It is often said that there are two sides to every argument, but the argument about birthright citizenship for children born here of illegal aliens shows that it isn’t true. There is nothing to be said for one side of the argument. A policy of granting birthright citizenship to children born here of illegal aliens is not merely unreasonable and harmful, but irrational and self-contradictory, a matter of both punishing and rewarding the same conduct. It would be difficult to imagine a more irrational and self-defeating system of law than one that makes unauthorized entry into this country a criminal offense and at the same time provides the perhaps greatest possible inducement to such entry, the grant of American citizenship. There is no way to argue that that makes sense. It creates an inducement to illegal immigration while providing no public benefit.
The argument usually made by defenders of birthright citizenship for children born here of illegal aliens, therefore, is not that it makes sense and is not irrational, but that it is required of the Constitution. It would certainly be odd, to begin with, if the Constitution required the United States government to adopt an irrational policy the effect of which is to give up control of immigration policy. We can be sure that the Constitution does no such thing. “The Constitution” as Justice Robert Jackson famously pointed out, “is not a suicide pact.”
The constitutional provision relied on by defenders of birthright citizenship for children born here of illegal aliens is the first section of the Fourteenth Amendment which provides that “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.” The provision is explicit that not all persons born in the United States, but only persons born in the United States and subject to its jurisdiction are granted citizenship. Since everyone who is in the United States is necessarily subject to its jurisdictions to some extent, the provision must refer only to persons fully subject to United States jurisdiction, and the purpose and history of the provision as well as its plain meaning make clear that it does not grant citizenship to children born here of diplomats or invaders or, the Supreme Court has held, children born here of members of Indian tribes. The reason is that, although those children are, of course, subject to the jurisdiction of the United States to some extent, they are not fully subject to it, because they remain subjects of and owe allegiance to a foreign country or some other sovereignty. The same is true, of course, of children born here of illegal aliens who, like their parents, remain subjects of a foreign country.
When it first considered the question, the Supreme Court stated in a dictum that the Fourteenth Amendment does not grant citizenship to children born here of even legal resident aliens. In a later case, however, a divided Court held that the amendment does give citizenship to children born here of legal resident aliens, and in a still later case, stated in a dictum in a footnote, that it also grants citizenship to children born here of illegal aliens. It is these last two decisions, especially the last one, that defenders of birthright citizenship for children born here of illegal aliens rely on. The decision as to legal resident aliens is highly questionable, however, and the decision as to illegal aliens can be shown to be based on mistaken reasoning. It is, in any case, not a statement of the law or a precedent because the issue was not involved in the case.
Charles Evan Hughes, later a Supreme Court Chief Justice, famously said “We are under a Constitution, but the Constitution is what the judges say it is.” The result is that the question whether something is constitutional is best seen as a question of how the Supreme Court would be likely to rule on it in an actual case. Today many constitutional law scholars take the position that the Supreme Court should not interpret the Constitution to grant birthright citizenship to children born here of illegal aliens. A Yale law professor and political science professor have written an important book taking that position. Judge Richard Posner, probably the most influential federal judge not on the Supreme Court and perhaps America’s leading public intellectual, has argued that Congress can and should pass a statute ending birthright citizenship for children born here of illegal aliens.
Congress is currently considering legislation ending birthright citizenship for children born here of illegal aliens. If Congress enacts and the president signs such a statute—to repeat, there is no rational argument against it—I believe that it is more likely than not that the Supreme Court would not hold it unconstitutional.
Lino A. Graglia is the A. Dalton Cross Professor of Law at the University of Texas School of Law. A native of Brooklyn, New York, he received his B.S. from the City College of New York in 1952 and his LL.B. from Columbia University Law School in 1954, where he was an editor of the law review. He was an attorney with the U.S. Department of Justice and practiced law in Washington, D.C. and New York City before joining the Texas law faculty in 1966. He has also taught at the Universities of Virginia, Utah, and Puget Sound.