Children of illegal immigrants are not U.S. citizens.

• Author: Erler, Edward J.
• Position: National Affairs

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BIRTHRIGHT CITIZENSHIP is the policy whereby the children of illegal aliens born within the geographical limits of the U.S. are entitled to American citizenship--and it is a great magnet for illegal immigration. Many believe that this policy is an explicit command of the Constitution, consistent with the British common law system, but this simply is not true.

The framers of the Constitution were, of course, well-versed in British common law, having learned its essential principles from judge William Blackstone's Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of "birthright subjectship" or "birthright allegiance," never using the terms citizen or citizenship. The idea of birthright subjectship is derived from feudal law. It is the relation of master and servant; all who are born within the protection of the king owe perpetual allegiance as a "debt of gratitude." According to Blackstone, this debt is "intrinsic" and "cannot be forfeited, cancelled, or altered." Birthright subject-ship under common law is the doctrine of perpetual allegiance.

America's Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that "the good People of these Colonies ... are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolve." According to Blackstone, the common law regards such an act as "high treason." So, the common law--the feudal doctrine of perpetual allegiance--could not possibly serve as the ground of American (i.e., republican) citizenship. Indeed, the idea is too preposterous to entertain.

James Wilson, a signer of the Declaration of Independence and a member of the Constitutional Convention as well as a Supreme Court Justice, captured the essence of the matter when he remarked: "Under the Constitution of the United States there are citizens, but no subjects." The transformation of subjects into citizens was the work of the Declaration and the Constitution. Both are premised on the idea that citizenship is based on the consent of the governed--not the accident of birth.

Citizenship, of course, does not exist by nature; it is created by law, and the identification of citizens always has been considered an essential aspect of sovereignty. After all, the thunders of a new nation are not born citizens of the new nation they create. Indeed, this is true of all citizens of a new nation--they are not born into it, but rather become citizens by law.

Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was in 1868 that a definition of citizenship entered the Constitution, with the ratification of the Fourteenth Amendment. Here is the familiar language: "All persons born or naturalized in the United States, and subject to the...