The Volokh Conspiracy
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More on Birthright Citizenship and Undocumented Immigrants
Legal scholars Amanda Frost and Paul Gowder have both published notable new articles on the subject.
The incoming Trump administration plans to deprive children of undocumented immigrants of birthright citizenship. As I explained in a recent article in Just Security, this would be a blatant violation of the Citizenship Clause of the Fourteenth Amendment, which grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." There is no exception for children of illegal migrants. Legal scholars Amanda Frost (Univ. of Virginia) and Paul Gowder (Northwestern), have recently published excellent articles on the same topic: Frost in the Atlantic (there is a paywall), and Gowder in the UnPopulist. They effectively refute the various specious rationales offered for claims that children of undocumented immigrants aren't entitled to birthright citizenship because they are not "subject to the jurisdiction" of the US.
Among other things, they poke holes in the idea that these children aren't entitled to citizenship because their parents' entry into the US did not have "consent." I would add that nothing in the Citizenship Clause requires "consent," and that no real-world government genuinely enjoys the consent of the people it rules. Moreover, to the extent we care about consent, depriving children who have no other home of the right to live in the US would itself be an egregious nonconsensual exercise of government power.
In my Just Security article, I pointed out that denying birthright citizenship to the undocumented would in various ways go against the central objective of the Citizenship Clause which was to ensure citizenship rights for blacks denied them by the Supreme Court's ruling in the notorious Dred Scott case. Frost highlights another way in which this would be true:
In a recent law-review article, the legal scholars Gabriel Chin and Paul Finkelman explained that for decades, Africans were illegally brought to the United States as slaves even after Congress outlawed the international slave trade in 1808, making them the "illegal aliens" of their day. The nation was well aware of that problem. Government efforts to shut down the slave trade and deport illegally imported enslaved people were widely reported throughout the years leading up to the Civil War. Yet no one credible, then or now, would argue that the children of those slaves were to be excluded from the citizenship clause—a constitutional provision intended to overrule Dred Scott v. Sandford by giving U.S. citizenship to the 4.5 million Black people then living in the United States.
If children of people who entered the US illegally are not entitled to birthright citizenship, that logic would have applied to the children of illegally transported slaves.
There are many more good points in both articles. People interested in this issue should read both.
