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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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