I’m trying to approach this from a literalist point of view to arrive at the “birthright advocates’” position on the ‘subject to the jurisdiction thereof’ question. Even being literalist, it is still a toss-up. It isn’t a matter of ‘subject-hood’ that one gets stopped for going 60 in a 35 mph zone.
So, we’re left with some kind of originalist approach that actually looks into the history, language, intent, etc. of the Congress, states, and times that brought us the 14th.
It is at that level that ‘birthright citizenship’ fails the test. If ‘rationality’ is applied, then that could be said to be using a ‘living constitution’ approach, but I don’t think looking at the rationality of the authors is anything but pure originalism.
Thus, your comment about a ‘suicide pact’ is relevant now because it would have been relevant then.
I strongly doubt the literalist position will give you much purchase on this problem. Literalists read everything "literally." Which is an approach to solving problems without regard to any overarching context. All questions have only "binary" answers: Yes/No; true/false; 1/0.
So Literalists glom onto the "all persons born or naturalized in the United States...are citizens of the United States and of the State wherein they reside." And totally ignore the the highly significant qualifier: "and subject to the jurisdiction of the United States" part in the Article XIV, Section 1 definition of "citizen."
I think Thomas Jefferson may have had something similar in mind, when he observed that it would be "absurd to sacrifice the ends to the means," when by so doing "would be to lose the law [the means] itself, with life, liberty, property and all those who are enjoying them [the ends]."
In short, Jefferson does not forget the human moral "context": The "end" or purpose of American government is to secure the liberties of the people, and defend them against all enemies foreign and domestic. The Constitution is the primary tool for doing this.
I gather what TJ was suggesting was a possible future scenario in which the Constitution would be habitually construed as mere words on paper. His main concern seems to be about what happens to the Law, when the upholders and principal defenders of that very Law — the very People who whole-heartedly consent to live under it, who give their allegiance to it — are wiped off the map — by mere execution of "law"???
I hear a lot of people nowadays, screaming that "birthright citizenship" is lawfully enshrined forever under the Fourteenth Amendment of the U.S. Constitution. [Dubious to me.]
But still, one does want to ask about the qualifier, "and subject to the jurisdiction of...."
My sense is (FWIW) the clarification of this language does not depend on a constitutional amendment. The U.S. Congress can lawfully take care of it.
What I have in mind is a bill in the House of Representatives that, if passed, would proceed to the Senate for its vote. We'll call this bill "the Sense of Congress" ON THE ISSUE AT HAND [ birthright citizenry] — that If passed by simple majority in both houses, would be sent to the Supreme Court.
And methinks the Supreme Court would have to take notice of it: Article III, Section 2, clearly states that Congress has the power to regulate what kinds of cases the SCOTUS hears, and also what kinds of rules pertain to the deliberation of such cases:
"...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such regulations as the Congress shall make.