“[T]he modern view [of the Fourteenth Amendment] ignores—or misunderstands—a key phrase in the Citizenship Clause, which sets out two criteria for automatic citizenship rather than just one. Mere birth on U.S. soil is not enough. A person must be both ‘born or naturalized in the United States’ and ‘subject to its jurisdiction’ in order to be granted automatic citizenship. Congress remains free to offer citizenship more broadly than that, of course, pursuant to its plenary power over naturalization granted in Article I, Section 8 of the Constitution, but it has done so. Current law merely parrots the ‘birth’ and ‘subject to the jurisdiction’ requirements that are the floor for automatic citizenship already set by the Constitution.
With the ever-increasing waves of illegal immigration into this country undermining the policy judgments Congress has made about the extent of immigration that should be allowed, it is particularly important to get the birthright citizenship issue right, as the mistaken notion about it has provided a powerful magnet for illegal immigration for far too long. Worse, it has encouraged a trade in human trafficking that has placed at great risk millions of men, women, and children who have succumbed to the false siren’s song of birthright citizenship.”Apr. 29, 2015