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The US legal system defined everyone in its soil to be under its jurisdiction, _except diplomats_, because of diplomatoc norms.
If an illegal immigrant kills a person while in the US, they get tried according to US law. If a diplomat kills a person in the US, they do not get tried because the US has no jurisdiction over that diplomat.
> You’re saying we need to look to the international meaning of some Latin phrase (“jus soli”).
Discussion of law discussion that uses comparison with international standards is quite common in every legal system. The sentence regarding the murder of a relative of mine had citations of Italian law, German law, some Spanish doctrine. It was also peppered with Latin terms and expressions, because Roman law had quite an influence in all Western legal systems.
So yeah, sometimes discussions of law can be complicated. This one... Ain't.
Diplomats have diplomatic immunity, which is not the same thing as jurisdiction. For example, diplomatic immunity doesn't extend to a diplomat's commercial activities: https://www.law.cornell.edu/wex/diplomatic_immunity. So if a diplomat sells you fake Hermes bags passing them off as the real thing, you can sue them in a U.S. court. And the U.S. court will have jurisdiction.
> Discussion of law discussion that uses comparison with international standards is quite common in every legal system... So yeah, sometimes discussions of law can be complicated. This one... Ain't.
We have to look to international standards concerning latin phrases to understand what Americans meant by the phrase "subject to the jurisdiction," but that isn't "complicated?" If you say so.
It really isn't, it's literally what lawyers do for a living.
For example, in 2013 several Russian diplomats were indicted for Medicaid fraud: https://abcnews.com/US/russian-diplomats-scammed-medicaid-15.... They had diplomatic immunity, so the U.S. had to get the Russian government to waive the diplomatic immunity. But if Russia waived the immunity, the prosecution could proceed even though the diplomats had diplomatic immunity at the time the crime was committed.
Moreover, diplomats are subject to civil liability for commercial activities beyond their office: https://www.law.cornell.edu/wex/diplomatic_immunity. Diplomatic immunity doesn't protect them from suits in U.S. courts related to such activities.
So reading "subject to the jurisdiction thereof" to mean "subject to the law and the rule of the courts" proves too much. The U.S. and its courts have some level of jurisdiction over everyone and everything on U.S. soil. So that makes the phrase "born or naturalized in the United States, and subject to the jurisdiction thereof" redundant--the words "subject to the jurisdiction" aren't doing any work that the phrase "in the United States" isn't already doing.
This has always been like that. All jus soli countries do it.
> They had diplomatic immunity, so the U.S. had to get the Russian government to waive the diplomatic immunity.
Your example literally spells out that THE ONLY WAY they would be subject to the law and rule of the courts is if their immunity was removed.
Their immunity was total.
A person who is not under jurisdiction (e.g., putatively, the illegal immigrants), cannot be prosecuted.
That doesn’t quite work, because diplomats and invaders do have to follow US laws and can be tried in U.S. courts. In Ex Parte Quirin, for example, nobody doubted that German saboteurs on U.S. soil could be prosecuted in civilian courts. And while diplomats have immunities in certain areas, they can be sued under U.S. law in U.S. courts for commercial activities conducted in the U.S.
If “subject to the jurisdiction” means the U.S. has some sort of jurisdiction over a foreign national, then children of ambassadors and foreign soldiers would have birthright citizenship. So there must be an additional step or wrinkle to get from the word “jurisdiction” to the exceptions that are recognized.
Whether the U.S. has jurisdiction over territory has nothing to do with whether it can enforce its jurisdiction as a practical matter. If someone blew up a court in a particular district, that would not mean that the court, as a legal entity, ceased to have jurisdiction. By your reasoning, if Mexico invades Texas, children of Mexican servicemen born on U.S. soil would qualify as U.S. citizens. I don't think that's correct.
> I think you’re stretching the definition of jurisdiction with the diplomat stuff. Sure they’re expected to follow laws, but with only a few exceptions if they break laws they just got sent home, not imprisoned.
Being immune from prosecution is different from not being subject to the law. Diplomats are subject to the laws just like anyone else. They have immunity from prosecution for crimes. But the U.S. can request the immunity be revoked, and if that happens, they can be prosecuted for crimes that occurred while the had immunity.
And diplomats can be sued in civil cases in U.S. courts for their commercial activities. They are very much subject to the jurisdiction of U.S. courts, even if we can't always prosecute them for crimes.