families by the modern welfare state, the total incentive effectnof birthright citizenship may well become significant. In additionnto anecdotal evidence that many aliens do cross thenborder illegally to assure United States citizenship for theirnsoon-to-be-born children, a recent study illuminates two featuresnof this phenomenon. First, the number of births in thenUnited States to illegal alien parents is not trivial; a conservativenestimate places the number as in excess of seventy-fiventhousand each year. Second, these births—and the publicncosts that they entail—are disproportionately concentrated inna relatively few urban areas.nCongress has the power to respond to this infringement ofneonsensualism if it so desires. Although the Citizenship Clausenof the Fourteenth Amendment has been assumed to guaranteenbirthright citizenship to such children ex propria vigore, thenquestion of the citizenship status of the native-born children ofnillegal aliens never arose during its adoption for the simplenreason that no illegal aliens existed at that time, or indeed fornsome time thereafter.nThe debates also establish that the framers of the CitizenshipnClause had no intention of establishing a universal rule ofnbirthright citizenship. To be sure, they intended to do morenthan simply extend citizenship to native-born blacks by overrulingnthe reasoning and result in Dred Scott. But they also intended,nthrough the clause’s jurisdiction requirement, to limitnthe scope of birthright citizenship. The essential limitingnprinciple, discernible from the debates (especially those concernednwith the citizenship status of Native Americans) wasnconsensualist in nature. Citizenship, as qualified by this principle,nwas not satisfied by mere birth on the soil or by nakedngovernmental power or legal jurisdiction over the individual.nCitizenship required in addition the existence of conditions indicatingnmutual consent to political membership.nOur interpretation certainly does not imply that children ofnillegal aliens are not entitled to any constitutional protection.nIndeed, those children (and perhaps their parents as well) maynhave legitimate moral or humanitarian claims upon Americannsociety. We may be said to have incurred moral obligationsnto illegal aliens by encouraging them to migrate here,nby enriching ourselves through their labor, by absorbing themninto our communities, by inviting legitimate expectations ofnhumane treatment, and by other behavior. But even if moralnobligations to illegal aliens exist and are compelling, they by nonmeans imply birthright entitlement to American citizenship.nAgain, that does not mean that policy toward illegal aliens isnmorally unconstrained. For children who have already beennborn here of illegal alien parents, for example, a retroactivenchange in the law depriving them of their citizenship statusnwould violate important expectation and reliance interestsnand create great confusion and uncertainty.nBut these concessions to prudence, fairness, and humanitarianismnshould not be taken to deny to the American communitynthe essence of a consensual political identity—thenpower and obligation to seek to define its own boundaries andnenforce them. If Congress should conclude that the prospec­n24/CHRONICLESnnntive denial of birthright citizenship to the children of illegalnaliens would be a valuable adjunct of such national self-definition,nthe Constitution should not be interpreted in a waynthat impedes that effort. Citizenship status is not necessary tonafford illegal aliens and their children at least minimal legalnprotection and public benefits. They do and should possessncertain rights by reason of their presence within the UnitednStates. Protection against any risk of statelessness can be assurednby statute. Thus, the Constitution need riot and shouldnnot be woodenly interpreted either to guarantee their childrenncitizenship or to cast them into outer darkness.nIn the end, the question of birthright citizenship for thenchildren of illegal and nonimmigrant aliens should be resolvednin the light of broader ideals of constitutional meaning, socialnmorality, and political community. These ideas militatenagainst constitutionally ascribed birthright citizenship in thesencircumstances. Beyond the issue of the Citizenship Clause’snintent, it is morally questionable to reward lawbreaking bynconferring the valued status of citizenship, and it is even morenquestionable to plant that guarantee in the Constitution. Thisnis true even though the lawbreakers are often individuals whosenambition, resourcefulness, and family values most Americansnwould admire. Those characteristics might lead Congress tonconfer citizenship broadly and easily, but as a matter of informednchoice, not constitutional inadvertence.nThree basic steps are required to achieve a law of citizenshipnat birth that is theoretically consistent, practical fornaddressing current policy problems, and consonant with thennation’s fundamental claim that its government rests on thenconsent of the governed. The first step requires a reinterpretationnof the Citizenship Clause of the Fourteenth Amendment.nIts guarantee of citizenship to those born “subject tonthe jurisdiction” of the United States should be read to embodynthe principle of consensual membership, and therefore tonrefer only to children of those legally admitted to permanentnresidence in the American community—that is, citizens andnlegal resident aliens.nOn our consensualist reading, those born “subject to thenjurisdiction” of the United States would be citizens at birthnprovisionally, in the sense that they would have the opportunitynupon attaining majority to renounce that citizenship if they sondesired. At no time, however, would they be vulnerable tonany denial of consent to their membership on the part of thenstate. Native-born children of legal resident aliens would alsonbe provisional citizens at birth and during their minority andnwould enjoy the same right to expatriation. Citizenship atnbirth would not be guaranteed to the native-born children ofnthose persons—illegal aliens and “nonimmigrant” aliens—nwho have never received the nation’s consent to their permanentnresidence. Even the citizenship law of the United Kingdom,nfor whose antecedents our common-law citizenship wasnoriginally derived, and which continues to adhere to thenbirthright citizenship principle, does not extend it to the native-bornnchildren of either illegal aliens or temporary residentnaliens. The same is true of other Western Europeanncountries. Since the proposed doctrine would require a reinterpretationnof the Citizenship Clause, the change should benmade prospectively, assuring citizenship to those born in thenUnited States while the current understanding has been inneffect.nCongress, which bears the ultimate responsibility for fash-n