RUTHFULLY YOURS

https://tomklingenstein.com/trump-is-right-about-birthright-citizenship/

Shortly after President Trump issued his executive order addressing birthright citizenship, the U.S. Senator from Hawaii, Mazie Hirono, posted this on her X/twitter account: “The Fourteenth Amendment is clear as day—’All persons born or naturalized in the United States…are citizens of the United States and of the State wherein they reside.’” Fascinating that she elided over the key phrase, “and subject to the jurisdiction thereof.” 

Unfortunately, my long-time friend, Professor John Yoo, recently published an article at The Civitas Institute that begins with a summary that repeats the same error. “The Fourteenth Amendment directly overruled Dred Scott by declaring that all persons born in the US were citizens.” (Emphasis added). Now I know that Professor Yoo himself does not believe that, as during our many debates on the subject of birthright citizenship, he has always acknowledged that the “subject to the jurisdiction” clause excludes the children of diplomats and occupying armies. But there it is, boldly stated in this article, without even the ellipses that Senator Hirono used in her X post.

My dispute with Professor Yoo centers on whether the “subject to the jurisdiction” clause omitted from his and Senator Hirono’s formulations exempts from the grant of automatic citizenship only the children of diplomats and occupying armies, as the old English common law of jus soli did, or whether it also exempts the children of temporary visitors (“sojourners” was the word in use at the time), such as those present in the U.S. as tourists or on temporary work or student visas, and the children of those who have entered this country illegally.     

Truth be told, because immigration (and particularly illegal immigration) was not an issue in 1868 when the Fourteenth Amendment was adopted, there is no direct debate about whether children of temporary sojourners or illegal immigrants would be citizens. But there is extensive debate over the analogous question of whether the children of Native Americans would be citizens. Those debates make clear that they would not be, because they owed, through their parents, allegiance to their semi-sovereign tribes and not to the United States. 

Children born to parents who, as merely temporary visitors (legal or illegal) to this country continue to owe allegiance to a foreign power — their home country — are by analogy even less entitled to automatic citizenship. Quite simply, they are not subject to the jurisdiction of the United States in the complete sense intended by the Fourteenth Amendment.