The Citizenship Clause and Illegal Immigration

There is an article in today’s Los Angeles Times discussing a proposed ballot proposition that would deny various services to illegal immigrants and bar the issuance of birth certificates to children born here of illegal immigrant parents.  Advocates of the proposition state that they want to use this as a vehicle to force the Supreme Court to address the issue of whether such children are citizens under Section One of the Fourteenth Amendment.  This could also force a reconsideration of the Court’s decision in Plyler v. Doe, which held that denying public education to illegal immigrant children who were not citizens violated the Equal Protection Clause.

On the first point, I wrote an article last year explaining that the original understanding of the Fourteenth Amendment and the (albeit limited) case law supports the view that children born here to illegal immigrant parents are citizens.  (I can’t access SSRN right now, otherwise I would attach a link.)  As there is no Supreme Court holding to that effect, a proposition like this could, if enacted, require the attention of the Justices.  It seems clear to me, though, that denying a birth certificate to any citizen due to his or her parentage would violate the Citizenship Clause and equal protection.

On the second point, I’m less certain what would happen.  I’ve always thought of Plyler as a classic Justice Brennan opinion.  He had five votes and the result is appealing, but the reasoning is weak. I doubt that the case would be overruled, but one could imagine a decision limiting its application to primary and secondary education and allowing states (when not preempted by a federal statute) to deny other benefits (e.g., a driver’s license) if they so desire.

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12 Responses

  1. Delaware Bob says:

    I would have to say this is very good news! Talk about needing Comprehensive Reform, it should start here. Why should ILLEGAL ALIENS get FREE health care for being in this Country ILLEGALLY? Yes, why?

    Illegal aliens have made America the dumping ground for all their illegal alien children, then we have to school them and give them free medical care. I’m sick and tired of these illegal aliens snubbing their nose at our laws. Yes, we need Comprehensive Reform to end this.

    How can you ILLEGALLY enter this Country and be rewarded with the precious gift of U.S. citizenship for a crime that the ILLEGAL ALIEN has committed by ILLEGALLY trespassing onto this Country. It makes no sense to me.

    I for one, am sick and tired of these ILLEGAL ALIENS snubbing their nose at our immigration laws and the many other laws of this Country. If our Federal Government can not ENFORCE our immigration laws, and get these ILLEGAL ALIENS out of this Country, then let the States do it! One way or another, an end has to come to this illegal immigration, and not with AMNESTY! Amnesty will only encourage more ILLEGAL ALIENS to invade our Country and reward those who broke our laws and raped the American taxpayer in many ways…depressing our wages, taking our jobs, overwhelming our schools with their ILLEGAL ALIEN children, driving without a license or car insurance, all the crime from stolen identities to rape, drugs and everything else.

    It’s time for ZERO TOLERENCE with these ILLEGAL ALIENS. It’s time for them get out of this Country and back in their own Country where they belong. When we get rid of the ILLEGAL ALIENS, we will get rid of all the problems that go with them.

  2. Chaos says:

    I hate to break the news to you but Plyler v. Doe has nothing to do with immigration or citizenship.
    Plyler v. Doe, was about a Texas state statute denying funding for education to children who were illegal aliens.

  3. Gerard Magliocca says:

    Er . . . that’s what my post says about Plyler.

  4. Chaos says:

    In 1866, Senator Jacob Howard clearly spelled out the intent of the 14th Amendment by stating:

    “Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

    This understanding was reaffirmed by Senator Edward Cowan, who stated:

    “[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word…”

    The phrase “subject to the jurisdiction thereof” was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.

    The correct interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.

    Over a century ago, the Supreme Court appropriately confirmed this restricted interpretation of citizenship in the so-called “Slaughter-House cases” [83 US 36 (1873) and 112 US 94 (1884)]13. In the 1884 Elk v.Wilkins case12, the phrase “subject to its jurisdiction” was interpreted to exclude “children of ministers, consuls, and citizens of foreign states born within the United States.” In Elk, the American Indian claimant was considered not an American citizen because the law required him to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.”

    The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe “direct and immediate allegiance” to the U.S. and be “completely subject” to its jurisdiction. In other words, they must be United States citizens.

  5. Chaos says:

    Gerard Magliocca – July 14, 2009 at 6:28 am

    Er . . . that’s what my post says about Plyler.

    Errrr, no it doesn’t, it says “illegal immigrant children”.
    An “immigrant” is an alien admitted to the U.S. as a lawful permanent resident.
    Proper terms are “illegal alien” or “undocumented alien” but not “illegal immigrant.”
    Please in the future refer to illegal aliens as “illegal aliens” which properly keeps the focus of the discussion on the fact that such individuals have broken our laws and are therefore criminals to one degree or another, and that these individuals do not owe allegiance to our country.

  6. Gerard Magliocca says:

    Other people like “undocumented workers.” There’s no substantive difference.

    Your analysis of the original understanding is incorrect for the reasons that I explain in my article. It may not convince you, of course, but there we are. I would note that children born here to slaves illegally imported into the United States after 1808 were made citizens by the Fourteenth Amendment. Under your theory, that was a mistake, right? Their parents were here illegally.

  7. Gerard Magliocca says:

    I should add (sorry, I should have put this in the last comment) that the statements from Slaughterhouse and Elk that you cite were repudiated by the Court in the 1890s.

  8. Chaos says:

    Gerard Magliocca – July 14, 2009 at 8:16 am

    Other people like “undocumented workers.” There’s no substantive difference.

    Yes there is, The terms “undocumented worker” or “undocumented immigrant” is designed to deliberately gloss over the fact that such individuals have broken our laws.

    The proper term used in U.S. law is illegal alien.

  9. JP says:


    Can you provide a citation?

    Also, can I start calling people who violate traffic (or any other) laws “illegal citizens?”

  10. EasyontheFoam says:

    Let’s start with some basic definitions …

    From the USCIS website

    Immigration and Nationalization Act : ACT 101: Definitions

    The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

    The term “alien” means any person not a citizen or national of the United States.

    The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens (the definition goes on to list 15 classes of non-immigrants).

    Two other classes of interest “inadmissible” and “deportable” are described in 8 USC 1182 (Sec 212) and 1227 (Sec 237) respectively.

    REMOVABLE.—The term ‘removable’ means—
    ‘‘(A) in the case of an alien not admitted to the United
    States, that the alien is inadmissible under section 212, or
    ‘‘(B) in the case of an alien admitted to the United
    States, that the alien is deportable under section 237.

    Illegal is not defined in the immigration statute. You might say it is common-sense … like, if-you-talk-on-the-phone-without-a-hands-free-device-while-driving-in-some-states-you-are-breaking-the-law illegal.
    Illegal immigrant, in such broad usage, would be a blanket phrase that covers all immigrants who have run afoul of the law. Compare this to a phrase such as “illegal citizen” a class of all American citizens who have broken the law – and which probably encompasses the entire adult population of the US and you will see that the phrase fails to be a useful descriptor.

    I contend that the legally proper term to describe the kind of person who causes some of our compatriots to foam in the mouth like oversteamed lattes is “a removable immigrant.”

    Until Chaos and others prevail upon Congress to rewrite the Immigration and Nationalization Act definitions, they need to stick to definitions that are out there.

  11. kurt says:

    It is my understanding that being an undocumented alien or illegal alien in the parlance of the thoughtful thinkers Delaware Bob and Chaos is in the eyes of the law, a misdemeanor,much like speeding or jaywalking. I am curious how they square with this fact? Certainly using the label illegal alien goes a long way with keeping the scarry boogie man in the forefront for those who get their ideas from talk radio, but for those who actually think for themselves lets keep some honesty in this argument.

  12. not an esquire says:

    Actually none of the posts ‘say’ anything. That is how your posts read.

    But the real question is whether the court will rule 14th amendment.