The Key Phrase: ‘Subject to the Jurisdiction Thereof’
Howard and Trumbull see the phrase “and subject to the jurisdiction thereof” as key in determining the limits of citizenship. In a response to Anton in the Washington Post, Elizabeth Wydra dismisses the importance of this phrase as a fixation of those who “deny the plain meaning of the citizenship clause.”
However, the meaning of this phrase was the central topic of debate precisely because it qualified who was to be considered a citizen in the citizenship clause. It is this phrase that made it clear that Indians were not included because even though they were born on American soil, they were not under the full and complete jurisdiction of the United States.
For Sen. Trumbull, “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.” Senator Johnson agreed, stating that he knows “of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”
Jurisdiction, says Sen. Howard, “ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States […], that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” In other words, the citizenship clause does not cover those who are not under the United States’ full and complete jurisdiction.
Williams clarifies this point at the end of the debate. “In one sense,” he says, “all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States [they are still expected to obey the laws of the land and be punished for breaking them], but they are not subject to the jurisdiction of the United States in every sense [they are still subject to the jurisdiction of a foreign government to which they owe allegiance].”
Two-thirds of the senators present for the vote agreed that no further clarification was needed to make sure the amendment excluded Indians. Only those under the full and complete jurisdiction of the United States are included in the clause. The fact that this amendment did not authorize birthright citizenship as it exists today is demonstrated further by the fact that Native Americans did not gain U.S. citizenship en masse when this amendment passed, in 1868, but 56 years later, with an act of Congress.
Regardless of whether we should have birthright citizenship today or not, it is clear that the framers of the Fourteenth Amendment did not intend individuals not subject to the full and complete jurisdiction of the United States to be included as citizens. It is hard to believe that they would have accepted our modern conception of “birthright citizenship,” in which any person, regardless of whether they are in the country legally, and regardless of their parents’ citizenship, can claim U.S. citizenship.
It is clear that individuals within the territory of the United States, under a tourist or student visa, or who have crossed the border illegally, are not under the full and complete jurisdiction of the United States, but are still under the jurisdiction, at least in part, of a foreign nation.
...
http://thefederalist.com/2018/07/23/no-fourteenth-amendment-not-authorize-birthright-citizenship/
