This debate is inspiring some to even, Gulp!, read the Constitution, instead of just blindly professing respect for it, while really not knowing what it says.
The current debate surrounds the question and status of “anchor babies” [a term found by some to be offensive, but it is really neutrally descriptive], those born in the United States by people rushing across the border, or in from other countries, to have babies on our soil; are they citizens?
The irony of some Republicans, and regrettably Donald Trump, saying the Constitution does not support “birthright citizenship” [Rush Limbaugh, incredibly, said last week that the subject is not even discussed in the 14th Amendment!/?] is that it is the commencing provision of the 14th Amendment, which the Republicans eagerly supported, against opposition of the Democrats, who were not that opposed to slavery nor in favor of outlawing it! Now, the Democrats are supporting the provision, and some of the Republicans are opposed to it.
What has become labeled “birthright citizenship” is expressly announced in the first sentence of the first clause of the 14th Amendment [Rush!], which reads “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….” That constitutionalizes the common law doctrine of jus soli, “law of the soil,” meaning geography of one's birth defines one's citizenship.
There wasn't much disagreement here with the jus soli definition of citizenship until the odious Dred Scott opinion in 1857, which announced that Black slaves were not citizens regardless of their locus of birth. We needn't plumb the depth of that outrageous opinion here – suffice it to say that it uprooted quiet understandings of citizenship, which was finally put to rest after the Civil War with the 14th Amendment. Hm…, we could label the position of some Republicans, and some faux constitutionalists, who urge that the 14th Amendment does not support birthright citizenship as “neo-Dred Scott-ism!”
And there is nothing opaque about it, even though there are some who have agendas which result in their stirring up the bottom sand to make murky what is otherwise clear.
There are two features: “born … in the United States” and “subject to the jurisdiction thereof.”
So, what of “anchor babies”? If a pregnant woman sneaks across the border or flies in from a foreign land and has a baby, what is its status? Well, the baby is obviously born in the United States, so first part of the equation is satisfied. But is he/she subject to the jurisdiction of the United States? Of course he is, and that is proven by one aspect that few realize: if ICE can seize him and his mom and put them into immigration detention, or ship them back across the border, without anyone being able to win an attack on ICE that it has no jurisdiction, then he/she has subjected himself to the jurisdiction of the United States.
Justice Field, in an early opinion [In re Look Tin Sing] announced that the exception to the “jurisdiction clause” was occasioned only by children of foreign diplomats being born here, and the birthright citizenship phenomenon would supersede Congress's power under Article 1, section 8, regarding naturalization. The exception is actually a little broader, but it won't help the xenophobes regarding anchor babies.
Later, thoughts about the jurisdiction clause invited many understandings about the fiction of extra-territoriality, which includes not only children of diplomats, but also children of people invading the United States, children of tribal Indians [at the time tribes were considered foreign sovereignties, which is why we had “treaties” with them and not regular legislation], and some tried to apply it to Chinese laborers who were here temporarily, but intended to return to China and had an allegiance to China and its emperor. That latter sound familiar? It is interesting that the big constitutional debates about citizenship are triggered by rank, rabid racism.
In 1898, 117 years ago[!], the subject was put to rest, in In re Wong Kim Ark, wherein the U.S. Supreme Court noted that a person born here who might have an allegiance to another country is still a citizen of the United States if he is under its jurisdiction, because the United States alone could consent to deny its jurisdiction within its own territorial limits, and it otherwise has jurisdiction over everyone within its territorial borders, subject to the fiction of extra-territoriality discussed above.
Along the way, there have been discussions of “allegiance” as defining “jurisdiction,” but that is a stretch by xenophobes who have not studied how the two issues arose. There was litigation in what was labeled Calvin's Case in 1608, where the question, simplified for passing note here, was whether Scotland-born Calvin had an “allegiance” to the King of England, James I, or to the King of Scotland, James VI, who were the same person!!!! If only the latter, he could not own property or bring suit in England. So, did he owe allegiance to the “body” of that same king, or to the kings as distinct sovereigns of two lands [which happened to be the same physical person!]? And there was much lawyeristic claptrap about “allegiance” vs “citizenship” there.
Do you really think that has anything to do with our debate? Sadly, Dean [former] John C. Eastman of Chapman Law School, and self-styled constitutional “scholar” Mark Levin [the darling of Hannity, Limbaugh, and the xenophobic, reactionary Right] think so, but just ponder the meaning of the words for a moment. “Allegiance” means you are loyal to another; “jurisdiction” means another has power over you. If “allegiance” and “jurisdiction” are now synonymous, as Eastman, Levin, and derivatively, Hannity, Limbaugh and other non-scholarly jingoists claim, will you now be phrasing the celebrated Flag Pledge as “I pledge jurisdiction to the Flag, of the United States of America….”? I used to have real respect for Mark Levin, and I have read most of his books, but he is totally off-base here to the point that one must doubt his scholarship in other matters.
When one's racism is so extreme that he must play games with word meanings and pretend the twist of meanings is of constitutional magnitude, we have approached the edge of the abyss. And its depths yawn back at us.
By the way, Calvin won his case, and it set the precedent that became our birthright citizenship doctrine that so many choose to trick the electorate out of understanding – the child of an alien temporarily sojourning within the physical territory of a country becomes a citizen of that country if born there.
I sincerely believe Donald Trump has been duped by Levin and Hannity and their ilk that birthright citizenship is not compelled by the Constitution and that anchor babies, under normal circumstances, have American citizenship.
That does not mean that their families get to come here. That does not necessarily mean they have a right to various benefits, etc., nor does it mean that Congress does not have some wiggle-room in that regard. It does mean that they are, under the Constitution, citizens, and no statute can change that reality, per Marbury v. Madison.