Indians and Invaders: the Citizenship Clause and Illegal Aliens
INDIANS AND INVADERS: THE CMZENSHIP CLAUSE AND ILLEGAL AIENS GerardN. Magliocca* The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions and qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. -United States v. Wong Kim Ark' A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it. 2 -Richard Posner INTRODUCTION Immigration both defines and challenges our national identity, and hence few topics stir more intense feelings than the treatment of illegal aliens (or undocumented workers).' In the current debate on this issue, the courts are taking a back seat to militias, street protests, talk radio, and populist books that are all trying to redefine the legal culture.4 Nonetheless, one part of this cacophony that may spill over * Professor, Indiana University School of Law-Indianapolis. J.D., Yale University 1998; B.A., Stanford University 1995. Thanks to my colleagues Dan Cole and Maria Lopez for their thoughtful comments. 1 169 U.S. 649,693-94 (1898). 2 Oforji v. Ashcroft, 354 F.3d 609, 621 (7th Cir. 2003) (PosnerJ., concurring). 3 Even the terminology used to describe this phenomenon is controversial, as many observ- ers think that "illegal alien" is a pejorative term.
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