Damon Root on Birthright Citizenship
Michael Ramsey
At Reason, Damon Root: Trump v. the Constitution (defending a broad view of birthright citizenship). From the core of the argument:
... As Sen. Howard explained to the Senate back in 1866, the Citizenship Clause "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
Notice that Howard specified two types of aliens whose U.S.-born children would not qualify for birthright citizenship, "ambassadors" and "foreign ministers." What makes ambassadors and foreign ministers different from other aliens residing on U.S. soil? Simple: Ambassadors and foreign ministers have diplomatic immunity and are therefore not "subject to the jurisdiction" of the United States. Instead they remain subject to the jurisdiction of their home governments.
By contrast, "every other class" of aliens, including permanent resident aliens, temporary resident aliens, and illegal aliens, is subject to U.S. jurisdiction, which is another way of saying that those aliens must obey U.S. law or else face punishment in the U.S. legal system. Thus, according to Sen. Howard, the vast majority of U.S.-born children qualify for automatic birthright citizenship. The only exceptions are the U.S.-born children of diplomats, foreign ministers, and, we might add, invading foreign troops, who are subject to the laws of war, not to the laws of the particular nations that they're fighting.
...
This understanding of the Citizenship Clause is amply supported by the debates surrounding the passage and ratification of the 14th Amendment. For example, the first senator to rise in opposition to Howard's citizenship proposal was Edgar Cowan of Pennsylvania, a conservative Republican with ties to President Andrew Johnson. "Is the child of a Gypsy born in Pennsylvania a citizen?" Cowan fretted. "Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?"
Cowan's concerns were promptly addressed by Republican Sen. John Conness of California. "We are entirely ready to accept the provision proposed in this constitutional amendment," Conness responded, "that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law." Even the children of unpopular immigrants, Conness made clear, including the Chinese and the Gypsies, "shall be citizens."
In short, both the supporters and the opponents of the Citizenship Clause understood it to secure birthright citizenship to all but an extremely narrow group of U.S.-born children. The two sides only disagreed about whether this broad grant of birthright citizenship was a good idea to begin with. The original meaning of the Citizenship Clause went unchallenged.
I basically agree, although I less heavily on the drafting debates and more on the Amendment's language itself. But I think this discussion captures the only plausible meaning of "subject to the jurisdiction" of the United States.