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A few weeks ago, Trump signed an executive order attempting to end birthright citizenship; it is currently working its way through the courts. Some users here claimed that the 14th amendment "obviously" implies birthright citizenship. I disagree, but wanted to take the time for a long from explanation. First, the relevant text:
The question, now, is who is subject to jurisdiction. It cant just be everyone, because then why would they write it, and besides there are known exceptions made on this basis, notably foreign diplomats, invading armies, and (formerly) indians. Of these, I want to look at invading armies in particular. Why are they not subject to jurisdiction?
The common answer seems to be that, since they control the territory, they have the jurisdiction rather than the US. But does the US accept that it doesnt have jurisdiction? No. After the invader is expelled, they likely have the right collect the outstanding tax from the time they were unable to collect. Crimes under US law that occured during that time can also be prosecuted (though it may be an extenuating circumstance where relevant).
Now, you might try to solve this by requiring defacto jurisdiction. The problem is that you then have to explain how the defacto failure to immediately reoccupy territory is different from the defacto failure to immediately apprehend any criminal whatsoever. This sounds quite weird and not like something they would have meant, and also every illegal immigrant is a fugitive criminal, because he violates immigration law. And it also seems that the invasion exception applies to the invaders, rather than every non-citizen in the territory.
A more promising approach might be to notice that the way the government treats illegal immigrants is a lot like how it treats enemy soldiers: Where safely possible, they are caught alive. They can then be prosecuted for any crimes committed in the US (unless responsibility goes up the command chain), and are eventually sent back home (when there is no danger that this will help the enemy anymore). This suggests that jurisdiction applies to them in a similar way, and reasoning for an exemption is likely to transfer. Indeed, one of the simplest descriptions of an invasion is "People coming into the country that the government doesnt want to". Subjecting people to jurisdiction requires activity of the government, and it seems quite sensible that someone refused entry is also refused jurisdiction. I think thats more plausible than such a refusal requiring jurisdiction, but even if you disagree, its at least a binary choice rather than having to find some complicated new distinction.
Is this a motivated reading? While it has some complexity to it, I dont see a way to accommodate the invasion exception without that. I think this is the most plausible way to resolve that. A reading which doesnt make the invasion exception may also be reasonable, depending on judicial philosophy, but if thats what the people calling it "obvious" meant, they should indicate that theyre defending something other than the status quo. In conclusion, I think children of illegal immigrants do not necessarily have citizenship, those of temporary residents (also targeted in the EO) do.
...is what I would have written, if I didnt remember that the US actually claims universal jurisdiction for some of its laws. This doesnt make everyone a US citizen, because there is the territory requirement in the text, but it potentially outflanks the exceptions, and under my above reading all of them would be invalid. Admittedly I dont think SCOTUS will take this line seriously - theyre too practical for that, and if they just really want to keep children of illegals theres plenty of bad arguments to use that sound more normal. And actually, theres a wrinkle in the wrinkle, because one of the laws with universal jurisdiction was passed before the 14th ammendment, and so actually maybe you should make the traditional exceptions work even under universal jurisdiction (depending on judicial philosophy). I think the universal reading of that law is bullshit, but it has precedent.
EDIT: Since noone seems to take into account the last paragraph: My final conclusion is that all the exceptions are gone.
Being a subject of a state is different from being subject to its laws. The purpose of the 14th was to make it clear that former slaves were citizens. In this context "subject to the jurisdiction thereof" means something more like "a subject of the government thereof", in the same way one might be a subject of one's King. It expresses a subject-sovereign relationship.
Jurisdiction is a word, though. It means - from merrian-webster - "the power, right, or authority to interpret and apply the law; a matter that falls within the court's jurisdiction". From wiki - "the legal term for the legal authority granted to a legal entity to enact justice". Where did you get the idea this meant more like "subject of the government", when they picked a term that specifically refers to being subject to its laws?
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And what concrete test can we apply to identify such subjects, which would tell us whether and which immigrants are subjects?
The 14th just says you can't have people who are subjects but not citizens. If you want to make someone a subject then they're a citizen.
A concrete test sounds like the kind of thing for which a law is required. We have some of those, describing the process through which a non-citizen can become naturalized as a citizen. It seems obvious to me that an immigrant, legal or otherwise, is not a subject of the U.S. until they are granted that status through the law. But this is the whole debate. To other people it will seem obvious that someone is a subject unless the law explicitly says otherwise.
The way people immigrate has changed over the last two hundred years, and the 14th Amendment wasn't written to disambiguate modern questions. Congress could answer them if it dared. In the absence of legislation, it seems reasonable for the President to direct the government using his interpretation of the amendment.
Can a law limit the constitution? It seems like if the congress wishes to act, they need to pass a constitutional amendment specifically to supersede the 14th.
I'm not well-versed in the legal aspects, but I'm skeptical that congress can pass laws that effectively tell the courts how the constitution should be interpreted. For example, I don't think the congress can just pass a law clarifying the second amendment should be read as the people can only bear arms as members of a well-regulated militia. Like-wise, I don't think the courts would like it very much if congress passes a law clarifying "subject to the jurisdiction thereof" means "a subject of United States" and then go on defining what that is.
Separating is from ought, I think it clearly can. Libel laws inform us of where the limits on speech are. Arms rights are restricted in many ways. Governments routinely subject people to searches without warrants (whether they're reasonable is disputed, of course).
I don't even think that's unreasonable - I am under the impression that something as broad and simple as "freedom of speech" is not intended to be so literal as to mean that there isn't any speech, ever that can be abrogated by the government. Maximal literalism would suggest that even a simple noise ordinance is unconstitutional.
Put another way, I think of the Constitution as a set of articulated principles that must be upheld, but statute as working to define how those principles work in practice. When the two collide, someone must make a judgment on the matter. As cynical as I can be about law and judges, I don't actually know of a better way to handle this.
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I think you can define terms. The idea of who is “subject to the jurisdiction” of the state is at least somewhat ambiguous. And as such saying that if you would be prosecuted by civil courts if you broke the law, for example, as a prerequisite for being considered a subject of the USA seems reasonable as a law.
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