to do so — certainly, to the extent that its ruling can be read (and has been read) to usurp Congress’s constitutional power to prescribe citizenship qualifications for children born in the United States of aliens who are not legally here. The 14th Amendment was about black people enslaved in America for generations. It was not about aliens transiting America illegally.
The status of children of aliens was not a national issue. Unlike slavery, over which the nation nearly dissolved, it was not a subject of such nationwide concern that it could drive the Constitution’s arduous amendment process. The rest of the 14th Amendment’s first clause makes crystal clear that the amendment had nothing to do with aliens trying to settle in the country; its objective was to prohibit several of the outrages that black people, in America for over two centuries, had been made to suffer:
Let’s put aside the American-born children of non-citizen members of Indian tribes, for they were granted citizenship by an act of Congress in 1924. And that, as we’ve seen, was only after Elk v. Wilkins, in which the Supreme Court reasoned that the 14th Amendment did not make them U.S. citizens because they were not “subject to the jurisdiction” of the United States in the sense of “complete,” “direct and immediate allegiance.”