by Bryan H. Wildenthal (originally published in Los Angeles Daily Journal, June 10, 2010; republished here without change except as noted below, December 25, 2025)
(This essay was first published as a “Perspective” in the L.A. Daily Journal, which gave permission to republish it, as the author did on the American Constitution Society (ACS) blog, Aug. 9, 2010. It is also posted on SSRN. See Copyright & Permissions Note on Vita & Contact page for further permission to copy and distribute the essay for any nonprofit uses, subject to crediting the author and first publication by L.A. Daily Journal, and citing to its posting here.)
(No revisions have been made to the essay. It is republished here in its exact original form, except that additional paragraph breaks have been inserted for easier reading, internet links have been added as convenient references and updates, and an “update” paragraph and two “notes” are clearly marked in parentheses. If the essay were revised, some qualifications would be called for in regard to the statement that the U.S. “did not regulate most immigration in the late 19th century,” but the relevant points in that paragraph and the rest of the essay remain valid.)
(The essay is republished in light of the renewed national attention to this important issue. See, for example, Professor Evan Bernick’s commentary, with which this author agrees; this author’s review of a related book co-authored by Bernick; and the New York Times article on the Supreme Court’s grant of review in a lawsuit addressing the issue. Please note that U.S. Rep. Hunter is no longer in office, while Rand Paul was elected to the U.S. Senate and remains in office.)
The original text of the essay follows below:
Should children born on American soil obtain “birthright” U.S. citizenship, even if their parents are not legal immigrants? Rep. Duncan D. Hunter (R-Calif.) and “Tea Party” Republican Rand Paul, the Kentucky U.S. Senate candidate, are among many who say no. Hunter is co-sponsor of a bill seeking to strip citizenship from all future children born to non-citizens (even those legally residing here on student or work visas), unless at least one parent has legal permanent residence or serves in the U.S. armed forces.
The bill is perversely numbered H.R. 1868, for the year the 14th Amendment to our Constitution was ratified. That great Amendment, which built upon our Bill of Rights, defines citizenship and guarantees the basic rights of both citizens and all “persons” (including non-citizens). It declares, in part: “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.”
So-called “conservative” politicians, and especially “Tea Party” activists, claim to respect the “original meaning” of our Constitution, and criticize liberals and progressives for allegedly failing to do so. But it is right-wing radicals like Paul and Hunter who should pay closer attention to the text and history of the Constitution, which stand flatly opposed to their views. H.R. 1868 would betray and violate the core meaning of the 14th Amendment.
This issue was settled more than a century ago. The Supreme Court, in U.S. v. Wong Kim Ark (1898), rejected the idea that the status of parents (in that case, Chinese immigrants ineligible for U.S. citizenship and allegedly “subject” to a “foreign power”) barred citizenship for their children born under American jurisdiction.
The 19th-century cases, like the original debates over the 14th Amendment in 1866–68, make clear that only a handful of narrow exceptions apply to the concept of “jurisdiction” — mainly children born to foreigners with diplomatic immunity or within America’s Indian Nations as they existed at that time. (Tribal member Native Americans, while generally subject to federal jurisdiction today, were mostly not considered U.S. citizens in the 19th century; they were fully naturalized only in 1924.)
No one can seriously dispute that an illegal immigrant is “subject to [U.S.] jurisdiction.” How else would this country have jurisdiction to arrest and deport such immigrants, or prosecute them for immigration or other crimes they may commit, as the federal and state governments routinely do?
This rule of birthright citizenship was precisely what was intended and understood by the supporters of the 14th Amendment — ironically, Republicans of the “Party of Lincoln” that fought to end slavery and advance racial equality. Paul and Hunter would betray not only the Constitution, but the greatest legacy of their own party!
The Republicans of the 1860s sought to ensure that America would forever be a land of equality, free of caste or hierarchy based on race, nationality, or the status of one’s parents.
The legal status of a human being, born breathing American air within U.S. jurisdiction, should not be inherited or dependent on the status or conduct of parents over which the child has no control. That would harken back to the era of slavery and feudalism ended by the Civil War.
(Update: Note the explicit text of the 14th Amendment, quoted above, which refers to “jurisdiction” over “persons born” in the U.S., not over their parents. Opponents of the rule of birthright citizenship routinely ignore that basic fact, to which this original essay carefully attended by emphasizing the status of the newborn person. The three well-established exceptions to the rule are not to the contrary. Newborn children of tribal citizens born in tribal territory, or of invaders born in occupied territory, share the lack of jurisdictional “subjection” of their parents as a simple factual and territorial matter; and newborn children of diplomats share the “bubble” of diplomatic immunity for reasons necessary and highly specific to the law of diplomatic relations. It is telling that children of Confederate rebels born during the Civil War, in territory actually occupied by the Confederacy in open rebellion against the lawful U.S. government, were universally accepted, without any significant question, as birthright U.S. citizens. The exceptions are narrow indeed and have long been strictly and narrowly construed. Opponents are fond of deriding the rule itself as allegedly “feudal” in its origins, which is historically misleading at best and irrelevant in any event. See, for example, the excellent discussion in this paper.)
The racist opponents of the 14th Amendment tried to defeat it by raising a ruckus over the fact that it would grant citizenship, not just to African American former slaves and their children, but also to the children of Chinese immigrants and the nomadic Roma (so-called “Gypsy”) people. (Note: This author rejects use of the term “Gypsy,” which is considered pejorative by Roma people.)
California, in fact, refused to ratify the Amendment due mainly to hysteria over Chinese immigration. Hunter should pay heed to the courage of his California Republican forebear, Sen. John Conness (an Irish immigrant himself; Mount Conness in the Sierra Nevada is named in his honor). In 1866, Conness scornfully dismissed the immigrant-bashing of his day; he supported the 14th Amendment precisely in order “to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights ….”
The United States did not regulate most immigration in the late 19th century, so there was no precise legal analogy then to today’s “illegal alien.” But the Roma people were viewed then as an outlaw population. (Note: This author condemns that discriminatory historical attitude toward Roma people.) “Legal” immigration at that time was mostly undocumented and effectively uncontrolled, much like illegal immigration today.
The waves of migrants seeking economic opportunities aroused great fear and prejudice, just like today. Chinese and other Asian immigrants (those not born on U.S. soil) were prohibited at that time from ever obtaining citizenship, even as their work was exploited to build America’s railroads and develop the country.
Yet the citizenship of their children was rightly respected. Who today would deny that was the right choice for America’s future? The children of today’s migrants born on U.S. soil are also part of America’s future, and their birthright includes the 14th Amendment that guarantees freedom for us all.
We should honor that birthright.
The Skeptical Professor 