[whimsicalism]

Let's remind ourselves of the text of the 14th amendment:

“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.”

> It has been proposed that the US citizenship model was always like the Swiss model - you could only be a citizen if you were born of at least 1 citizen (naturalized or otherwise). For reasons I'm not clear, this has not been strictly enforced for some time.

I think any clear reading of the 14th amendment shows that you are incorrect.

[IG_Semmelweiss]

IANAL, but interpretation of:

"and subject to the jurisdiction thereof"

seems critical to make a determination on whether you are correct or not.

Take the act of a random french spy who goes to the UK for the purpose of defecting, without express permission of either government. Does that make him a subject to the UK crown? I think the historical outcome of such situation would be crystal-clear.

[vessenes]

SCOTUS ruled on this over a hundred years ago, in the case of a child born in the US of Chinese immigrants who went to China in his 30s, and was denied re-entry. Denial theory: Chinese citizens are subject to the Chinese emperor annd therefore aren’t subject to the jurisdiction of the US.

SCOTUS response: “LOL”. 6-2 (1 abstention) in favor of him being a citizen. The majority assent lays out pretty clearly that the jurisdiction language was to except diplomats and Native American tribespeople who had different treaties and status.

The Wong Kim Ark ruling is super, super, super clear that it would only be in EXTRAORDINARY circumstances that the 14th wouldn’t apply. For instance, two people in an invasion force sent by King George to take back the colonies have a baby with each other on US soil: probably not a citizen. Even then, if those two were in prison and had the baby: probably a citizen. Baby of two diplomats: not a citizen (called out in the ruling).

The dissent says: The 14th was really about Dredd Scott, and giving former slaves born in US soil full citizenship rights, and therefore “jurisdiction” is obviously only for naturalized citizens: Mr. Ark didn’t seek citizenship and therefore didn’t have it, since he wasn’t a former slave or child of a former slave, the 14th doesn’t apply.

The current attempt to reframe the 14th while including the Ark ruling relies on the very novel idea that anyone in the country without permission is not “subject to the jurisdiction of the US”. ICE’s actions clearly bely that take. It’s not a tenable angle to try and get rid of birthright citizenship, full stop.

[IG_Semmelweiss]

This is a good example and it puts the current de facto interpretation of the law very friendly towards birthright citizenship.

However, as you well said, this is the interpretation of the amendment at the time based on that particular case.

The SCOTUS ruling is based the understanding of the 14th amendment for that particular case. Laws are re-interpreted based on originalist or expansionist understanding of the law at the time is was written. It could very well be that this was one of the latter examples, and that there is ample evidence of it that simply didn't make it to Ark. A legal scholar will need to do the work to really understand what was the intent of the 14th as it was written, and present its case to SCOTUS to persevere. The administration could really be attempting to reframe without any legal basis, and if so, the EO won't survive, and we will be able to move on with a full understanding of the 14th.

[vessenes]

I hear that, and this is no doubt headed to the Roberts court. That said, this would to my eyes need to be interpreted as an expansionist "new interpretation" decision by all counts if we're getting rid of birthright citizenship; caselaw, US practice before and after the Ark case (for 100 years!) and the UK Common Law basis of US law (done away with in the 80s by a new law: see https://openyls.law.yale.edu/bitstream/handle/20.500.13051/7... for much, much more detail), which had hundreds of years of birthright citizenship all point pretty strongly at this being unilaterally understood a certain way here in the US so far.

That Yale article points out European countries have more traditionally relied on "jus sanguinis" -- parentage-based nationality, where UK, US and LatAm countries are mostly "jus soli" with "sanguinis" additions for, say, kids born in foreign countries to nationals.

Anyway - it would be pretty surprising to hear that this is not a reframe. I'll be reading the case with interest.

[mrj]

That's been a fringe legal theory for a while. But historically it's been understood that even if in the country illegally, somebody driving too fast is going to get a ticket, right? If they commit a crime they are thrown in jail. Clearly they are subject to jurisdiction.

[IG_Semmelweiss]

but they could very well be deported 1st. There's nothing stopping that, in fact.

The only reason they go to jail is because de-facto that is is fair for the victimm in that he/she gets "Restitution" in the form of jail time for the non-citizen, and presumably, the foreign country may even be able to challenge that.

The dejure interpretation may be he should be banished, although that would be unfair to the victim.

[whimsicalism]

How could they deport them? They're not subject to the jurisdiction of the authorities, right?

[whimsicalism]

Are only people with at least 1 naturalized citizen parent the only people subject to the jurisdiction of the United States?

[IG_Semmelweiss]

This is switching the topic.

The 14th amendment discusses who is a citizen. It does not capture who is a subject to US jurisdictions, or not. That part is open to interpretation , likely because it is based in common law.

[whimsicalism]

e: You've now edited your comment to be consistent with what you originally said. Before edit, the commenter said that the jurisdiction clause meant that at least one parent needed to be at least a legal visitor to the US.

Not only is that not in the text of the 14th, it's different from your original proposal two comments ago. If you really want to do this fine-grained reading to try to support your point, you might notice that 1. the subject to the jurisdiction clause is the baby, not the parents, 2. breaking a law does not mean you are not subject to the jurisdiction of the state you reside in.

[jf]

Please note that the 14th Amendment does not “discuss” who is a citizen, a better word would be “establishes” or “determines” - the “discussion” happened during the drafting and ratification processes and all of those records are available for you to read. Post ratification, the court system uses those discussions as part of their decisions on issues related to clarification of questions that arose after ratification. Those court decisions are also available for you to read.

[jf]

Your example doesn’t make sense because the 14th amendment only applies to the United States and not the United Kingdom.

[cyberax]

> "and subject to the jurisdiction thereof"

It means that the parents must be immune from the US government actions. For example, if they are diplomats and literally can't be arrested even if they commit a murder in the plain sight.