Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause

Abstract

The Citizenship Clause of the Fourteenth Amendment is typically understood as granting birthright citizenship to U.S.-born children of illegal aliens. However, this orthodox view is disputed by “consensualists” who argue that the original meaning of the Clause’s qualifier, “subject to the jurisdiction thereof,” would have excluded such children from citizenship, by requiring that the parents of such a child possess federal permission for their presence on American soil, and that they not owe any foreign allegiance. Yet this “consensualist interpretation” is incorrect on originalist grounds. Evidence from before, during, and after the Fourteenth Amendment’s enactment demonstrates that the original meaning of “subject to the jurisdiction thereof” is actually the same as the qualifier’s current, “orthodox” interpretation: “subject to the civil and criminal laws of the United States.” Hence, the Citizenship Clause’s original meaning, as understood by both Congress and the ratifying public, is consistent with birthright citizenship for illegal aliens’ children.