There is much chatter and confusion around the topic of “illegal immigrants”. Of particular interest is the status of their children if born on American soil: are they United States citizens? Let’s consider some of the relevant facts before reasoning to a conclusion. And let us bear in mind the fact that language-based arguments and provisions have their limitations, relying on much which goes unstated — proper understanding of context, including time, place, and circumstances. In the course of describing ideas, we are limited in foresight and by the customs and universal assumptions of our time; and in the course of reviewing those descriptions, we are limited by our understanding of their language, the concepts, the definitions of terms, and the experience and intentions of the writers. This is why it is imperative to carefully study and properly contextualize the history, the debates, and the supporting literature around the founding of the United States. The meaning of words and the underlying assumptions are not disconnected from the relevant circumstances, customs, and conditions of the time.
First, let us revisit the founding document of the American republic: the Constitution (ratified in 1787) did not originally provide for comprehensive immigration conditions; so far as the matter of citizenship is concerned, it provided only for establishing a “uniform Rule for Naturalization” (Article I, Section 8, Clause 4), on the pertinent assumptions and contexts of the time of the Constitution’s ratification. It was much later, in 1868, that the Fourteenth Amendment would declare 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.” As for the implications of that part requiring persons be “subject to the jurisdiction thereof”, this was meant at the time to distinguish from cases of foreigners temporarily visiting the United States (i.e. as tourists) — those not “born within the jurisdiction and allegiance of the United States” (Notes on Elementary Law by William C. Robinson, 1875). The latter condition requires, at minimum, lawful permanent residence in this country.
Next, it is important to remember that, in the infancy of the new American republic (1787), the “people” mentioned in the Constitution were the people belonging to their respective states, not to a single nation; the very notion of any ‘nation’ being specifically rejected at the drafting of the Constitution. Likewise, the states were regarded sovereign and independent, the sources of authority at the ratification of the Constitution and the possessors of all powers not specifically enumerated in the Constitution. Remember, as James Madison put it in Federalist No. 45, the powers of the federal government are “few and defined”, whereas those “which are to remain in the State governments are numerous and indefinite”:
“The former will be exercised principally on external objects; as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
Thus, with the central government being so small, and with no welfare state to incentivize inflows of opportunists, the prospect of mass “illegal immigration” was not just remote but unforeseen.
Given the fact that the Constitution does not provide for subsidies to individuals, were the Founders to even consider the potential for exploitation of government handouts, it is likely that they would have assumed that the handouts were being administered exclusively at the state level, and that, thus, any related issues or crimes pertaining to exploitation of these sponsored programs would be litigated at that level.
While this is sheer speculation, it does accord with other powers which were assumed the jurisdiction of the states, respectively. Of course, this is not to suggest that the matter of illegal immigration is merely a state issue, only that the Founders could not have conceived of a central government growing large and powerful enough to invite this kind of criminal exploitation; they could not have conceived of this kind of invasion, aided no less by a central government blurring the lines of citizenship by admitting political refugees and giving aid and comfort to aliens en masse, and even affording them the rights and protections of citizens (including, in many cases, the power to vote in elections). On the contrary, given the fact that the central government has created and exacerbated the illegal immigration crisis through its massive welfare state and its weak protection of the country’s outer borders, and given that this is clearly a matter of security and the “general welfare” of all Americans, economically as well as physically, the central government is intimately involved in this quagmire and, by the Constitution, called to act to quell the “invasion” (Article I, Section 8, Clause 15, and Article IV, Section 4) or “predatory incursion” (Alien Enemies Act of 1798).
As for the children of illegal immigrants, as their parents are assumed to have unlawfully entered and/or unlawfully remained within the United States, and given that children were (at the time of the drafting of the Constitution) generally considered a kind of property — so far as they were assumed to belong exclusively to their parents, and to remain in their care and custody and under their domestic authority — and given that “servants” (or “slaves”) considered legal property were also excepted from citizenship, neither the illegal-immigrant parents nor their children would be covered by United States “jurisdiction” in the manner that “jurisdiction” applied at the time the Constitution was drafted; “jurisdiction” at that time pertaining exclusively to the suite of protections and obligations (and, later, “allegiances”) extended to those under its laws and within its borders — those assumed to be in legal standing as citizens within their borders, not criminals, invaders, nor fugitives from justice. To the extent that the latter remain under the “jurisdiction” of the United States government, it is as criminals or enemy combatants, not as citizens in the full enjoyment of their rights. As Associate Justice of the Supreme Court, Joseph Story supported this idea in his 1834 work Commentaries on the Conflict of Laws, Foreign and Domestic, which was the first major treatise of its kind in America: “Aliens residing within a state are bound by its municipal laws in the same manner as citizens in matters of person and property, but they are not entitled to political rights. Their presence is tolerated under the law of nations, and may be terminated if they violate public safety or the conditions of their residence.”
The 1890 case of Mary Devereaux offers further supporting testimony on the matter of birthright citizenship. An Irishwoman being held on a ship in New York harbor while awaiting immigration approval, Devereaux was eventually taken to a New York hospital to give birth to her daughter before re-boarding the ship. It was later determined that Mary Devereaux was not eligible for lawful admission to the United States, and thus the Department of Justice did not recognize the citizenship of her daughter, despite the fact that her newborn daughter was physically born in the United States. Consequently, both mother and child were sent back to Ireland. This case stands as testament to the fact that children born to those ineligible for citizenship, or to those not lawfully domiciled in the United States (United States v. Wong Kim Ark, 1898), are not United States citizens — and this is a cut-and-dry case of a woman pursuing lawful admission to the United States, as opposed to the unlawful and underhanded (and deportable, per the Immigration Act of 1891) who take up residence in America as illegal (or “undocumented”) immigrants.
Given that, by definition, illegal immigrants remain unlawfully within the borders of the United States, they do not qualify for the full protections of citizenship — they are equivalent in standing to the aforementioned: criminals, fugitives, and invaders; and per Article I, Section 9, Clause 2, of the Constitution, invaders are not entitled to the same protections as citizens. Therefore, they do not meet the necessary requirements to fall under the “jurisdiction” of the United States where complete “jurisdiction” includes protections not enjoyed by criminals or invaders. And let’s be clear: an invader need not be part of a centralized or uniformed network; an “invader” need only be unlawfully present — or engaged in unlawful activity harmful to the “general welfare” of citizens or subverting the legitimate affairs and authority of government — within the borders of any state. The common combination of unlawful presence within state borders and criminal exploitation of government-sponsored programs — also considering the scale of this abuse and the shared origins of so many engaged in this kind of behavior — makes it clear that each is a case of an individual invader, part of a larger “invasion” or “incursion” upon United States territory, U. S. citizens and their systems of government. The extent to which said “invaders” are engaged wittingly, and the extent to which said “invasion” or “incursion” is coordinated, is simply immaterial.
Ultimately, at the time of drafting the Constitution, the very concept of illegal immigration was undeveloped and scarcely considered. For this reason, in their time the closest analog in principle (for any unwanted or unwelcome foreigner, or any foreigner threatening the public order) would be an “invader” or “intruder”. Remember, before the 1880s, the United States had no visas, no border inspections, no deportation system, and no unlawful-entry statutes. There was at the time little to no concern about illegal immigration; instead, the language focused on the threat of foreign “intruders”, “invaders”, or “enemy aliens”. These terms reflected the legal principle that a foreign person entering without recognized allegiance was an outsider to the political community, not merely an unpermitted traveler. Indeed, this was, in fact, one of the many concerns considered just ahead of the famed Lewis and Clark Expedition: in 1803, Secretary of State James Madison expressed doubts about whether “the laws give any authority at present beyond the limits of the U.S.,” and likewise whether such an expedition journeying into territory owned by France and administered by Spain would risk being identified as a military reconnaissance, or an invasion.
This context, in part, explains how “illegal immigrants” would’ve been treated at the time of drafting the Constitution, but it also explains the differences in applicable language surrounding such events and circumstances that the Founders and early political thinkers in America hadn’t anticipated; and because of their shared customs and the form of government they believed they had created, they had little cause to safeguard against this possibility — the possibility of “invaders” being framed as “illegal immigrants” with political privileges. Remember, for most of American history, the scope and authority of government was so limited and so small that there was virtually nothing to be gained automatically — no welfare state to be exploited — by non-citizens masquerading as citizens. Perhaps the greatest civic power wielded by any citizen was his power to vote in elections, and this (the matter of voting) was strictly under the authority of each state, not the central government.
Therefore, it is clear that neither illegal immigrants nor their offspring were ever intended or imagined to enjoy the same protections extended to native-born or naturalized citizens under the Constitution. After all, the children born to illegal immigrants can’t be expected to raise themselves, nor to become the obligation of any United States citizen (let alone a bureaucracy that didn’t exist, not even in the wildest imagination of any of the Founders), so if only at the practical level, there is no sense in classifying them as United States citizens, as the distinction would merely be a symbolic one.
Indeed, in the case of birthright citizenship, English common law (which the Founders accepted by default except where the Constitution overrode it) made specific exceptions for certain children: those born to foreign diplomats and those born to foreign invaders. Neither were to be classified as United States citizens, even despite being born on American soil.
Thus, it stands to reason that (1) illegal immigrants would carry equal political standing as any invader (or, more charitably, as any person denied citizenship), meaning that their children — even despite being born on U. S. soil — would not be eligible for citizenship; (2) the U. S. Constitution did not account or provide for a set of circumstances that would in any case be assumed the responsibility of each state; (3) any activity, including the birth of a child, by any person unlawfully remaining in the United States would logically be considered illegitimate under the law; and (4) any subsequent decisions, judgments, or case law would stem not purely from the Constitution itself, nor from the documented or inferable intentions of the Founders, but from determinations under wholly different social circumstances, new intellectual perspectives, and changed systems of government each in themselves betraying the letter and the spirit of the law.
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