Are the U.S.-born children of illegal aliens — so-called “anchor babies” — American citizens?
The U.S. government treats them as such, but a new research paper concludes that the answer is “no.”
The research was the work of Massachusetts legal scholar Andrew T. Hyman and myself. Collectively, we have been publishing research on constitutional issues for over 60 years. Our findings are forthcoming in the British Journal of American Legal Studies.
The widespread assumption that the U.S.-born children of illegal aliens are American citizens is based on the first sentence of the 14th Amendment. It reads:
“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.”
Some claim being “born … in the United States” is sufficient to make one a citizen. They overlook that the amendment also requires that the child be “subject to the jurisdiction” of the United States. Others claim “subject to the jurisdiction” just means being in the country. But that reading makes the language repetitive. And the history of the 14th Amendment contradicts it.
History shows that for a child to be “subject to the jurisdiction,” the child’s parents must be “in allegiance” to this country when the child is born.
“Allegiance” is not just a word you use when pledging to the flag. It is a legal term — one deriving from centuries of English and European practice, and adopted into our own legal system.
“Allegiance” is the obligation a person owes to a country. The obligation can arise either by express agreement or certain other conditions.
A natural born citizen is generally in allegiance to the United States. Thus, his or her children are born “subject to the jurisdiction” of this country and are American citizens. The same is true of children born to a naturalized citizen.
Even the children of foreigners can be American citizens. If a foreigner visits legally from a nation with which we are at peace, as long as he is in the U.S. and behaves himself, he is in “local allegiance” to the United States. Such a foreigner is called a “friendly alien.” His U.S.-born children are American citizens. The Supreme Court confirmed this in 1898.
On the other hand, merely being in a country doesn’t create allegiance to that country. For example, a foreign diplomat owes allegiance only to his or her own nation. His or her U.S.-born children are not born “subject to the jurisdiction” of the United States, and are not American citizens.
When the 14th amendment was adopted, there were many Indians who lived in U.S. territory but owed primary loyalty to their tribes. They were not in allegiance to the United States, and their children were not deemed to be American citizens. In fact, the children of tribal Indians became citizens only in 1924, when Congress passed the Indian Citizenship Act.
Neither are foreign invaders “subject to the jurisdiction” of the United States. They are considered “alien enemies,” and their U.S.-born children are not American citizens.
As we show in our study, much of what is going on at the Southern border qualifies as an “invasion” in the sense that the Constitution uses that word. Because invaders owe no allegiance to this country, their children are not citizens.
Of course, some illegal immigrants are not invaders, such as those who entered legally but overstayed their visas. However, under international law, every nation has the right to control its own borders. A foreigner who enters or stays in a country in violation of law traditionally is classified as an alien enemy.
Thus, a woman who enters or stays in this country illegally and bears a child does not produce an American citizen. She merely produces another illegal alien.
Robert G. Natelson has written widely on many aspects of the U.S. Constitution, and is the nation’s most-published active scholar on the amendment procedure. He is the author of The Original Constitution: What It Actually Said and Meant (Apis Books, 3d ed., 2015) and Senior Fellow in Constitutional Jurisprudence at the Independence Institute. Natelson has been cited 39 times in U.S. Supreme Court decisions since 2013.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.