Tamar Jacoby ("Kiss the Melting Pot Goodbye," Nov. 19) finds my interpretation of the Constitution's Citizenship Clause "alarming" because it would permit Congress "to exclude illegal immigrants by statute" rather than by constitutional amendment. Ms. Jacoby's argument demonstrates a misunderstanding of the Constitution's mandate and the political theory on which it is based.
The 14th Amendment provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens . . . ." To treat the last clause as describing merely territorial jurisdiction, as Ms. Jacoby does, is to render the clause superfluous. Even temporary visitors are subject to U.S. jurisdiction in that sense; everyone here has to obey our traffic laws, for example. The clause must therefore mean something much more -- an allegiance-owing jurisdiction.
The debates in the Congress that approved the clause, and the unanimous opinion of the Supreme Court justices who first interpreted it, confirm this understanding. Sen. Reverdy Johnson of Maryland explained during floor debate, for example, that "all this amendment provides is, that all persons born in the United States and not subject to some foreign power -- for that no doubt is the meaning of the committee who have brought the matter before us -- shall be considered as citizens of the United States." The author of the provision, Sen. Jacob Howard, announced that the clause "will not, of course, include foreigners."
The Supreme Court first considered the clause in the Slaughter-House Cases of 1872, unanimously recognizing that the phrase "was intended to exclude from its operation children of . . . citizens or subjects of foreign States born within the United States." This view was confirmed in the 1883 case of Elk v. Wilkens. The phrase, according to the court, meant "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." Children of temporary visitors to the United States, particularly those who are here illegally, owe primary allegiance to their parent's country, not to the U.S., and are therefore not guaranteed citizenship by the terms of the 14th Amendment.
Congress retains the power to offer citizenship more broadly than the Constitution requires, of course, pursuant to its plenary authority over naturalization. To date, it has not done so. In 1898, the Supreme Court raised the citizenship floor mandated by the Constitution slightly, to include children of legal, permanent residents who, by virtue of a treaty with the Chinese emperor, were never eligible for citizenship themselves. But to read the holding in Wong Kim Ark as determining that the Constitution also mandates automatic citizenship to children of temporary, illegal immigrants not only presses the Constitution's text beyond the breaking point, but significantly intrudes on Congress's plenary power over naturalization.
More fundamentally, such a view permits illegal immigrants, by their unilateral and illegal action, to demand membership in a political community supposedly grounded on mutual consent. It permits people such as Yaser Esam Hamdi, who clearly owed his primary allegiance to a foreign power and who was captured in Afghanistan in armed conflict against the U.S., to lay claim to the protections of citizenship merely because he was born in Louisiana while his father was on a temporary work visa. And it prevents Congress from making the critical policy judgments about the level of sustainable immigration that the Constitution deliberately assigns to it, providing instead a strong incentive for illegal immigration that fosters the kind of separatist communities within our midst that have produced mass riots in France. We should be heartened, not "alarmed," that Congress is beginning to take its responsibility over immigration seriously.
Dr. John C. Eastman
Professor of Law
Chapman University School of Law
Director, The Claremont Institute Center for Constitutional Jurisprudence
Anaheim (sic), Calif.
For a more comprehensive treatment of this subject, see Dr. Eastman's congressional testimony, available here (click "document delivery" icon in upper left corner for article download).