Originalism and Birthright Citizenship (Yet Again)Michael Ramsey

At PJ Media, Athena Thorne: DeSantis and Trump Both Vow to End Birthright Citizenship. Can They Do That? (via Instapundit).  Quoting a DeSantis announcement from Monday:

We will take action to end the idea that the children of illegal aliens are entitled to birthright citizenship if they are born in the United States. Dangling the prize of citizenship to the future offspring of illegal immigrants is a major driver of illegal migration. It is also inconsistent with the original understanding of 14th Amendment, and we will force the courts and Congress to finally address this failed policy.

The article continues:

Proponents of handing out U.S. citizenship to everyone born on American soil, no matter the circumstances, point to the first sentence of the 14th Amendment as their justification. It reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” They gloss over the phrase, “and subject to the jurisdiction thereof.”

“Oh,” they say, “because the baby is in the U.S., he is subject to U.S. jurisdiction — the baby needs to follow the law like anyone else, foreign or citizen.” Thus, by virtue of existing on U.S. soil, the baby automatically fulfills the requirements for citizenship.

Except, then, why did the framers insert the phrase in the first place? Why not just say, “You’re born here, you’re a citizen”?

As it happens, I have an answer to that question (from my article Originalism and Birthright Citizenship, pp. 441-451). The Fourteenth Amendment's "subject to the jurisdiction" language preserved two prior exceptions to the nineteenth-century common law of citizenship based on place of birth (jus soli).  First, it was a longstanding rule that children of foreign diplomats, even if born in the U.S., were not U.S. citizens. The "subject to the jurisdiction" requirement maintained this rule because, under international law, diplomats were immune from prosecution in the country to which they were posted to protect them from retaliation and harassment.  The Amendment's drafters specifically discussed the jurisdiction requirement as adopted to exclude the children of diplomats.

Second, the"subject to the jurisdiction" requirement maintained the prior rule that Native Americans living under tribal authority were not U.S. citizens, even though born in the United States. Again, the Amendment's drafters specifically discussed this consequence of the jurisdiction requirement.  Their understanding was that tribal Native Americans were not subject to U.S. jurisdiction, either because the U.S. had relinquished it by treaty, or (as to tribes in the unsettled West) the U.S. had no practical enforcement power.  (The citizenship status of Native Americans was later changed by statute.)

In contrast, pre-Amendment nineteenth-century cases recognized that temporary visitors, though retaining their allegiance to a foreign sovereign, nonetheless were subject to the jurisdiction of the United States while present in the United States.  Chief Justice Marshall gave a good explanation distinguishing between diplomats and temporary visitors in The Schooner Exchange v. McFaddon (p. 144).  The children of temporary visitors born here were U.S. citizens (for example, in Lynch v. Clarke from 1844).  So the Amendment's "subject to the jurisdiction" requirement includes people subject to U.S. jurisdiction due to presence in the U.S., even if they are also subject to jurisdiction elsewhere.