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11/16/2015

Allegiance and Illegal Immigration
Andrew Hyman

The Constitution says that immigrants are entitled to birthright citizenship only if they are "subject to the jurisdiction" of the United States.  Mike Ramsey has  written here at this blog that, “[T]here is no sense in which children of illegal aliens are not ‘subject to the jurisdiction’ of the United States.”  But, as I have mentioned before, this word “subject” can be defined in many different ways (see this dictionary).

The best definition of the word “subject” in this context is “owing allegiance”.  Earlier this year, Professor Rob Natelson wrote a piece in the American Thinker explaining that the U.S. Supreme Court adopted this “allegiance” definition in 1884 and has never repudiated it.  The concept of "allegiance" was traditionally used to determine whether a person is a “subject” of the crown.

In England there were four different kinds of allegiance, as detailed by Lord Coke in Calvin’s Case.  The pertinent one here is called “local allegiance” or in Latin “ligeantia localis”.  So our question about illegal immigration should boil down to whether an illegal immigrant to the United States owes a local allegiance to the U.S. according to accepted legal doctrine in 1868.  If you look at that last link I just gave, Lord Coke explained that “ligeantia localis” occurs “when an alien that is in amity cometh into England….”  I very much doubt that someone is in amity who jumps ahead of line and sneaks across the U.S. border while evading American law enforcement.  I could be mistaken about this.  It could be that such a person is technically in amity as long as he carries no weapon, or is not a soldier, or something like that, but I doubt it.  As far as I know, there is no sense in which illegal aliens have ever come into the United States in "amity", unless taken by force (such as during the illegal slave trade).

The question whether the child of a resident illegal alien is subject to the jurisdiction of the U.S. is not easy.  As Professor Natelson says (at the link above), “Anyone who tells you this is an easy question is not telling you the truth.  It is an extraordinarily difficult question.”  And the answer to that question is certainly not provided by the ambiguous quote from Jacob Howard that recently appeared at this blog.  Professor Natelson is correct that "anyone who reads Senator Howard’s comment in context can see that it actually is ambiguous."