Trump wants to modify the 14th Amendment

[Rawley]

I have been reading up on this, and I am reaching the conclusion that an originalist interpretation of "subject to the jurisdiction of" is not about being subject to the local laws. That was assumed- a person is subject to local laws wherever he is.

Correct. The phrase "within the jurisdiction" later in the Amendment addresses local laws being applicable to illegals.

It was about allegiance, not geography. This was a point of contention when English ships would stop US merchants at sea, and remove Englishmen to press them into military service.

"Subject to the jurisdiction of" meant "who has claim to the person, the country where he was living or the country of his nationality?"

And also "who is entitled to the protection of the country of his nationality?" When we travel abroad, we have some protections as US citizens. We still have to abide by local laws, but if we are detained, the gov't will (in theory) try to get us released, if we are accused of a crime, the gov't will demand we receive due process, etc.

There was no such thing as an "illegal immigrant" when the 14th was adopted. The first law criminalizing unauthorized entry to the US was passed in 1929. Immigrants were either naturalized, or they were not naturalized. There was no question about legal presence.

Wong Kim Ark didn't grant citizenship to Native Americans, so "all persons" didn't really mean ALL persons...

I think the Congress could pass legislation using their Section 5 authority that defines "all persons" as persons lawfully present, and it would probably stand up in an originalist Supreme Court.

I think the EO route is problematic, but I am not convinced an amendment is the only way to change the interpretation of the citizenship clause in Wong Kim Ark...

Why do you think an EO is problematic?

 

[JohnDB]