The Claremont Institute – Settled Law: Birthright Citizenship And The 14th Amendment by John Yoovia The American Mind. Friday, November 2, 2018

“…The 14th Amendment. According to the best reading of its text, structure, and history, anyone born on American territory, no matter their national origin, ethnicity or station in life, is an American citizen. While the original Constitution required citizenship for federal office, it never defined it. The 14th Amendment, however, provides that “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.” Congress did not draft this language to alter the concept of citizenship, but to affirm American practice dating from the origins of our Republic. With the exception of a few years before the Civil War, the United States followed the British rule of jus solis (citizenship defined by birthplace), rather than the rule of jus sanguinis (citizenship defined by that of parents) that prevails in much of Europe. As the 18th century English jurist William Blackstone explained: “the children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.” After the Civil War, congressional Republicans drafted the 14th Amendment to correct one of slavery’s grave distortions of our law. In Dred Scott v. Sanford (1857), Chief Justice Roger Taney found that slaves, even though born in the United States, could never become citizens. The 14th Amendment directly overruled Dred Scott by declaring that all born in the U.S., irrespective of race, were citizens. It also removed from the majoritarian political process the ability to abridge the citizenship of children born to members of disfavored ethnic, religious, or political minorities. The only way to avoid this straightforward understanding is to misread the 14th Amendment’s text, “subject to the jurisdiction thereof,” as an exception that swallows the jus solis rule. Some originalist scholars, such as John Eastman and Edward Erler, argue that this language must refer to aliens, who owe allegiance to another nation and not the U.S. I believe that view is mistaken. The 14th Amendment’s reference to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” refers to children who are born in U.S. territory and are subject to American law at birth. Almost everyone present in the United States, even aliens, come within the jurisdiction of the United States. If the rule were otherwise, aliens present on our territory could violate the law with impunity…

Amendment’s drafters had wanted “jurisdiction” to exclude children of aliens, they easily could have required citizenship only for those with no “allegiance to a foreign power.”