Replies

You can say that again!

But, seriously, you don’t start there. In construing a statute, you start by looking at the statutory language. Interpret it according to the ordinary and popular sense in words are used. If possible all provisions are given equal weight, and the whole is interpreted together so that no part is regarded as surplus. Only after you go through that do you get to legislative intent

“…subject to the jurisdiction thereof” is pretty awkward to modern ears, so I do think you get the intent. I just don’t think that SCOTUS is going to have the guts to pull the trigger on the proper interpretation

Here's my take. The phrase "subject to the jurisdiction thereof" is specifically in the topic of citizenship. For example, that phrase is not pulled out of a law about theft or about murder. It's about what the 14th Amendment is about: who is a citizen. So don't let the left tell you that because an immigrant (here legally or illegally) is subject to our traffic laws, therefore her kids born here are U.S. citizens.

With that in mind, then the next question, who is here that the citizenship status is subject to another country? Since the entire rest of the world doesn't do citizenship birth based on the soil the baby was born on (jus soli) but instead by if the baby was born to citizens (jus sanguinis), then it stands to reason to me that the citizenship of a baby born here is based on the citizenship of the parents. If the parents are from another country, even if here legally, then another country has jurisdiction over them and their baby (at least jurisdiction as far as citizenship goes).

Only if another country doesn't have jurisdiction over the citizenship of the person born here (i.e. the freed slaves had been severed from their native countries for many generations and thus no traceable line to their home countries to determine jurisdiction) is that person born a U.S. citizen.

IIRC, the legal phrase jus soli wasn't used as an argument for citizenship until relatively recently. Jus soli was about other types of jurisdiction. For example, if someone born and living in Massachusetts breaks a law while visiting in New Hampshire, he's tried in New Hampshire court instead of Massachusetts because the crime was committed on New Hampshire "soil".

The case generally turns on 2 matters: the meaning of the phrase, "and subject to the jurisdiction thereof" and the applicability of United States v. Wong Kim Ark (1898).

Does the phrase, "and subject to the jurisdiction thereof" mean to define jurisdiction in the sense we understand it today, that is, liable to be subjected to the judicial process of the United States or does it have a more obscure meaning that can be mined from the history of the United States and England?

In other words, did the authors who wrote it and those who ratified the amendment in the wake of the Civil War understand the phrase as supporters of the executive order argue? A short answer is that mining the history of the law of citizenship in England and the colonies can be argued on both sides. Therefore, it is more difficult to maintain that a inconclusive and disputed meaning of jurisdiction relating to citizenship in old England that is supportive of the executive order is that which was understood in 1866.

Additionally, there is a problem that "jurisdiction" today and "jurisdiction" then generally meant one's person is liable to brought under American judicial process. If the authors of the amendment has meant a more restricted definition altering common understanding, they presumably would have written the amendment to reflect that understanding. They did not. There is the legislative history, for what it's worth, it says that the intention at the time was to include Chinese citizens, implying a birth rate citizenship interpretation.

On this issue, in view of the legal precedents subsequent to the amendment and administrative understanding and procedures since then, and especially in view of the 1998 Wong Kim Ark decision, advocates for a new understanding from present practice bear a heavy burden of persuasion.

Finally, the president's position requires the Supreme Court to distinguish that case on the basis of the legal or illegal status of the parents of the person claiming citizenship. As cited scholarship has been pointed out, at that time, 1898, there was no distinction in the law between alien and non-alien persons, suggesting that to overturn present practice by a very questionable distinction is not a path eagerly to be pursued by a majority of the court.

Caveat: anyone who presumes to predict the outcome in these cases is likely to look foolish.