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You say: There is nothing in the Constitution, in Federal law, or in case law anywhere that mandates U.S. citizenship by virtue of being born on U.S. soil.

and...

the pervasive myth that the U.S. Constitution grants birthright citizenship to anyone born on U.S. soil is simply that: a myth.

The US Constitution says:

Amendment XIV
(1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.

You argument rests upon the clause "and subject to the jurisdiction thereof". The customary interpretation rests upon a simple reading of the entire sentence.

To claim there is NO BASIS and it is a MYTH is a big over statement, in my opinion.

In the case in question the fellow from Saudi Arabia is certainly "subject to the jurisdiction thereof" by virtue of the fact that he is being tried by the US government.

I support the Constitution, even when it is inconvennient. I also would support repealing parts of the 14th Ammendment.

Can you give an example of someone who is born in the US, but who is not "subject to the jurisdiction thereof"? The authors of the Fourteenth Amendment must have had something in mind to write it the way they did.

In the case in question the fellow from Saudi Arabia is certainly "subject to the jurisdiction thereof" by virtue of the fact that he is being tried by the US government.

I think the point is that he is not being tried by the US government.

The simple answer, though, is on page 4 of the passport. "Loss of citizenship"; such as taking an oath of allegience to a foreign government.

If State wasn't infested with weenies (seemingly), all those rat bas%#rds would have their citizenship revoked, and all this sophistry could be swept aside. The only time I hear the word "citizen" anymore anyway is with stories like these. As a practical matter we're all "residents" or "occupants" if you read the press. Don't want to offend the illegals, you know.

I thought there was also some kind of residency requirement. I mean, that's the excuse they used in not helping that woman and her kids over in SA.

Time for a little "judicial activism" on our side. The Constitution as a living document, doncha know.

It's not surprising that you would interpret "jurisdiction" in a geographical sense, and not a nationalist sense. That's our experience as Americans; it reflects our continual crossing of jurisdictional lines - county lines, state lines, etc.

But that was not the sense of the phrase in 1868. It meant that someone was to be regarded as a "subject" or "national" of a political entity - a kingdom or republic, what ever the situation. Therefore, that person would be "subject to the jurisdiction" - of their specific sovereign.

It didn't mean that they could not be tried for a crime in the United States - but it could mean that their status in such a trial might be different from someone "subject to the jurisdiction" of the United States. Note that this operates even today, where a certain group of people are now being denied the right of jury trial, based on their lack of nationality, and status as "enemy combatants" or "terrorists".

So the phrase "not loyal to" or "not subjects of" could be construed as being congruent with the notion of not being "subject to the jurisdiction of". The United States was, in 1868, unique in that the sovereign was the people themselves, with the state being their elected surrogate. Perhaps for that reason, and an aversion to using the old monarchial term of "subject", the Radical Republicans who wrote the 14th used the more obtuse phrasing.

But, as Carry_Okie points out with the Slaughterhouse case, that was what the judges of the time easily recognized as being the intent.

The actual outcome of FILE's argument may be less obvious. In the 1898 Wong Kim Ark case, the court referred to the concept of "Sojourners" to legitimize the citizenship of Ark, who was born in San Francisco to Chinese parents who were not citizens, and who subsequently left the U.S. to return to China. Even though the parents were admitted to be "subjects of the Emperor of China", i.e., subject to his jurisdiction, they were considered to be Sojourners temporarily subjects of the American state. This concept is based on English Common Law, which essentially made anyone in England subjects of the King. Kings tend to like the concept that everyone is beholden to them, so even if you were a foreigner in Merrye Olde England, he owned you. Your offspring during such sojourns were also considered the King's subjects.

Based on this interpretation, I think Hamdi might have an argument for his citizenship. But I don't accept Ark as legitimate; I think it was bad law then, and worse law now.

We'll see what the court thinks. Considering the recent decisions of this 'court', I'm not optimistic. In fact, it may be an opportunity for a really BAD precedent to be set.

"I support the Constitution, even when it is inconvennient. I also would support repealing parts of the 14th Ammendment."

I concur. I think the only way to prevent the misuse of the 14th would be to repeal it in toto or at least in part.

Citizenship shold depend upon blood--by which I mean: if one of your parents is a citizen, you are a citizen, regardless of locale; if neither is, then neither are you, regardless of locale. This interpretation or modification of the 14th has about as much chance of being implimented as porcine aviation.

--Boris

You are right and it is a big overstatement. Actually it is WRONG to say there is no case law on this. In 1890's in the Yee decision, the Supreme Court said that children born in the US to legal residents were automatically citizens. This has been treated as any children are automatically citizens ... this case is similar enough that it is a bad case to try to end the 'anchorbaby' problem. The real solution has to come from an ACT OF CONGRESS, that restricts the citizenship of those born by defining "under the jurisdiction" to mean long-term legal residents or citizens. But without EXPLICIT Conressional action, the USSC will follow precedent and decide for the terrorist, IMHO:

"Friends of Immigration Law Enforcement filed a motion in the case of Saudi Arabian Taliban fighter, Yaser Esam Hamdi. Hamdi is considered by the government to be an American citizen because he was born in Louisiana to Saudis who were here on a temporary work visa. While still a tot, Hamdi's parents returned to Saudi Arabia with him, where he lived until he went off to join a terrorist group trying to kill Americans in Afghanistan. This man is not American in any real sense, of course, and the Supreme Court now has a historic opportunity to end the absurd custom of "birthright citizenship."

Since all other kids born to parents are given automatic citizenship, why not him? It's the current law. There is NO place for the Supreme Court to decide this any other way, because there is NO LAW DENYING SUCH CITIZENSHIP. If we want to stop this, we need to GET CONGRESS TO ACT.

...argument rests upon the clause "and subject to the jurisdiction thereof". The customary interpretation rests upon a simple reading of the entire sentence. To claim there is NO BASIS and it is a MYTH is a big over statement, in my opinion. In the case in question the fellow from Saudi Arabia is certainly "subject to the jurisdiction thereof" by virtue of the fact that he is being tried by the US government. I support the Constitution, even when it is inconvennient. I also would support repealing parts of the 14th Ammendment.

You don't have to be a U.S. citizen to be tried by the U.S. Government for war crimes. (See: Nuremberg Trials)

"Jurisdiction thereof" refers to the legal status at the time of birth and not getting arrested for a crime later in life.

For example, was his father subject to be drafted by the U.S. Government at the time of his birth as was a similar U.S. citizen or legal resident alien? Or were both of his parents foreign citizens?

In the late 19th Century and early 20th Century, American Indians were considered members of "Indian nations". That is why they were not considered U.S. citizens simply by being born on U.S. soil inspite of the XIV Amendment.

That did not change until the passage of the 1924 Indian Citizenship Act

"Be it enacted . . ., That all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property. Approved, June 2, I924. "

If your interpretation of the XIV Amendment were correct, there would have been no need to pass the 1924 Indian Citizenship Act.