Citizenship and the Babies of Non-Citizens

By Dan Stein
Published in The Social Contract
Volume 7, Number 1 (Fall 1996)
Issue theme: "'Anchor babies' - the citizen-child loophole"

Three questions must be answered in order to determine whether children born on U.S. soil to illegal aliens should be granted automatic U.S. citizenship.

(1) We must analyze the intended meaning of the Fourteenth Amendment clause, "subject to the jurisdiction thereof."

(2) We must ask whether the government should continue to bestow automatic citizenship on children born on U.S. soil if born to illegal aliens.

(3) We must ask whether Congress has the legitimate power to legislatively alter the current interpretation of "sub-ject to the jurisdiction" without resorting to a constitutional amendment.

These questions are complex, and we cannot possibly provide an exhaustive analysis in these few pages.1 However, it is our hope that our views will challenge those of others, and will counter-balance the common assumption that the status quo of granting automatic citizenship to children of illegal aliens has an indisputably correct legal mandate.


The Fourteenth Amendment of the U.S. Constitution declares that" [A]ll 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."2 Mirroring this language, section 1401 of Title 8 of the U.S. Code reads, in part "The following shall be nationals and citizens of the United States at birth (a) a person born in the United States, and subject to the jurisdiction thereof...." The government currently interprets these clauses as granting full U.S. citizenship to children born to illegal aliens on U.S. soil. However, this view is rooted in a particular interpretation of "subject to the jurisdiction" - an interpretation that is open to debate.

The phrase "subject to the jurisdic

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