Richard Epstein (New York University School of Law) has posted The Hopeless Case For Birthright Citizenship: The Fourteenth Amendment Did Not Touch the Status of the Children of Illegal Aliens and Temporary Visitors to the United States (47 pages) on SSRN. Here is the abstract:
The conventional wisdom in the courts and the academy is that the children of illegal aliens or temporary visitors are entitled to birthright citizenship (“BRC”) even though their parents have no constitutional right to stay in the United States. The defenders of BRC offer no philosophical explanation that severs the fate of children from their parents to whom they were linked under the natural law principles that dominated the entire era, and which were reflected unambiguously in the works of Littleton, Coke, Blackstone, as well as in England and the United States which explicitly denied aliens the right to sue. These principles also lay beyond the Naturalization Acts from 1790 through 1870 which restricted naturalization to free white persons of good character who had renounced the citizenship of their own sovereign in order to obtain citizenship of the United States by judicial proceeding. The 1866 Civil Rights did not alter in any way the rights of foreigners, and its ratification in the Fourteenth Amendment likewise did not alter the citizenship status of any alien, legal or illegal.
The key distinction throughout this entire period was between “subject to the jurisdiction” and “within the jurisdiction” which is faithfully preserved in the Fourteenth Amendment. The former, which covered allegiance and protection, was given only to natives in explicit contrast to aliens whose short-term relationship subjected them to the general laws of the nation and gave the same protections as citizens, but only so long as they remained in the territory. Just that distinction was preserved in the Fourteenth Amendment even though it was either ignored or misread in key cases including most importantly Wong Kim Ark which incorrectly held that a Chinese subject born legally in the United States was entitled to citizenship at a time when all persons of Chinese origin could be barred from this country under the Chinese exclusion acts.
The entire weight of the historical evidence is either ignored or misinterpreted in all of the defenses of BRC, which should be rejected. Accordingly, the Trump Executive Order that condemned the doctrine did not unilaterally rewrite the Constitution when it sought, prospectively, to return to the original constitutional position.
This is the third major article by an originalist-oriented law professor to recently endorse a limited view of the citizenship clause (joining articles by Ilan Wurman and Kurt Lash). But each has a different view of the argument and results:
Epstein: citizenship only for children of citizens
Lash: citizenship for children of citizens and lawfully present aliens
Wurman: citizenship for children of citizens and lawfully domiciled aliens (but not temporary visitors) [co-blogger Andrew Hyman also recently argued for this position].
Posted at 6:30 AM