With the issue of birthright citizenship for children of illegal aliens back in the news, here are my views (from the 2011-2012 campaign season):
The short version is this: The first sentence of the Fourteenth Amendment conveys U.S. citizenship on all persons “born … in the United States and subject to the jurisdiction thereof.” Obviously we are talking here about persons “born … in the United States.” Thus the children of illegal aliens are not U.S. citizens only if they are not “subject to the jurisdiction” of the United States.
But there is no sense in which children of illegal aliens are not “subject to the jurisdiction” of the United States. So long as they remain in the United States, they are subject to U.S. law. If they violate U.S. law, they can be arrested by U.S. law enforcement, brought before a U.S. court, and sentenced to U.S. prison.
Moreover, it’s evident from nineteenth-century international law who might be born in the United States but not be “subject to the jurisdiction” of the United States: children of ambassadors and other diplomatic personnel. Under the international law of the time (as is still largely true in modern law) foreign diplomats had immunity from local law. They could not be arrested or brought before a U.S. court. If they violated U.S. law, the U.S.’s sole remedy was to request the sending nation to recall them. They…