[continued from previous message]   
      
   it meant, fundamentally, was that foreign nationals could secure   
   American citizenship for their children merely by giving birth on   
   American soil, whether or not their arrival on America’s shores was   
   legal or illegal, temporary or permanent.   
      
   Justice Gray stated that the children of only two classes of foreigner   
   nationals were not entitled to the birthright citizenship he thought   
   guaranteed by the Fourteenth Amendment.   
      
   First, as noted above, were the children of ambassadors and other   
   foreign diplomats who, as the result of the fiction of   
   extraterritoriality, were not even considered subject to the territorial   
   juris­diction of the United States.   
      
   Second were the children of members of invad­ing armies who were born on   
   U.S. soil while it was occupied by the foreign army. But apart from   
   these two narrow exceptions, all children of foreign nationals who   
   managed to be born on U.S. soil were, in Justice Gray’s formulation,   
   citizens of the United States. Children born of parents who had been   
   offered permanent residence but were not yet citizens, and who as a   
   result had not yet renounced their allegiance to their prior sovereign,   
   would become citizens by birth on U.S. soil. This was true even if, as   
   was the case in Wong Kim Ark itself, the parents were, by treaty, unable   
   ever to become citizens.   
      
   Children of parents residing only temporarily in the United States on a   
   student or work visa would also become U.S. citizens. Children of   
   parents who had overstayed their temporary visas would like­wise become   
   U.S. citizens, even though born of parents who were now in the United   
   States ille­gally. And, perhaps most troubling from the “con­sent”   
   rationale, even children of parents who never were in the United States   
   legally would become citizens as the direct result of the illegal action   
   by their parents. This would be true even if the par­ents were nationals   
   of a regime at war with the United States and even if the parents were   
   here to commit acts of sabotage against the United States, at least as   
   long as the sabotage did not actually involve occupying a portion of the   
   territory of the United States. The notion that the framers of the   
   Fourteenth Amendment, when seeking to guaran­tee the right of   
   citizenship to former slaves, also sought to guarantee citizenship to   
   the children of enemies of the United States who were in its terri­tory   
   illegally is simply too absurd to be a credible interpretation of the   
   Citizenship Clause.   
      
   Although hard to sustain under the broad lan­guage used by Justice Gray,   
   the actual holding of Wong Kim Ark is actually much more narrow, and the   
   case need not be read so expansively as to pro­duce such absurd results.   
   Because of the Chinese Exclusion Acts,[25] Wong Kim Ark’s parents were   
   ineligible for citizenship even if they had renounced their Chinese   
   citizenship and subjected themselves to the exclusive jurisdiction of   
   the United States. As such, Wong Kim Ark arguably would have been   
   entitled to citizenship because, like his parents, he would in fact have   
   been “sub­ject to the jurisdiction” of the United States in the   
   complete, allegiance-obliging sense intended by the phrase.[26]   
      
   This is not to say that Congress could not, pur­suant to its   
   naturalization power, choose to grant citizenship to the children of   
   foreign nationals.[27] But thus far it has not done so. Instead, the   
   lan­guage of the current naturalization statute simply tracks the   
   minimum constitutional guarantee— anyone “born in the United States, and   
   subject to the jurisdiction thereof,” is a citizen.[28] Indeed, Congress   
   has by its own actions with respect to Native Americans—both before and   
   after this Court’s decision in Wong Kim Ark—rejected the claim that the   
   Citizenship Clause itself confers citi­zenship merely by accident of   
   birth.[29] None of these citizenship acts would have been   
   neces­sary—indeed, all would have been redundant— under the expansive   
   view of the Citizenship Clause propounded by Justice Gray.   
      
   A Citizenship of Consent, not Feudal Allegiance   
      
   Once one considers the full import of Justice Gray’s language in Wong   
   Kim Ark, it becomes clear that his proposition is simply incompatible   
   not only with the text of the Citizenship Clause, but with the political   
   theory of the American Found­ing as well.   
      
   At its core, as articulated by Thomas Jefferson in the Declaration of   
   Independence, that political theory posits the following: Governments   
   are insti­tuted among particular peoples, comprised of nat­urally equal   
   human beings, to secure for themselves certain unalienable rights. Such   
   gov­ernments, in order to be legitimate, must be grounded in the consent   
   of the governed—a nec­essary corollary to the self-evident proposition   
   of equality.[30] This consent must be present, either explicitly or   
   tacitly, not just in the formation of the government, but also in the   
   ongoing decision whether to embrace others within the social com­pact of   
   the particular people. As formulated in the Massachusetts Bill of Rights   
   of 1780:   
      
   The end of the institution, maintenance, and administration of   
   government, is to secure the existence of the body-politic, to protect   
   it, and to furnish the individuals who compose it with the power of   
   enjoying in safety and tranquility their natural rights…. The   
   body-politic is formed by a voluntary association of individuals; it is   
   a social compact by which the whole people covenants with each citizen   
   and each citizen with the whole people that all shall be governed by   
   certain laws for the common good.[31]   
      
   Thus, as Professor Edward Erler has noted:   
      
   [T]he social contract requires reciprocal consent. Not only must the   
   individual consent to be governed, but he must also be accepted by the   
   community as a whole. If all persons born within the geographical limits   
   of the United States are to be counted citizens—even those whose parents   
   are in the United States illegally— then this would be tantamount to the   
   conferral of citizenship without the consent of “the whole people.”[32]   
      
   In other words, birthright citizenship is contrary to the principle of   
   consent that is one of the bed­rock principles of the American regime.   
      
   Such a claim of birthright citizenship traces its roots not to the   
   republicanism of the American Founding, grounded as it was in the   
   consent of the governed, but to the feudalism of medieval England,   
   grounded in the notion that a subject owed perpetual allegiance and   
   fealty to his sover­eign.[33] A necessary corollary of the feudal notion   
   of citizenship was the ban on expatriation, embraced by England and   
   described by Blackstone as follows:   
      
   Natural allegiance is such as is due from all men born within the king’s   
   dominions immediately upon their birth. For, immediately upon their   
   birth, they are under the king’s protection…. Natural allegiance is   
   therefore a debt of gratitude; which cannot be forfeited, canceled, or   
   altered, by any change of time, place, or circumstance…. For it is a   
   principle of universal law, that the natural-born subject of one prince   
   cannot by any act of his own, no, not by swearing allegiance to another,   
   put off or discharge his natural allegiance to the former: for this   
   natural allegiance was intrinsic, and primitive, and antecedent to the   
   other, and cannot be divested without the concurrence act of that prince   
   to whom it was first due.[34]   
      
   Thus, when Congress passed as a companion to the Fourteenth Amendment   
      
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