Why the Constitution does not say that children of illegal aliens are citizens

Earlier today, while writing something up on the Hazleton decision (pdf version of the decision is here), I thought I would memorize Section 1 of the Fourteenth Amendment, so that I wouldn’t have to keep constantly looking it up every time I needed to quote it. As my eyes and mind focused on the famous first sentence,

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….

it suddenly came to me why, notwithstanding the literal meaning of the words, “All persons born … in the United States … are citizens of the United States,” it is incorrect to believe that the Fourteenth Amendment means that a child born in the United States of an illegal alien mother is an American citizen.

First, let’s start with the conventional interpretation of the passage, which goes something like this: The American-born child of an illegal alien is born in the United States, and since he is physically present in the United States, he is also as a matter of course subject to its jurisdiction. Since he satisfies the two requirements that he be born in the U.S. and that he be subject to its jurisdiction, he is a citizen.

In order to grasp what is wrong with this reasoning, we need to consider in context the two classes of persons to whom the Amendment refers: “All persons born or naturalized in the United States.” Naturalized means that the person, through a demanding and complex legal procedure ordained by the Congress of the United States, has been made a citizen of the United States. Since “naturalized” implies a legal framework in which the person is both present in the United States and has been naturalized by the United States, it stands to reason that “born” also implies a legal set of circumstances by which the person has come to be born here.

Indeed, the entire sentence, with its words “naturalized,” “subject to the jurisdiction thereof,” “citizen,” breathes forth a world of legality—a world in which the rule of law prevails. It is therefore utterly contrary to the logic and spirit of the passage to suggest that “born” refers to the child of an alien who has—as is true in many cases—illegally sneaked into the United States for the purpose of having a child which would automatically be a citizen, a status that in turn would give its illegal alien parents the ability to gain permanent legal residence as a result of their deliberate violation of U.S. law and their contempt for U.S. sovereignty.

If you’re still not convinced, look at it this way. Would any reasonable person believe that the language,

“All persons born or naturalized in the United States are citizens of the United States,”

really means,

“All persons born in the United States of illegal aliens who have illegally entered the United States AND all persons who have been legally naturalized by the U.S. government are citizens of the United States”?

In terms of constitutional originalism, it is unreasonable in the extreme to imagine that reasonable persons living at the time of the ratification of the Fourteenth Amendment would have thought that the Amendment pairs together as equivalent and equal categories the illegal act by which the child of an illegal alien mother comes to be born in the U.S., and the official, legal act of the United States government by which a person is naturalized. Nor is it reasonable to imagine—since illegal immigration was not an issue at the time of the ratification of the Fourteenth Amendment—that reasonable persons living at the time of ratification would think that the words “born in the United States” could be constructed as to apply to the children born of a vast army of illegal alien mothers who would be illegally entering and illegally residing in this country 140 years in the future. The rules of statutory and constitutional interpretation tell us that an interpretation that leads to absurd results cannot be correct. Therefore the phrase “born in the United States” does not refer to children born of aliens who are illegally present in the United States; it refers exclusively to children born of citizens or legal residents of the United States.

—end of initial entry—

Reader Robert B. points out that the intent of the first sentence of the Fourteenth Amendment that we’ve been discussing was to assure that the freedmen would be citizens. While this is course true, it does not answer the question of how the Amendment should be understood in relation to illegal aliens. The Amendment is written in broad language, not limited to former slaves, and must be understood in the context of situations not anticipated by its framers. Therefore its meaning must be constructed to determine how it should apply to those unexpected situations, based on what a reasonable person living at the time of ratification would think the language would or could mean. Can the words, “All persons born … in the United States … are citizens of the United States,” be reasonably constructed as to include children born to illegal alien mothers who are illegally present in this country? For the reasons I’ve given, I don’t think so.

Tim W. writes:

Before there was political correctness, there was such a thing as common sense. The modern interpretations of the 14th Amendment defy common sense.

It’s often argued that the 14th’s broad language requires us to invoke it in areas unanticipated by the its authors and ratifiers. There may be circumstances where that is true. But here are two questions we (and the courts) should always consider:

1) Would the 14th have been ratified if the suggested result would have been a known result of ratification?

2) Could an amendment to achieve the result in question be ratified today?

I would submit that the prevailing birthright citizenship interpretation of the 14th Amendment fails on both counts. Had the authors and ratifiers of the 14th known that their amendment would be interpreted as granting citizenship to the babies of millions of illegal aliens, they’d have reworded it to cancel that result. And if a constitutional amendment were submitted today to guarantee such birthright citizenship, it would not be ratified.

LA replies:

Absolutely. That is the most concise argument. “If the people at the time had known it would be interpreted this way, would they have ratified it?”

Ken Hechtman writes:

This is why I find constitutional law fascinating. Nothing is ever what it seems. When conservatives get done with the First Amendment, the words “Congress shall make no law” really mean “Congress may make some laws”. When liberals get done with the Second, the words “shall not be infringed” really mean “may sometimes be infringed”. Now you’ve explained why the words “All persons born…” really mean “Some persons born…”.

I figure it like this. The Constitution is full of open invitations to interpret. Whenever there’s a qualifier, like “cruel and unusual punishment”, “unreasonable search and seizure”, “excessive fines”—those qualifiers can be understood according to the standards of the time. Same way “cruel and unusual punishment” meant something very different 200 years before the Framing, it could well mean something equally different 200 years afterwards. But in the areas I mentioned above, there’s no wiggle room given. “No law” means “no law”. “Shall not be infringed” means “shall not be infringed”. And, clever though your argument is, “all persons born” means “all persons born”.

LA replies:

No cigar for Ken. You’re not reading the whole sentence. However, I am at least partly responsible for your confusion, because I said that the sentence should not be taken literally, and then I quoted the sentence while leaving out “and subject to the jurisdiction.” So it looked as if I was saying that “all persons born in the U.S. are citizens thereof” does not always mean what it plainly says.

What it does say is, “All persons born or naturalized in the United states, and subject to the jurisdiction thereof, are citizens of the United States …”

If the only condition for being a citizen were that a person be born in the U.S., there would not have been the further condition that the person also be subject to the jurisdiction of the U.S. Further, if it were the case that all persons born in the U.S. were, by definition, subject to the jurisdiction of the U.S., then there would have been no reason to add, “and subject to the jurisdiction” of the U.S.

Therefore some persons born in the U.S. are not subject to its jurisdiction in the sense of the Amendment. Who are these persons? One agreed-on class is children of foreign diplomats. Up until an erroneous Supreme Court decision in 1898, it was understood that a child born to the subject of a foreign power temporariliy residing in the U.S. was not a U.S. citizen.

My argument in the initial post in this entry is somewhat idiosyncratic, coming from a noetic leap rather than from informed constitutional reasoning. :-) But I still think it’s worthwhile. However, much better and more solid arguments are made by Meese and Eastman in the amicus curiae brief I quote in the later entry, “The truth about Birthright Citizenship,” where these issues are cxplained very clearly.

Posted by Lawrence Auster at July 28, 2007 08:32 PM | Send