Mark Levin pointed out that the 14th did not apply to American Indians (who did not want American citizenship at that time) because they did not fall under US jurisdiction since they still lived under tribal law.
He contends that any other foreigner giving birth in the US would have been treated the same as American Indians as they also were subject to laws of another nation. Therefore it was not the intent behind the 14th to grant citizenship to children born in the US to foreign parents.
And also the the constitution gives Congress the power to set the terms of immigration and naturalization policy.
Exactly!
I think that’s a stretch.
Well, then Mark Levin has not thoroughly reviewed the birthright citizenship cases because most of them rely on The Exchange v. McFadden
Chief Justice Marshall wrote the following in The Exchange v. McFadden. Many citizenship cases have cited it or cases that rely on it, including Wong Kim Ark, Elk v. Wilkins, and Minor v. Happersett.
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.It will take a constitutional amendment to undo birthright citizenship.