Are the children of illegal immigrants... (14th amendment)

[ag]

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.

Michigan Senator Jacob Howard insisted upon the addition of the text in bold specifically because he wanted to make it clear that the mere "accident of birth" in the United States was not sufficient to justify citizenship. "[The amendment] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

Despite that addition, the Supreme Court has interpreted the Fourteenth Amendment as granting citizenship to every person born in the United States.

What do you think is the proper interpretation?

Your statement that all foreigners's children are automatically US citizens is not true. Example: a child of the Canadian ambassador born in a US hospital might not be eligible, since at the time of birth his parents have diplomatic immunity and are not, in a sense, subject to US jurisdiction.  On the other hand, illegal immigrants are clearly subject to the jurisdiction of the United States, since otherwise it would have been impossible to prosecute them for murder.  So, your choice: either their children are US citizens, or you can't prosecute them in a US court for any crime (since that is the exact interpretation of being "subject to US jurisdiction"), or you change the constitution.

In fact, the highlighted text (as well as the intent you cite) is very clear: the citizenship by birth is tied to the issue of jurisdiction, not of legality of presence in the United States. This does exclude diplomats, who cannot be prosecuted in US courts without agreement of their home governments, but not anybody else. Had the Congress wanted to exclude children of illegal immigrants, it could clearly state "children of parents legally present in the United States".  The fact that it chose to say "subject to the jurisdiction" and not "legally present" is a very clear statement of intent.  Once the courts ruled that illegal immigrants can be tried in US courts under US laws (i.e., are subject to the jurisdiction of the US), there is no ambiguity in interpretation whatsoever.

[ag]

LOL. Ag is so clueless.

"Subject to the jurisdiction thereof" is a common law concept. It has nothing to do with whether you can prosecute that person for murder. A state can prosecute any person for murder, since common law is not binding upon sovereign powers.

Well, I agree, I oversimplified. However, US courts did rule repeatedly in other contexts that illegal immigrants are subject to US jurisdiction.  For instance, if illegal immigrants weren't subject to US jurisdiction they could legally engage in trade with Cuba from the US, without violating US trade embargo.

Same applies to (non-immigrant) foreigners legally present in the US: if a foreign student at a US school is found to have visited Cuba on vacation and brought in some cigars, not only would his visa likely be annulled (that US can do without reason, so there is no violation here), but he would also be fined. Since the US embargo explicitly applies only to those "subject to US jurisdiction" (US historically has been opposed to "secondary embargoes" such as those that Arabs tried to impose on Israel, so this is a very explicit position of the US gov't), such a fine would have been illegal under US law if the student were not subject to US jurisdiction.

Even simpler: foreigners are not allowed to bring into the US Cuban cigars for their personal consumption. If they were not subject to US jurisdiction, there would have been no basis for this.

It is a long-standing position of the United States government that all foreigners physically present in the US are subject to its jurisdiction (with possible exception of foreign diplomats). The courts have repeatedly agreed to this in numerous contexts. It would be impossible to separate the citizenship context without affecting the rest.

[ag]

Here is what US State Dept. has to say about it (at http://usinfo.state.gov/products/pubs/constitution/amendment.htm)

"COMMENTARY:
The principal purpose of this amendment was to make former slaves citizens of both the United States and the state in which they lived and to protect them from state-imposed discrimination. The terms of the amendment clarify how citizenship is acquired. State citizenship is a by-product of national citizenship. By living in a state, every U.S. citizen automatically becomes a citizen of that state as well. All persons naturalized (granted citizenship) according to law are U.S. citizens. Anyone born in the United States is also a citizen regardless of the nationality of his parents, unless they are diplomatic representatives of another country or enemies during a wartime occupation. Such cases are exceptions because the parents are not "subject to the jurisdiction" of the United States. The amendment does not grant citizenship to Native Americans living on reservations, but Congress has passed a law that did so."

[ag]

It is common practice among nations to give citizenship to the children of their citizens, even if they happen to be visiting another nation at the time of birth. Would you go as far as to argue that a child who is a citizen of another nation is not "subject to a foreign power"?

Not at all common practice (at least, not universal). Not that it would matter, but my daughter was born in Mexico. While both myself and my wife at the time were nationals not of Mexico, but of another country (which I will leave unnamed), she had to be naturalized as a citizen of that country, which she was, at the age of some 2 months, following our formal petition to the Head of State of that country.  Had we chosen not to petition the foreign government on her behalf, the naturalization would not have happened. Her Mexican citizenship, on the other hand, was immediate by birth.

In any case, this is irrelevant, since the relevant law here the US common law.  As has been made very clear by Emsworth, this law disregards any possible outside allegiance (which might or might not exist by the national law of some other country - in many countries it does not, in fact, exist) and views any person born in the US (with clearly defined exceptions) as owing allegiance to the US and US alone. 

Even in case of US not all children of US citizens born abroad are automatically citizens by birth.  If I remember correctly, the legal provision requires at least one US-citizen parent to have lived some number of years in the US (an American colleague of mine actually had to prove that, by digging out his college transcripts and old tax returns, I think).  Or, may be, the key is that the parent is US citizen by birth - I don't really remember. If that is not satsified, the child might still be naturalized as an American, but is not American by birth. This legal provision is established by law and could be changed, so, in principle, there is nothing that prevents the Congress from requiring naturalization of all foreign-born children of US citizens.

From this point my post is really irrelevant to the original question - just some extra thoughts on the matter.

I don't see the practical point of changing the existing practice.  Generally speaking, current US immigration practice actually punishes the non-citizen parents of US-citizen kids, irrespective of their immigration intent.  The child cannot "sponsor" his/her parents for legal immigration to the US until s/he turns 21 (after which it takes a lengthy family reunification process to achieve), but existence of such a child is viewed as evidence of immigration intent, which severely prejudices issuance of non-immigrant visas.  Furthermore, existence of such a child provides no protection whatsoever from deportation for his/her parents (the existing provision that deportation might be waived to avoid causing "undue hardship to a US citizen" has been interpreted in the sense that it is not an undue hardship for the child to either follow the parents to their home country or to be left without them in the US).  If anything, having a US citizen child makes a foreigner's life in the US more, not less, difficult. 

So, the only incentive a foreigner has for giving birth in the US is the future welfare of the child.  Given that the child is likely to be growing up culturally American (despite some claims to the contrary, most serious studies show that second-generation Americans today are as likely or more likely to be assimilated into the US culture as their predecessors 100 years ago), what the current practice avoids is creating a subclass of US-born and bred illegal non-citizens (they can hardly be called immigrants, since they never migrated). In fact, in many cases they might be impossible to deport, since, unless they voluntarily apply for some foreign citizenship, if they are not American, they would be stateless.

As an interesting (though irrelevant) contrast, even though at the time of birth of my daughter I had only been a non-immigrant foreign worker in Mexico (an equivalent of H1-B non-immigrant visa in the US) for about 2 years, once she was born I could immediately apply for the citizenship and it took me only about a year and a half to be formally naturalized as a Mexican (without ever having been a legal non-citizen immigrant in the country).  There are countries with more relaxed laws!

Of course, one can take the opposite extreme. In Switzerland even a third-generation Swiss-born individual has to apply for naturalization after at least some 20 years of residence and have his/her name put on the popular ballot in his/her canton. They actually vote for every single naturalization (and much of the time they reject)! And in places like Korea and Japan naturalization is all but impossible (there's been some relaxation in Japan, but very minor), even after many generations in the country.  And in Israel, not only is a child of legal foreign workers an illegal immigrant at birth, but his/her existence is grounds for revoking the parents' work visa, instantly turning them into illegal immigrants!

Just keep in mind, that in Japan, for instance, the result of their immigration practice has been a large number of North Korean-citizen residents, who go to North-Korea financed schools and express wholehearted allegiance to the Dear Leader.  These people (Japanese-resident in 3-4 generations - since before WWII) would have long been completely assimilated, but for the rejection by the country of their birth.

[ag]

Once again, children of citizens of many countries born outside those countries are not citizens of the same at birth. If they are not US citizens, then, unless they (or their parents) actively petition for naturalization are stateless, citizens of no country whatsoever. Clearly, not being citizens of any other country, they owe allegiance to none.

Again, it is irrelevant since US courts have consistently ruled that from the standpoint of the US law their only allegiance is to the US, whatever some other country says.

[ag]

Well, I'll have to concede that I lost this debate. I do think we should levy a 200% flat tax on these people until they renounce their citizenship, though.

How many provisions of US constitution would that violate?