Originally published at: Trump Allies’ Idea Of Citizenship Would Take US Back To The Nineteenth Century - TPM – Talking Points Memo
This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at The Conversation. As President-elect Donald J. Trump prepares to implement sweeping policy changes affecting American immigration and immigrants, one of the issues under scrutiny by his allies appears to be birthright citizenship — the declaration in the 14th…
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This shouldn’t even be a question as the Constitution is clear:
Nothing about parentage in that phrase, if you are born in the US and subject to US law, then you are a citizen. Full stop.
Anything else is extra-Constitutional reasoning.
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I guess American fascists are gonna zero in on the word “person”?
Trump got elected calling immigrants “animals”.
And there’s historical precedent for their fellow brownshirts (elsewhere) litigating minorities as less than human.
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Boy, did I just get a bold idea for a very expansive, pre-emptive Biden pardon …
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From what I understand, they have instead focused on the “subject to the jurisdiction thereof” part:
However, Reason Magazine (of all places) has shown this is a faulty interpretation of the relevant Constitutional history:
The citizenship clause’s text begins, as discussed in my prior post, with the requirement of birth “in the United States.” It then adds the further requirement of birth “subject to the jurisdiction” of the United States. So our inquiry is framed as: in the nineteenth century language and context in which the clause was written, who was in the United States yet not subject to its jurisdiction?
As with the first part of the clause, Chief Justice Marshall provides a good beginning. In Schooner Exchange v. McFaddon (1812), writing for the Court, Marshall discussed “a nation’s jurisdiction,” which he equated with national sovereign authority. Generally, Marshall said, a nation had jurisdiction over all people and things within its territory. But there were three exceptions, which he listed: foreign sovereigns themselves, foreign ambassadors and foreign armies. These exception apart, though, Marshall emphasized that aliens within sovereign territory were otherwise “amenable to the jurisdiction” of the United States (meaning governed by U.S. law).
Henry Wheaton, the leading nineteenth-century American writer on international law, described national jurisdiction in a similar way, using the phrase “subject to the jurisdiction.” Ordinarily, Wheaton wrote in Elements of International Law (1836), a nation had “jurisdiction,” meaning “sovereign power of municipal legislation,” within its territory. But, he continued, foreign ambassadors and their households had diplomatic immunity under international law and so were “excluded from the local jurisdiction.” Immunity thus was an exception from the territorial jurisdiction to which they, as aliens within sovereign territory, would otherwise be subject.
There was another category of people described in the nineteenth century as in the United States but not subject to U.S. jurisdiction: tribal Native Americans. This sounds odd to modern ears because the U.S. claimed ultimate authority over the tribes. But the U.S. commonly (at the time) entered into treaties guaranteeing tribes authority over internal matters, including governance of tribal members. Some treaties expressly referred to tribal “jurisdiction.” And key nineteenth-century writers such as James Kent described the situation (in Goodell v. Jackson, 1823): “Though born within our territorial limits, the Indians are considered as born under the jurisdiction of their tribes.”
Also consistent with the idea of jurisdiction, the U.S.-born children of aliens (other than diplomats and armies) were considered U.S. citizens. In McCreery’s Lessee v. Somerville (1824), for example, the Supreme Court (per Justice Story) treated as uncontroversial the U.S. citizenship of the U.S.-born child of Irish alien parents. In Lynch v. Clarke (1844), a New York court directly held that U.S.-born children of alien temporary visitors were U.S. citizens.
Thus when the Fourteenth Amendment’s drafters picked the phrase “subject to the jurisdiction,” it had an established meaning that was already closely connected to citizenship. The first part of the citizenship clause (“born in the United States”) adopted the territorial principle of jus soli. The second part embraced the longstanding exclusions from the jus soli principle: people in U.S. territory but nonetheless not under U.S. sovereign authority, namely diplomats, foreign armies and tribal Native Americans, who had not traditionally been born citizens.
Both the text and historical meaning of these terms favor birthright citizenship for children of undocumented immigrants. The Reason article even highlights that the Senate debate on the Amendment (contrary to Heritages portrayal) raised the possibly of U.S.-born children of Chinese aliens getting citizenship, which the relevant Senators (including the sponsor Senator Trumbull) agreed was correct.
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I imagine the only people born in the US borders who wouldn’t qualify for citizenship are children born of diplomats since they aren’t subject to US jurisdiction.
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I think the exclusions are basically still the ones Chief Justice Marshall described in 1812:
foreign sovereigns themselves, foreign ambassadors and foreign armies.
Of those three, children of foreign diplomats are the only ones likely to occur in practice.
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Justice Thomas is licking his chops, eagerly awaiting the chance to invalidate his own citizenship and marriage in the same term.
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Easier than getting a divorce from MAGA true believer, Ginny.
“Sorry honey, the Constitutional says we can’t stay married any longer.” 
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Funny that Trump has a problem with birthright citizenship.
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Some people will do anything to get out of a marriage. Even one who’s a good travel buddy… on someone else’s millions of course.
Guess Thomas just wants to cruise alone in his golden years.
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I hate living in this fucking timeline.
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Musk and Melania are what?
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I know it is neither wise or right to judge somebody on their looks alone. But honestly, if I knew nothing about Miller, he still would have sent up red flags. This is a man who bleeds malice and covetousness.
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So how far down the family tree are they wanting to go back on revoking birthright citizenship? Back a generation, two generations, three generations?
These white nationalists seem hellbent on maintaining the white race is how it looks like here from the cheap seats.
My now passed away mother told me that her mother dealt with the same fear tactics over a hundred years ago in the 1920s.
What old is new again over and over and over….
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He is the Devil’s minion.
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How about the Russians who go to Miami to have birthright babies? Are they included in this or is their whiteness an exception?
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the declaration in the 14th Amendment to the Constitution that anyone born on U.S. soil is a U.S. citizen
So Trump wants to make it by default that the status of every newborn is…
…an illegal?
I mean, the baby’s status cannot be determined by the State until the State checks out the status of the parents. Do I misunderstand?
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I don’t see any reason to doubt that the current SCOTUS will reject birthright citizenship, on the most obviously cynical and specious of grounds – just as they did in inventing presidential immunity.
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Somebody has a shiny head.
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