List of related research and legal articles regarding the rethinking and re-evaluation of the citizenship clause.
"Just five years after ratification of the Fourteenth Amendment, the Supreme Court appeared to take a restrictive view in the Slaughter-House Cases, observing (in an aside) that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from [the Clause’s] operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
"But a decade later, the Court (again in an aside) suggested a broader view in Elk v. Wilkins.63 Elk principally confirmed the pre-Amendment rule that tribal Native Americans lacked birthright citizenship under the Amendment, but in the course of its discussion, the Court observed that such Native Americans were no more subject to the jurisdiction of the United States than “the children born within the United States, of ambassadors or other public ministers of foreign nations”64 (thus arguably implying that other U.S.-born children of aliens were U.S. citizens).65 Ultimately the Court faced the issue directly in United States v. Wong Kim Ark in 1898, holding that the U.S.-born child of lawful Chinese resident immigrants was born “subject to the jurisdiction” of the United States and thus was a U.S. citizen under the Fourteenth Amendment."
"After the Supreme Court rejected the latter conclusion in Wong Kim Ark, the Executive Branch reverted to a broad view of the Clause, concluding that the Clause conveyed citizenship not only to children of permanent residents..."
"Modern arguments for a narrower scope of “subject to [U.S.] jurisdiction” began with the 1985 book by Peter Schuck and Rogers Smith, Citizenship Without Consent.76 Adopting what they called a “consensual” position, Schuck and Smith argued that the Citizenship Clause should be read to extend citizenship only to U.S.-born children of parents who (if not themselves citizens) had become part of the U.S. political community as lawful permanent residents.77 Their term “consensual” invoked the proposition that the sovereign should consent to the person’s integration into U.S. society by admission of the parents as lawful permanent residents. Thus, while accepting the result in Wong Kim Ark, their view excluded from citizenship both children of temporary visitors and children of persons not lawfully resident."
"Professor John Eastman, for example, has expressly argued that Wong Kim Ark was wrongly decided: Justice Gray [in Wong Kim Ark] appears not to have appreciated the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of its laws, and complete, political jurisdiction, which additionally requires allegiance to the sovereign. . . . . . . . . . Justice Gray simply failed to appreciate . . . that there is a difference between territorial jurisdiction and the more complete, allegiance-obliging jurisdiction that the Fourteenth Amendment codified.80 Thus, Professor Eastman argues that the extent of constitutional citizenship should be restored to what the “drafters [of the Fourteenth Amendment] actually intended, that only a complete jurisdiction, of the kind that brings with it a total and exclusive allegiance, is sufficient to qualify for the grant of citizenship to which the people of the United States actually consented."
"The most common meaning of “jurisdiction” is associated with courts, meaning a court’s power over a case or a litigant.146 That meaning fits poorly with the Citizenship Clause, which invokes the jurisdiction of the United States." (This is why you cannot use the modern definition found in a dictionary in this debate/discussion)
"Thus in Wheaton’s terms, “subject to the jurisdiction” of the United States meant under U.S. sovereign authority."
"A sovereign had almost complete authority over (almost) every person and thing within its territory, but authority over almost nothing outside its territory except the actions of its own citizens."
"The equation of “jurisdiction” with “sovereign authority” in this passage is unmistakable—amounting to the unsurprising proposition that visitors to a country. It is true that aliens (and typically their U.S.-born children) also owed allegiance to a foreign sovereign even while in the United States. As discussed, international law recognized the authority of sovereigns to govern activities of their citizens/ subjects abroad. Moreover, many nations claimed the allegiance of foreign-born children of their citizens/subjects, either because the nation followed the European rule of jus sanguinis or because (like Britain) the nation had special statutory rules for subjects’ foreign-born children.196 Thus, U.S.-born children of nondiplomat aliens were not subject to the exclusive jurisdiction of the United States; they were subject to overlapping jurisdiction to the extent they were citizens/subjects of one sovereign in the territory of another. ordinarily must obey that country’s laws and courts while within its territory."
