“The original meaning of the [jurisdiction] phrase means not owing allegiance to another country, because it referred to the jurisdiction that a foreign government maintains over its citizens. This is why the Supreme Court held in Elk v. Wilkins (1884) that a Native American was not a citizen merely by reason of his birth within the United States, because he ‘owed immediate allegiance to’ his tribe and not the United States.”
“Congress has the authority and the obligation to reverse this practice,” Vitter said.
The Congressional Research Service looked at the issue in two separate reports. In 2011, legislative attorney Jack Maskell wrote about birthright citizenship in the larger context of citizenship claims involving John McCain and Barack Obama.
Maskell pointed to the British common law concept of jus soli (meaning “law of the soil”) as the precedent for the 14th Amendment’s Citizenship Clause and a later Supreme Court decision, United States v. Wong Kim Ark.
“There appears to be little scholarly debate that the English common law at the time of independence included at least all persons born on the soil of England (jus soli, that is, “law of the soil”), even to alien parents, as ‘natural born’ subjects (unless the alien parents were diplomatic personnel of a foreign nation, or foreign troops in hostile occupation),” Maskell said.
In 1898, Justice Horace Gray’s majority opinion in Wong Kim Ark made it clear that the 14th Amendment’s Citizenship Clause fell in line with British and American common and settled law when it came to people born in the United States as having claims to citizenship, with the exceptions of children of foreign ministers, enemy combatants on American soil and people on foreign public ships.
Gray said that Wong Kim Ark, having “a permanent domicil[e] and residence in the United States,” became ”at the time of his birth a citizen of the United States,” even though his parents were Chinese citizens.
Gray also dismissed the relevance of the Elk decision to birthright citizenship in this case, and he also stated that the term “subject to the jurisdiction thereof” pertained to citizenship claims made by the children of diplomats and hostile combatants.
A second CRS legislative attorney, Margaret Mikyung Lee, looked specifically at birthright citizenship in 2010 and drew similar conclusions about the history of birthright citizenship laws. But Lee said that some arguments were being made that the Wong Kim Ark court and the 14th Amendment’s drafters didn’t consider the concept of illegal immigrants, because that wasn’t a requirement to do it at the time.