George F. Will seems to think that the US-born children of immigrants (both legal and illegal) are not eligible for citizenship: http://www.washingtonpost.com/...
Oh boy. He basically argues that children of illegal immigrants (and potentially legal ones too) cannot be granted citizenship because their parents do not meet the Civil Rights Act of 1866's requirement that they "not [be] subject to any foreign power" and points out that this requirement already currently excludes the children of foreign diplomats.
"A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the 14th Amendment."
I'm not a legal expert, but I think there's a difference between diplomats and immigrants of both the legal and illegal variety: there is at least an implicit renunciation of subjugation to a foreign power by immigrants (perhaps especially by illegals), whereas diplomats explicitly serve on behalf of a foreign power. Unless we accept the notion that subjugation is determined only by nations and not also through the consent of the would-be subject, I don't think his larger argument holds up.
If we were to accept the notion that nations could call people their subjects regardless of what the people thought about that (and regardless of where they had decided to make their home), couldn't other nations just declare everyone in America one of their subjects, thereby invalidating the citizenship of everyone born in America from here on out?
In my reading of his column, Will unwittingly supports the argument that subjugation/citizenship is a consensual relationship. The University of Texas law professor he cites in support of his anti-immigrant plan specifically calls out the consensuality of the relationship:
And "no one can become a citizen of a nation without its consent." Graglia says this decision "seemed to establish" that U.S. citizenship is "a consensual relation, requiring the consent of the United States."
There's that key word: "consensual". The immigrant, in my mind, has in some sense renounced his allegiance to his home country, making Will's/Graglia's legal hurdle a pretty easy one to, well, hurdle over.