The problem of illegal immigration into the United States at our southern border was a major issue in our recent election. President Trump says that he will address the problem by deporting illegal immigrants.  Some have expressed the fear that he will be deporting children born in the United States to immigrants who entered the United States illegally. Many have asserted that these children are actually US citizens. 

They base their argument on a provision in the Fourteenth Amendment: “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.” This is the so-called “birthright citizenship” provision.

While I do not support the deportation of these children, I also do not support the interpretation of that provision in the Fourteenth Amendment that gives rise to the birthright citizenship argument. Supporters of the birthright citizenship argument have asserted “that birth on American territory automatically grants you the gift of American citizenship.” That argument has even been made recently in a column in Broad + Liberty. The author of that op-ed asserts that the Fourteenth Amendment stands for the proposition that “if you are born here, regardless of the status of your parents, you are a U.S. citizen.” Of course, that is not true, as the author of that op-ed would have to admit, since children born in the United States to foreign diplomats do not automatically become US citizens. So the status of one’s parents is not irrelevant.

Supporters of the birthright argument read the Fourteenth Amendment as if the phrase “and subject to the jurisdiction thereof” was not there. They read it as if it said: “All persons born or naturalized in the United States are citizens of the United States and of the state wherein they reside.” 

But the phrase is there, and it must have some meaning. The authors of the Fourteenth Amendment were not sloppy draftsmen. I may not know what they intended, but I can read what they wrote. They began the phrase with a conjunction. The clear language of the phrase begins with the conjunction “and.” To me, that conjunction adds a limitation to the preceding language. The limitation is that the person must be subject to the jurisdiction of the United States.

I submit that supporters of the birthright citizenship argument don’t understand the jurisdiction concept.  Jurisdiction has different meanings depending upon the context. Birthright citizenship supporters read the phrase as if it says “subject to the laws” of the United States. Of course, anyone here is subject to our laws, and may be subject to jurisdiction in the state in which they are found. A foreigner in our country is subject to our laws while here, and may be subject to state and federal jurisdiction while here. However, when they leave they are no longer subject to US jurisdiction. They are like a Florida resident who visits California: they are not subject to California jurisdiction unless they are there or have some connection to California that would under some law render them subject to California jurisdiction. But a US citizen is subject to US jurisdiction even when outside the United States.

I am not aware of any rationale as to why the framers of the citizenship phrase in the Fourteenth Amendment would have wanted it to confer US citizenship on anyone who just happened to be born in the US. And it is difficult to understand why a child born in the US to a foreign tourist or an illegal immigrant becomes a US citizen, but the child born in the US to a foreign diplomat doesn’t. The diplomat is not only here legally, but is given the benefit of diplomatic immunity. That is a privilege that others don’t get. Why would our Constitution and laws deny the benefit of citizenship to the child born to someone who is given a legal privilege, but grant it to the child of someone who committed a crime? The child is neither the diplomat nor the criminal.  

Congress could by law grant citizenship to those born here. I, personally, would like to see Congress do so. The child had no control over its parents’ illegal entry into the United States. I would even grant citizenship to a child brought into this country illegally by its parents. I would not visit the sins of the parents upon the child. However, that is different from saying that the Constitution automatically grants citizenship to them.  

Most of the benefits we enjoy are not provided to us by the Constitution. They are the result of laws. We can, and in my opinion should, be very generous in granting the benefits of citizenship to children who are here, even if their presence here is a result of an illegal act of their parents.

Howard Lurie is Emeritus Professor of Law, Charles Widger School of Law, Villanova University