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I read through the original Congressional debates about the ratification of the amendment and found them pretty interesting.
A key line is this one by Senator Howard who worked on the langauge of the bill and said:
Unfortunately, it did not remove all doubt because there is a question of whether there is an implicit "or" between "aliens" and "who belong to the families of ambassadors" or if the ", aliens, " is parenthetical and the 'who belong" is a modifier to foreigners/aliens.
Reading the rest of the debates does not perfectly resolve the issue either. One reason reading the debates does not perfectly resolve the issue is that they simply were not dealing with a problem of temporary visitors trying to gain a foothold in the country by having children. Back then, almost anyone rich enough to be an international tourist would have had no problem becoming a permanent US resident anyways. The wording of the Amendment was designed to unambiguously include freed slaves, but exclude unconquered American Indian tribes. That's why they chose the language they did. They were not thinking about anchor babies. One of the Senators opposed the amendment because it would include Gypsies and Chinese, and the other Senator replied that yes, it would, but that is ok, there are not enough of them to be a big deal. But in the case of the gypsies and Chinese, we are talking about groups that were domiciled in the U.S., and so that does not apply to temporary migrants, so that doesn't really help us.
Reading "subject to the jurisdiction" of the United States as "potentially subject to prosecution in American courts according to American laws" does not make sense, because that is literally everyone in the world. Even diplomats are subject to American law, the U.S. just has a policy of expulsion rather than prosecution for crimes that are not violent felonies.
I think the best way to understand "subject to the jurisdiction of the United States", and the one most consistent with the Congressional debate, is that the person is an American subject. They are loyal to the American government, not a foreign government or sovereign tribal government. In the absence of any current legal definition, here are some to heuristics to judge if someone is an American subject: If they commit a medium severity crime, will they be deported to their home country? If a war came and there was a draft, they would be subject to the U.S. draft and not another country's draft? If they fought for the enemy and caught, they would be hung as a traitor instead of considered to be a prisoner of war to be exchanged? If they were in a third country and got in trouble or lost a passport, they would contact the American consulate, and the American State Department would help him out because the person was "one of theirs."? If they are working abroad, do they still owe an income tax return to the United States government?
If I was rewriting American immigration law, I would have only four categories:
The children born in the U.S.A. of American nationals would be citizens automatically. Children born to parents with conditional residency visas I would make citizens automatically if their parents become American nationals, otherwise they have the visa status of their parents.
From a 'what does the text literally say' perspective, you're ignoring that they picked the word "jurisdiction", which would literally mean "subject to the laws of". From an originalist perspective, you're ignoring that the word was used in law to mean that at the time too! I like this thread: https://x.com/dilanesper/status/1866167064282747388
... what? No, the whole point of that clause was to exclude people like diplomats, and it has been held to do so.
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I'm not sure if one can make a principled distinction between the degree to which gypsies and Chinese in 1866 were domiciled in the US and the degree to which the median illegal immigrant (and especially the median illegal immigrant's anchor baby!) is domiciled in the US now. I would assume most of them are not so affluent that they would maintain property or a rental apartment in their country of origin before they make the trek...? If it's on the level of "family would be available to house them in their country of origin", this surely applies to most Chinese as well, and gypsies, on the other hand, are famously transient.
As I understand it, in the 1860s there wasn't really a concept of an illegal immigrant. A person did not need permission to reside in the United States. So all the gypsies and Chinese who had established residency in the U.S. would be the modern equivalent of either a green card holder or an American national.
It's also usually not appreciated that the language "subject to the jurisdiction" seems to apply to the child, not the parent. I actually think it would be reasonable to rule that if the child is born in the U.S., to alien parents and the alien parents and child immediately move back to their homeland while the child is a minor and the child is a citizen of the homeland, obviously the child is not a U.S. subject and do not get citizenship. However, if the parents illegally move to the United States and bear a child and the child never establishes any connection or loyalty to their homeland, once they reach the age of majority the child should be considered a citizen. This would be consistent with the Wong Kim Ark ruling which is that the child born in America and who is a permanent resident of America and primarily loyally to America is a citizen, even if they technically are claimed as citizen by another country by right of blood.
Wong did have connections and loyalties to his homeland though. He had a Chinese wife and children who were living in China at the time.
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Ive thought about that, but it also seems that whats relevant is the subjection at the time of birth. Because if its not, then what? Constant updates, and your citizenship pops in and out of existence depending on subjection? And at birth it would, barring strange circumstances, be identical to the parents.
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Both of these are typically passed to the child. That's why you see Mexican flags waving in the US.
Connection can also include language, so I'd simply assert that anyone speaking a foreign language has de facto connection to that foreign nation.
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And most illegals intend to settle down here and raise their kids in the USA. What it sounds like Trump can relatively painlessly crack down on is birth tourism.
It's not about their intention. Constitutionally, it would be fine to say that as minors the children obviously are under the same legal jurisdiction of the parents, and so the child should be deported with the parents and would be a citizen of their home country and not an American subject and not a citizen. Only if they slip through the cracks and make it to age of majority without ever establishing themselves as a subject of a foreign country, can I see the case that the child should be then considered an American citizen.
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