I start from two premises. One is the clear distinction in meaning between subject to the jurisdiction and subject to the power of. I continue with the premise that illegal aliens, who have entered our country illegally and remain here illegally, are subject only to the power of our government.
Our government sits at the head of our social compact. More to the point, our government has exactly zero jurisdiction beyond the limits of our social compact; this is well understood both in our domestic law and in international law. Illegal aliens have illegally entered our nation, and they continue to stay without turning themselves to positively seek to get themselves right with our laws, especially with that subset that is our immigration laws. By their own conscious behavior, they are holding themselves outside of our social compact where our government has no jurisdiction, only raw power.
Within or without our social compact is a distinction that applies also to pregnant women who enter our nation, even legally, solely to have their babies on American soil, and who then depart for their home country. These women, never having given up their home country’s jurisdiction, have never submitted themselves to our jurisdiction. Indeed, by their intention of returning to their home country as soon as they’re able after birth, these women have never intended to submit themselves to our government’s jurisdiction. These women have held themselves outside our social compact for the duration of their stay here.
From that, babies born to illegal aliens and to birth-tourist mothers are not—cannot—be citizens of our United States: they’ve been born outside our government’s jurisdiction.
Looking at this from another direction, here is the relevant clause of the 14th Amendment:
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.
The form of the clause’s logical construction is this: If A AND B, THEN C. Thus: If born or naturalized AND subject to our jurisdiction, THEN citizen.
Both A and B must be true for C to be true; that’s the meaning of the AND connector. Since the babies born to illegal aliens or to birth-tourist mothers do not meet the second condition, they cannot reach the THEN outcome.
There is a counterargument, and that one centers on the early 17th century British origins of the concept of citizenship by dint of place of birth, with further references to American court decisions on the matter prior to the 1868 ratification of our 14th Amendment. This argument also makes reference to long-standing policy as well as to that legal matter. The counterargument, though, fails for a number of reasons.
Last reason first: ‘long-standing policy” is irrelevant. Policy isn’t binding on anything outside the administrations that choose to maintain it; policy is not statute, it is too easily changed solely extra-legislatively, and it can be eliminated altogether by any subsequent administration.
British law and British legal history have value only for the logic and ideas contained in their derivation; they have nothing to contribute in terms of legally binding matters. They have no jurisdiction inside the United States; indeed, they have no jurisdiction outside the bounds of Great Britain. They’re wholly irrelevant.
Similarly, those American court rulings that predate ratification of the 14th Amendment are wholly irrelevant. With that ratification, those rulings’ vague descriptions of what an American citizen was were rendered entirely without effect by the clear definition of “citizen” that the 14th Amendment created and codified.
Even the counterargument’s references to court rulings subsequent to Amendment’s ratification are irrelevant: they merely expand on those prior irrelevancies; not affecting the Amendment’s dispositive definition, they do not render those decisions current and within the Amendment’s bounds.
