This is the legal opinion of a Secretary of State, not a judicial decision.
If you read the context, he is also basing his opinion primarily on “international law,” not on the US Constitution. Which I thought conservatives objected to.
This was also around the same period when US women (but not men) who married a foreigner automatically lost their citizenship per laws passed by Congress. Do you think that was, or should be, constitutional?
More than one Secretary of State has made that same determination.
International law is cited because such a birth is an international occurrence; a birth in a country which applies jus soli citizenship law to those born within its jurisdiction who have no foreign allegiance, to an alien father whose country asserts worldwide jus sanguinis citizenship law.
Such an occurrence is not a domestic event, it’s an international event. That’s why the cases are discussed in A Digest of the International Law of the United States.
There is nothing in the Constitution which states that one born in the U.S. subject to a foreign power is a U.S. citizen at birth. In fact, the very reason for the Secretaries of State determining that such persons were NOT citizens by birth in the U.S. is exactly BECAUSE they were at birth “SUBJECT TO A FOREIGN POWER” and “NOT SUBJECT TO THE JURISDICTION OF THE UNITED STATES” within the meaning of complete jurisdiction intended by Trumbull and the Senate Judiciary Committee when the 14th Amendment was introduced.
Senate Judiciary Committee Chairman Trumbull: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”
http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14
Trumbull’s role in drafting and introducing the Civil Rights Act of 1866 and the 13th and 14th Amendments:
http://www.judiciary.senate.gov/about/history/