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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.
You and @Gillitrut and whoever else can go on with comparisons, analogies, and philosophical lucrubations involving the meaning of "under the jurisdiction thereof", but a close reading of Wong Kim Ark makes it crystal clear that there is no universe where this is necessary. When the court mentions the classes that are exempt under the jurisdiction clause, they aren't listing examples of possible exemptions; they're listing the exemptions themselves. That's it. You don't get to add to the list. The opinion makes it clear that the goal of the amendment was to confirm that freed slaves were citizens. Hence, all persons means all persons. The jurisdiction clause was only put in because the government had already recognized certain exemptions prior to the amendment's passing: Diplomats and invading armies were already excepted under common law, and uncivilized Indians were exempted based on their peculiar status in the United States.
This wouldn't be so infuriating if conservatives hadn't spent the past several decades advocating for the kind of minimalist judicial standards that we see in Wong Kim Ark. There's no equivocation, no balancing test, no attempts to shoehorn contemporary ideas into archaic concepts by broadening their scope, just clear, bright-line rules. The fact that we've since restricted immigration to the point that there are 500 different kinds of visas and some aliens who can travel without visas and a whole underclass of illegals below that doesn't change what the 14th Amendment says. It's the same logic as in Bruen, just because the world has changed doesn't mean we change the meaning of the law along with it. And that argument is much stronger here; states had been restricting firearms since the 1800s, but our definition of a natural born citizen has remained consistent until this past month.
For what very little it is worth, especially coming from an unqualified outsider, I agree with you here. It really does seem very straightforward, and the counterarguments appear a lot like motivated reasoning.
Which isn't to say that this law is good or that it should remain unchanged.
I think it seems that way to you because youre not an autistically-literal person by disposition. If you think "I know it when I see it" is a workable legal standard for constitutional rights, then the status quo is fine.
First time I have that said about me; usually it's the opposite. The problem may be that I'm not a native speaker and especially not fluent in legalese.
Well, weve had normie-ish conservatives before, and you described yourself as a low-openness rural dweller. I dont think my argument takes a lot of language. Its basically: How do you legally distinguish between an invasion and illegal immigration? Theres a continuum there, and some cases relatively far down that continuum, like primitive raiding, would be considered an invasion. See my discussion with Gillitrut for some hammering-out. Obviously today, these seem like distinct things, and saying illegal immigration is like an invasion is a controversial political point, but in a time before any immigration was illegal, is it really so implausible that they would address invasions in a way that includes that?
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