One thing I haven’t seen stressed enough about the crank arguments on 14th Amendment “jurisdiction” is that they’re incoherent on their own terms. If you take them seriously, they wouldn’t just affect children of unauthorized immigrants. vox.com/policy-and-pol…
The claim is that “under the jurisdiction” doesn’t mean what it seems to on an ordinary language reading (“subject to the laws of...”) but only applies to children under the “complete” jurisdiction of the U.S., lacking any (presumably inherited) allegiance to any other state.
But on that theory, why would it exclude only children of “illegal immigrants” (a category that didn’t really exist when the 14th Amendment was ratified)? Why not non-citizen legal permanent residents and dual nationals also?
Wong Kim Ark’s parents, after all, were Chinese subjects. That they were legally resident in the U.S. had no bearing on their allegiance to China, which on this theory is supposed to be the decisive factor. The theory provides no basis for distinguishing WKA, only reversing it.
The theory also would seem to make the application of the U.S. Constitution depend on the laws of *other countries*, since whether the child is eligible for foreign citizenship (and therefore supposedly not fully under U.S. “jurisdiction”) would depend on foreign law.
The U.S. currently lets children born abroad inherit the U.S. citizenship of either parent, but that’s a matter of statute and has changed over time. Different countries have different rules.
The political argument we’re hearing is that the Wong Kim Ark precedent is fine as far as children of legal permanent residents goes, but doesn’t require citizenship for children of unauthorized immigrants. But the legal theory being invoked doesn’t support that conclusion.
The logical upshot of this theory is, instead, that the laws of the country where the parents were born determine whether the child is a U.S. citizen, and whether they’re lawfully resident or not should be irrelevant.
The disconnect between theory and conclusion here isn’t particularly subtle. Which is a good reason to suspect it’s less a serious position advanced in good faith than an ad hoc bit of cover for a policy preference at odds with our Constitution.
