Should Children of Illegal Aliens Born in the US be Automatic Citizens?

Robert Tracinski, who is usually a very astute thinker, has written on this subject in the Federalist.  This is a case where I believe he has used too broad a brush in making his argument in favor of the idea that literally anyone born in the U.S. is a citizen.  One may say it is a classic case of failing to understand context.

"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." 14th Amendment

First, in the present context of massive illegal immigration, it appears that the US and the states are not acting as though they have jurisdiction over the illegal immigrants. So the idea that this statement implies that every person born in the US is a citizen may be questioned on this basis. It is certainly true that the children of foreign staff of embassies and consulates born in the US are not included.

More importantly, Article I, Section 8 provides Congress the power "To establish an uniform rule of Naturalization...". This means that the 14th Amendment has as its context an established uniform rule of Naturalization and assumes that all persons within the US are there legally, albeit some as visitors and some as residents not yet citizens. This being the case, the 14th Amendment confers citizenship on the children of those legally in the United States who are born in the US, provided their parents and the child are subject to the jurisdiction of the US. This certainly included the one-time slaves of the south, almost all immigrants until relatively recent times, and the people of the conquered or annexed territories such as those of Alaska, Hawaii, the Mexican War, the Oregon Territory, the Louisiana Purchase, the Western Reserve, etc.  Robert Tracinski says that the denial of citizenship to the children of illegal aliens implies its denial to both the former slaves and to all immigrants.  This is not the case at all.

What is not at all clear is that the children of illegal visitors or immigrants to the US should be considered citizens of the US. In my opinion, it is not wise policy to grant them automatic citizenship, because it encourages illegal immigration.

Of course, some will claim that I do not like immigrants because I have made this point. That is not at all so. I favor a much more welcoming legal immigration policy than the one we have now in the law. But I do believe we should have an enforced, liberal immigration policy, which the Constitution implies was needed and desirable.

I have worked hard to promote the legal immigration or visitation rights of a number of very good scientists, who are also very good people. I have also observed that most of our illegal immigrants are in fact hardworking and good people. There is a need to have such people here under legal conditions, while we exclude or imprison felons.

All of my ancestors were legal immigrants of the second half of the 1800s, some of whom were of nationalities sufficiently discriminated against that they were named as examples in the immigration law of 1866 as people not to be discriminated against.

I almost always agree with Robert Tracinski, but not in this case.  It is not at all the case that one is throwing out the Constitution if one does not believe that every child born in the United States is automatically a citizen.