Looking at the dissents (Justice Gorsuch) it appears that he would consider illegal immigrants’ kids are citizens, but kids of legal non-immigrants are not based on the fact that one is a temporary visitor and another is not!
Isn't this statement aimed at citizenship tourism or whatever its called?
I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.
They can't pick and choose "oh no they are in jurisdiction of law A but not in law B". Jurisdiction is a fundamental concept, there's no middle ground.
As for whether people are really doing birth tourism: sure, there might be some cases, but well, they are using something that the legal system allows. If the country feels like it doesn't want that happening, it needs to amend the Constitution.
(Also, let's not kid ourselves that the birth tourism thing is what conservatives care about... People doing that kind of thing are usually rich. The real target are poor illegal immigrants giving birth in the country.)
In that case, the proper approach is to look at other evidence of what the drafters meant, which is what both the majority and dissents did.
But it doesn't even matter, because in this case it is very clear what the drafters intended.
As an academic legal theory it’s entirely sterile. There’s little actual content within it and it demonstrates almost no consistent application of its supposed principles. When it ceases to deliver conservatives relatively painless victories, they’ll move on to something else.
That said, the originalist viewpoint is usually more along the lines of "we should seek to resolve that ambiguity in context of when, why, and with which references the framers who wrote it had in mind". Most originalists are unlikely to care what an argument about the current political environment implies.
"I have diplomatic immunity! Also I live on a reservation with their own police force. So no."
It's pretty clear that's what the amendment means. The only ambiguous situation I've found is if you're born just inside American waters on your way between foreign countries, but that's a really narrow case.
Birth tourism is definitely an issue for conservatives worried about China. Here's a 2019 ICE press release on prosecuting someone who was running a birth tourism ring to benefit Chinese government officials: https://www.ice.gov/news/releases/chinese-national-pleads-gu... The right is concerned that Chinese-American dual citizens born in the US but raised in China might, upon reaching adulthood, act with impunity as US-citizen agents of the Chinese Communist Party.
The US seems fully committed not to learn from its past. I suppose the expectations are for expulsions and/or west-coast internment camps for Chinese-Americans should there be a hot war between the US and China. It figures, since the MAGA is all for turning back the clock.
I think your take on this is overly complex and silly.
I hope that's an accurate summary?
> or to pay income tax
[0] https://www.irs.gov/individuals/international-taxpayers/taxa...
Specifically, of those two things you selected: the first would be horrendously problematic as the defining jurisdiction, since it would exclude persons ineligible for conscription (women, disabled persons, etc), and the second wouldn't even have the effect you are suggesting, since persons on non-immigrant visas sometimes _are_ subject to income tax. Heck, I don't even reside in the US, am not a citizen, and I do pay income tax on my RSUs. What gives?
As for the Chinese spy/saboteur/etc: treason will still be treason, and it's not like your country was above internment camps.
I mean, they shouldn't do this but clearly they can rule however they want with any pretext they want, because they answer to nobody but themselves. Who's going to tell them they can't do something? Who is left to appeal to?
It's a deeply corrupt and undemocratic institution, with virtually unchecked power to rewrite legislation and even the Constitution at a whim.
On the desirability side of things, it's been this way for the entire history of this country (the amendment just codified how things were already done) and it seems to have worked OK. But even if we were to decide that this is bad, it would need to be fixed with an amendment.
But today's climate is so hostile to any kind of rational discussion about how to change laws. One faction just wants to deny citizenship right now to any people they seem not "american enough" while the other faction cannot possibly entertain any change to the current system or else It would concede something to the populist faction
What is missing from this debate is the practical side of things. On the one hand, a permanent underclass of non-voting second class citizens is probably not a stable long term equilibrium.
On the other hand, allowing anyone to visit the US to have their baby and automatically receive all the benefits of US citizenship is also not a stable long term equilibrium.
The 14th amendment was written the way it was to create a bright line that was easy to implement. I'm sure they considered other ways of framing the issue. I think it's brilliant just the way it is.
What I see is one political faction who wants to convince everybody that their desired outcome was in the constitution all along and we're just misreading it. My suggestion is that, if that's really what the people want, then the current democratic process should be followed to amend the constitution in order to clarify whatever rule is unclear. There are good reasons in place for such changes to require a supermajority.
If a supermajority cannot be reached, then let's have a discussion and figure out how to make everybody's concerns heard.
But that's so completely against the current populistic climate where the most boisterous and outraging claims are rewarded; so I know this won't happen; but that's what I think _should_ happen.
As many as 26,000 mothers do it (birth tourism) every year.
CIS analyzed U.S. Census Bureau data to track the number of foreign-born mothers who gave birth in the United States. Researchers cross-referenced those births against federal figures of temporary visitors. They isolated foreign mothers who arrived on short-term visas, gave birth, and did not establish long-term residency in the U.S. CIS concluded that 20,000 to 26,000 births annually are attributable to women arriving on short-term tourist visas specifically to obtain citizenship for their children.
That was back in the early 2010s, I don’t think it was prevalent then (I just had too many friends with the money to do that). I don’t think it is common now because Chinese citizens have more confidence about China and so aren’t looking for backup plans anymore.