That is the key question. And the misguided justices who decided United States v. Wong Kim Ark in his favor seem to have ignored the following clarifications of the ”and subject to the jurisdiction thereof” wording in the 14th Amendment (14A). This is evidenced by the clarifications of that phrase in the congressional record by the lawmakers who proposed 14A to the states for ratification, these clarifications below.
Regardless what the United States v. Wong Kim Ark justices and Bill OReilly wants everybody to believe about anchor babies, the federal lawmakers who proposed 14A to the states had clarified that 14A does not automatically make a person born in the states a citizen of the USA.
The first excerpt is Senator Jacob Howards clarification.
"The first amendment is to section one, declaring that ”all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens [emphases added], who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.” - Senator Jacob Howard, Congressional Globe, 1774 - 1875 Congressional Globe, Senate, 39th Congress, 1st Session.
And to clear up any confusion about ”foreigners” and ”aliens” in the excerpt above being used to describe the family members of ambassadors or foreign ministers, the excerpt below is another official perspective on what 14As jurisdiction clause means.
"Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that ” all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means ”subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajo Indians are subject to the Complete jurisdiction of the United States? What do we mean by ”subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means. [emphases added] Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make . . .” - Senator Lyman Trumbull, Congressional Globe, 1774 - 1875 Congressional Globe, Senate, 39th Congress, 1st Session. (See middle of first column.)
In fact, note that Native Americans were not regarded as citizens, regardless that they were born on US soil, until Congress made the Indian Citizenship Act in 1924.
Indian Citizenship Act
This is enough proof, for me anyway, that people born in the USA to non-citizen parents are not automatically citizens of the USA under the 14th Amendment, regardless if the parents are residents under a states immigration laws.
Insights welcome.
I looked at the Naturialization Act of 1790 reference on Wikipedia:
https://en.wikipedia.org/wiki/Naturalization_Act_of_1790
It appears to state that if the father had been “resident” in the US and the mother was a US citizen, that “natural born” was met.
Thoughts?
Damn the commas, full ignorance ahead. /sarcasm
Oh, and Cruz’s dad appears to have been a resident not because he was a US citizen (he wasn’t) but because of asylum being granted.
Interesting.