Argument: Writers of 14th amendment did not want birthright citizenship for illegals
"George F. Will: Citizenship a birthright?" The Commercial Appeal. March 28th, 2010: "Writing in the Texas Review of Law and Politics, Graglia says this irrationality is rooted in a misunderstanding of the phrase 'subject to the jurisdiction thereof.' What was this intended or understood to mean by those who wrote it in 1866 and ratified it in 1868? The authors and ratifiers could not have intended birthright citizenship for illegal immigrants because in 1868 there were and never had been any illegal immigrants because no law ever had restricted immigration.
If those who wrote and ratified the 14th Amendment had imagined laws restricting immigration -- and had anticipated huge waves of illegal immigration -- is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not.
The Civil Rights Act of 1866 begins with language from which the 14th Amendment's citizenship clause is derived: 'All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.' (Emphasis added.) The explicit exclusion of Indians from birthright citizenship was not repeated in the 14th Amendment because it was considered unnecessary. Although Indians were at least partially subject to U.S. jurisdiction, they owed allegiance to their tribes, not the United States. This reasoning -- divided allegiance -- applies equally to exclude the children of resident aliens, legal as well as illegal, from birthright citizenship. Indeed, today's regulations issued by the departments of Homeland Security and Justice stipulate:
'A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the 14th Amendment.'
Sen. Lyman Trumbull of Illinois was, Graglia writes, one of two 'principal authors of the citizenship clauses in 1866 act and the 14th Amendment.' He said that 'subject to the jurisdiction of the United States' meant subject to its 'complete' jurisdiction, meaning 'not owing allegiance to anybody else.' Hence children whose Indian parents had tribal allegiances were excluded from birthright citizenship."
Howard Sutherland. "Citizen Hamdi: The Case Against Birthright Citizenship." Minnesotans for Sustainability. September 27, 2004: "In the 1866 Senate ratification debate, the Citizenship Clause’s proponent, Jacob Howard of Michigan, said it was, '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 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, 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.'"