Last month, Arizona lawmakers introduced legislation intended to invite legal review of the Citizenship Clause of the Fourteenth Amendment.  Other states are quickly following suit.  Why, after one hundred and fifty years of implementation, is this amendment so controversial?  Amendment XIV, Section 1 clearly states that “All 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.”  So doesn’t that mean that all children born in the United States (even to parents who are in the country illegally) are automatically citizens?  Where is the controversy?

This, Edward Erler argues in the latest Constitutional Guidance for Lawmakers essay, is a fundamentally incorrect interpretation of the Citizenship Clause.  He draws attention to the often overlooked second part of the phrase, and explains that “all persons born or naturalized in the United States” does not equal ‘subject to the jurisdiction thereof’.  As John Eastman has stated, “it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.”  The second half of the phrase therefore is not simply repetition, but introduces a key distinction.

The precise words of the Fourteenth Amendment express the very argument of natural law and citizenship grounded in consent expressed by the Founders.  Erler explains that by requiring not just the accident of birth, but also the conscious, exclusive allegiance that comes from being subject to the United States’ jurisdiction, the Founders rejected the notion of birthright citizenship they had left behind in England.   Birthright citizenship is not championed by the Citizenship Clause; rather, it has been “repealed by the principles of the American Revolution and rejected by the framers of the Fourteenth Amendment.”  Legal review of the current interpretation of this amendment is indeed in order.