It boils down to jurisdiction and what country the parents are loyal to.
Their loyalty is to the country they were born in. Not the country they entered illegally.
Its about damned time this was addressed.
The legal consensus in this country has always been that location of birth makes one a naturalized American. How can a baby have a allegiance to another country when he or she has never been outside of the US.
James Madison: It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.
Secretary of State
William Learned Marcy: In reply to the inquiry which is made by you…whether “the children of foreign parents born in the United States, but brought to the country of which the father is a subject, and continuing to reside within the jurisdiction of their father’s country, are entitled to protection as citizens of the United States,” I have to observe that it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship. There is not, however any United States statute containing a provision upon this subject, nor, so far as I am aware, has there been any judicial decision in regard to it.
President Lincoln’s Attorney General
Edward Bates. In a letter to Secretary of the Treasury Salmon P. Chase,
he said:
"And our constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.
If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the ” natural born” right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance."
In a later letter he wrote,: I" am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship. I might sustain this opinion by a reference to the well-settled principle of the common law of England on this subject; to the writings of many of the earlier and later commentators on our Constitution and laws; to the familiar practice and usage of the country in the exercise of the ordinary rights and duties of citizenship; to the liberal policy of our government in extending and recognizing these rights, and enforcing these duties; and lastly to the dicta and decisions of many of our national and state tribunals. But all this has been well done by Assistant Vice Chancellor Sandford, in the case of Lynch vs. Clarke, and I forbear. I refer to his opinion for a full and clear statement of the principle, and of the reasons and authorities for its support."
Representative John Bingham said this before passage of the 14th Amendment: The Constitution leaves no room for doubt upon this subject. The words ‘natural born citizen of the United states’ appear in it, and the other provision appears in it that, “Congress shall have power to pass a uniform system of naturalization.” To naturalize a person is to admit him to citizenship. Who are natural born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth–natural born citizens.
During the debate on the 14th Amendment, it was clear that children born in the US would be citizens of the US.
Senator George Williams of Oregon:In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of the ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of that court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, “subject to the jurisdiction of the United States,” to mean fully and completely subject to the jurisdiction of the United States. if there was any doubt to the meaning of those words, I think that doubt is entirely removed and explained by the words in the subsequent section; and believing that, in any court or by any intelligent person, these two sections would be construed not to include Indians not taxed…
Mr. James Conness of California: The proposition before us…relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision into the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.
James Ho who succeeded Ted Cruz as Texas Solicitor General focuses on the word allegiance.
"I would submit that the plain meaning of “subject to jurisdiction” is rather straightforward. It simply means that one must have a duty to obey U.S. law. When a person is “subject to the jurisdiction” of a court of law, that person is required to obey the orders of that court. When a company is “subject to the jurisdiction” of a government agency, that company is required to obey the regulations promulgated by that agency. The meaning of the phrase is simple: One is “subject to the jurisdiction” of another whenever one is obliged to obey the laws of another. Simply put, the test is obedience, not allegiance.
It is also worth observing that, if the drafters had intended to require allegiance, rather than obedience, they could have said so. How easy it would have been for them to state explicitly that only children born to citizens are guaranteed birthright citizenship—with a simple proviso to address the descendants of slaves. But instead, they chose the language of jurisdiction, not citizenship. And that decision deserves respect.
Of course, the phrase “subject to jurisdiction” must mean something. Otherwise, it would serve no purpose. Under the interpretation I put forth, it does serve a purpose. The “jurisdiction” requirement excludes only those individuals who are not required to obey U.S. law. This concept—like much of early U.S. law—derives from English common law. Under the common law, neither foreign diplomats nor enemy soldiers are legally required to obey our law. They enjoy diplomatic immunity or combatant immunity from our laws. As a result, their U.S.-born offspring are not entitled to birthright citizenship.
This understanding is also confirmed by the congressional debates surrounding the Fourteenth Amendment. Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship—but no one disputed the amendment’s meaning. In fact, opponents of the amendment conceded—indeed, they warned—that the language of the Citizenship Clause would guarantee citizenship to the children of those who “owe [the United States] no allegiance.” And supporters of the amendment agreed that only members of Indian tribes, ambassadors, foreign ministers and others who are not “subject to [our laws]” would fall outside the guarantee of birthright citizenship.
The bottom line is that location of birth has been a major factor in deciding the citizenship of a person born in the US regardless of parentage. It was a major factor BEFORE the 14th Amendment.
On this "Natural Born Citizen" Issue, Part II: From William Learned Marcy to Wong Kim Ark
