After citing various cases that seem to allow birthright citizenship and showing that they, indeed, do not, Eastman says, “This is not to say that Congress could not, pursuant to its naturalization power, choose to grant citizenship to the children of foreign nationals. 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 its jurisdiction, is a citizen.”

Lino Graglia of the University of Texas at Austin School of Law, who also testified at the hearing, agrees: “It is difficult to imagine a more irrational and self-defeating legal system than one that makes unauthorized entry to this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry a grant of American Citizenship. How can such a legal system have come to be and be permitted to continue? The answer, its defenders will tell you, is the Constitution. Justice Robert Jackson’s famous reply to this argument was that the Constitution is not a ‘suicide pact.’”