I’m still not convinced that the “subject to jurisdiction” clause of the constitution was INTENDED to include children of illegals.
At best, the 14th is SILENT on the issue of illegals because I don’t think the drafters had them in mind when it was drafted.
Consider — In 1884, 16 years after the 14th Amendment was ratified, John Elk, who — as you may have surmised by his name — was an Indian, had to go to the Supreme Court to argue that he was an American citizen because he was born in the United States.
He lost. In Elk v. Wilkins, 112 U.S. 94, the Supreme Court ruled that the 14th Amendment DID NOT GRANT Indians citizenship.
The “main object of the opening sentence of the Fourteenth Amendment,” the court explained — and not for the first or last time — “was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes and to put it beyond doubt that all persons, white or black ... should be citizens of the United States and of the state in which they reside.”
So, if American Indians born in American soil were not considered SUBJECT TO THE JURISDICTION of the United States, therefore NOT CITIZENS *AFTER* the 14th Amendment was approved by the states, WHY SHOULD ILLEGALS?
American Indians were not made citizens until 1924. SO, what happened during those 56 years after the ratification of the 14th Amendment? Indians were not American citizens subject to the jurisdiction of this country, even if they were BORN in the United States.
It required a SPECIFIC ACT BY CONGRESS, “THE INDIAN CITIZENSHIP ACT OF 1924.” to make them citizens.
Supreme Court precedents specifically say that children of foreign diplomats, and also children of occupying forces, are not subject to the jurisdiction of the United States, and do not automatically get U.S. citizenship upon birth.
Therefore, I don’t think that it would be a huge problem for Congress to treat illegal immigrants like foreign diplomats or American Indians prior to 1924, who are NOT subject to the jurisdiction of the United States.
We treat them like any foreigner living in the United State until they LEGALLY apply to become permanent residents and become naturalized.
Tribal American Indians had treaty and sovereignty rights that were determined to preclude jurisdiction until the Indian Citizenship Act of 1924. Many non-reservation Indians had already been granted citizenship.
“The Act granted citizenship to about 125,000 of 300,000 indigenous people in the United States. To put these numbers in perspective, the U.S. population at that time was less than 125 million. The indigenous people who were not included in citizenship numbers had already become citizens by other means; entering the armed forces, giving up tribal affiliations, and assimilating into mainstream American life were the ways this was done. Citizenship had been granted in a piecemeal fashion before the Act, which was the first more inclusive method of granting Native American citizenship. The Act did not include citizens born before the effective date of the 1924 act, or outside of the United States as an indigenous person, however, and it was not until the Nationality Act of 1940 that all persons born on U.S. soil were citizens.”— Wikipedia
Ending birthright citizenship is probably going to take overturning the Supreme Court’s ruling in U.S. v Wong Kim Ark (1898) which established the precedent of non-citizen offspring being citizens if born here. Of course Wong Kim Ark’s parents were here legally when he was born.
The second sentence of Section 1 of the 14th Amendment has been interpreted to be definitive: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive ANY PERSON of life, liberty, or property, without due process of law; nor deny to ANY PERSON within its jurisdiction the equal protection of the laws.
The wording switches from “citizen” to “person.”