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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.
I'd read "Subject to the Jurisdiction" to mean that the person - regardless of where they happen to be living in the world at that particular instant - is morally obliged to follow the US's rules.
I'm an American so, regardless of where I live in the world, I have to file US taxes, follow some US laws, and if there was a war, I'd be subject to a draft.
Contrast this with my relationship to the English. The English Monarch could - in theory - send me a letter informing me that I'm in violation of his laws regarding proper speech and respect for the crown. The correct response would be to laugh and frame the paper; I have no moral obligation to follow English law because I'm not currently in England and - more importantly - am not a subject of the English Monarch.
It's true that the English King could - in theory - exercise some authority over me. The SAS is pretty competent, so I'm sure they could (if they wanted) find me in the US, put a bag over my head, and drag me to England. Or the King's prosecutors could grab me when I passed through Heathrow Airport on my way to some third country. But, that kind of action feels less morally legitimate than the King seeking to control one of his proper subjects.
It's also true that if I visited England on vacation, I'd become subject to British law on a temporary basis; I'd get arrested if I started stealing things or vandalizing pubs. But that authority only lasts as long as I'm on British soil. I wouldn't become a Royal Subject just because I took a vacation.
How does your interpretation jive with Wong Kim Ark? His parents were Chinese subjects, so if they were living elsewhere in the world, they wouldn't be morally obliged to follow the US's rules. If the US has a draft, they wouldn't have been called, but if the Chinese Emperor calls on their service, they're obliged to follow. Do you think the court decision was wrong, in this case? (totally an option by the way)
I'd lean towards "wrongly decided" but might do a cowardly dodge and say that in 1897 the difference between temporary and permanent immigration statuses was less well defined and that modern decisions should rely on nuances that probably didn't exist in 1897.
Using the 2024 system, I'd say that someone is subject to the jurisdiction of the US in-as-far as they've assented to giving the US a worldwide interest in their behavior. This is the case with Green Card holders, who have to pay US taxes wherever they live. But it isn't the case with more temporary visas.
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