If they have crossed the borders illegally, are they more like an invading army, or people here with the consent of the government? Not that any modern court will care.
But as a matter of law, the WKA case involved parents here legally, domiciled in the USA with the permission of the government. And those were factors in the decision, since English common law did not envision anyone being permitted to stay in 1600s England without the King’s permission. WKA’s parents were also working here with the permission of the US government. They were not tourists.
But as a matter of law, the WKA case involved parents here legally, domiciled in the USA with the permission of the government. And those were factors in the decision, since English common law did not envision anyone being permitted to stay in 1600s England without the King’s permission. WKA’s parents were also working here with the permission of the US government. They were not tourists.
Please understand that the WKA ruling explicitly stipulated that parents be PERMANENTLY domiciled in the U.S. at the time of their child's birth to constitute the child's birthright citizenship.
A temporary student visa that had to be renewed every year and terminally expired in 1964 does NOT evidence a permanent domicile in the U.S. for the parent of one born in 1961.
Several different phrases have been used throughout history. “Aliens in amity.” “In obedience to the king.” “Under the protection of the king.” “Subject to the jurisdiction of.”
And the misleading “not owing allegiance to any other sovereignty,” which the birthers make much of and which was pretty quickly replaced with “subject to the jurisdiction of the United States.”
All of them were pretty much intended to mean the same thing: Legal presence, subject to the laws of the country.
I agree with you that citizenship for children of illegal aliens violates the historic principle, since the parents are not “in obedience to” or “under the protection of” our laws. They are not here legally.
And it seems to me that JCBreckenridge’s solution is a reasonable one: Deport the parents. The child can go with them, or if they desperately want the child to stay, they can find a foster home and the child can stay.
That’ll never happen, of course. But it makes sense to me.