Andrew Hyman: Originalism, Illegal Immigration, and the Citizenship Clause
Michael Ramsey
Andrew Hyman (independent) has posted Originalism, Illegal Immigration, and the Citizenship Clause (30 pages) on SSRN. Here is the abstract:
The Citizenship Clause of the Fourteenth Amendment does not apply in cases of illegal immigration, but the arguments for that principle are not monolithic. The best reading of the original understanding in the 1860s is roughly this: the Clause impliedly requires domicile in the United States, domicile in turn requires at least local allegiance, but people who have not been received into the U.S. cannot pay any allegiance, so the dilemma is avoided by requiring domicile de jure — that is, the domicile must be legal. This dichotomy between de jure and de facto domicile was well-known in the 1860s. In cases of illegal immigration, citizenship should be sought via naturalization. Intertwined with birthright citizenship is the Clause’s guarantee of state citizenship, and scholars are right who say Washington D.C. is out of compliance, because Congress has not ensured state citizenship there.
RELATED: Trump to end birthright citizenship for children of illegal immigrants, halt refugee flow.
UPDATE: Here is the executive order. It also applies to U.S.-born children of lawful temporary visitors.