http://thefederalist.com/2018/11/02/heres-key-clause-birthright-citizenship-debate-briefly-explained/
President Trump recently disclosed plans to sign an executive order ending so-called “birthright citizenship” for babies of non-citizens born on U.S. soil. This would mark a major overhaul of immigration policy and almost certainly trigger a legal battle.
The 14th Amendment states: “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.” While opponents to Trump’s proposed action opine that the constitutional language is cut and dry, this might not necessarily be the case.
Putting aside the question of whether Trump may end birthright citizenship by way of executive order, the main issue of contention revolves around the “subject to the jurisdiction thereof” language in the 14th Amendment. Some opine that the 14th Amendment “was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas.” In other words, if a parent is in the country illegally and is, therefore, not subject to the jurisdiction of the United States, then, by association, neither is his or her newborn child.
Conversely, others interpret this provision to mean “the legal obligation of all foreigners and immigrants to follow U.S. law.” Stated another way, if a child is born to an illegal immigrant in the United States, the baby is automatically a citizen because he or she is obligated to follow U.S. law. The country of birth is paramount.
John C. Eastman highlighted the flaw(s) associated with this latter argument by way of a simple example in an article in National Review. He wrote:
When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a ‘temporary sojourner,’ to use the language employed by those who wrote the 14th Amendment, and not ‘subject to the jurisdiction’ of the United States in the full and complete sense intended by that language in the 14th Amendment.