Anyone present in the United States is subject to her laws, with the possible exception of diplomats. Break the law and you can be tried, convicted and punished. That includes immigration laws, for which violations the typical punishment is deportation.
As a public school educated non-lawyer citizen, it seems pretty plain to me. The "fix" would be a few words added to the Constitution at the appropriate spot (an amendment). The phrase "born to persons legally present in the United States" comes to mind but let the lawyers figure that out.
That would not affect those already born here of illegal parents and presumed (rightly or wrongly) to be citizens, as that would be viewed as an ex-post facto law, prohibited under article 1, Section 9.
You’re wrong.
Using your logic, anyone in the geographic limits of the United States - tourist, businessman, airborne passenger over Kansas on a Mexico-London flight is subject to the draft, income tax, voting laws, whatever, because just being here means they are subject to ALL laws.
You would make a great SupremeCourt Justice in the manner of Sotomayor, Brown, and Kagan.
As a public school educated non-lawyer citizen, it seems pretty plain to me.
And as a 30 year lawyer, I agree. The plain language of the Amendment may not have the result the drafters and ratifiers anticipated, but it is nevertheless clear in the context of that time.
The key issue is what the phrase "and subject to the jurisdiction thereof" would have meant at the time. Who was it intended to exclude? At the time the amendment was drafted and ratified, the United States had no immigration laws at all. Therefore, the phrase could not have been intended to exclude only immigrants who were in this country "illegally" because that concept didn't even exist at that time.
So the real question is - what was the intent of the 14th Amendment with respect to the millions of immigrants then in this country? Because surely, the drafters and ratifiers of the amendment were aware of those millions of immigrants, and the fact that they were having children.
Nobody would have considered for a moment that all those immigrants present in the US at the time of the amendment were not subject to the jurisdiction thereof". A great many of them had served in the US military, and were fully subject to all of our laws. So that exclusion clearly did not apply to them.
The one thing recognized by everyone at that time was that those with diplomatic immunity, which was a concept with which they all were very familiar, were not subject to the jurisdiction of the host country. They were in fact formal representatives of another sovereign state - not just random citizens of another state. And those were the people excluded by the 14th Amendment.
I think it is a complete strain of logic to argue that an amendment intended to apply only to freed slaves would not have said just that. That interpretation also would have provided to slaves and their children greater rights than many other immigrants in this country who had served in the US military during the civil War. The slaves get automatic citizenship, but free white people don't? Seriously? Doesn't anyone think there would have been an outcry on the part of all the white people excluded from that grant of citizenship?
Personally, I think birthright citizenship for illegal aliens is an awful idea. And I think if we could have asked the framers of that amendment, they would agree. The problem is we are stuck with the plane meaning of the words that they drafted, good or bad. If we don't like the interpretation attached to the words they wrote, the solution isn't to try to read their minds and re-word the amendment so that it means what we think they would have wanted. It is to amend the amendment.
Or, pass a law stating that illegal immigrants are not subject to the jurisdiction in the United States. That would work also.
Let’s not forget the Wong Kim Ark decision has been used to also justify the historical meaning of ‘natural born citizen’ such that Mr. Ark would be able to become President.