I don’t see why jus soli shouldn’t equate to citizenship for any child born on American soil, even including diplomats. I’m talking about the principle of jus soli not the 14th amendment as written.I don’t understand why birth tourism is a problem. English common law re birthright citizenship did not include non residents. It’s part of the status quo is because of administrative laziness, not deliberate action. I have seen no logical argument why even a textualist would find citizenship in a birth tourist case. Textualists certainly wouldn’t find citizenship for a female who merely wants to see the Grand Canyon. What is the difference?
I think the same argument could be made about illegal immigrants. But I acknowledge that is more ambiguous if the illegal intends to establish residency. Then the question becomes can such a person legally establish residency.
It would even put illegal immigrant parents in a quandary. If they want proof that their child was born on American soil, they expose themselves to deportation.
Before the 14th Amendment, the Common Law rule was that everyone born within the jurisdiction of the sovereign was a citizen, with very few exceptions: children of diplomats, occupying enemy forces, and the Indian tribes. These exceptions were based on the legal theory that these groups of people were not actually fully under the jurisdiction of the United States, but under the jurisdiction of either a foreign power, or their tribal authority, respectively.
The 14th Amendment was primarily passed to ensure that no state could refuse to extend this Common Law interpretation to former slaves. Before, some courts had ruled that the law did not apply to the children of enslaved people (for obvious practical reasons), and therefore the former slave states could use this legal precedent to prevent recognition of citizenship of the newly freed slaves.
However, outside the slave issue, the very broad interpretation of birthright citizenship, with its very few exceptions, was already recognized.
The English birthright citizenship common law included a residency factor.
AI:
Under English common law, the principle of birthright citizenship (jus soli or "right of the soil") generally granted citizenship to anyone born within the king's dominion, regardless of the status of their parents. However, historical common law did contain a narrow, widely recognized exception for children born to individuals who were not permanently resident within the territory, specifically including foreign diplomats or invading forces. [1, 2, 3]
@co-hoosier at the same point, in America, that wasn't the case. Pretty much during most of the 1800s, people hopped off the boat here and went about their business without ever becoming citizens. In theory, some of us may not be citizens today if all of our descendants did that.
From Google AI:
Yes, in the 1800s,it was very common for immigrants to come to America and never apply for citizenship. Early US policy encouraged immigration with few restrictions. Many immigrants lived, worked, voted in some states, and died as foreign nationals without ever going through the legal process of naturalization.
Further from AI:
Yes, children born in the U.S. to immigrant parents were generally considered citizens at birth, even if their parents never applied for citizenship. This principle, known as jus soli (right of the soil), has deep roots in English common law and was formally enshrined in the U.S. Constitution during the late 1800s.
I never applied for citizenship. Who has?
The English birthright citizenship common law included a residency factor.
AI:
Under English common law, the principle of birthright citizenship (jus soli or "right of the soil") generally granted citizenship to anyone born within the king's dominion, regardless of the status of their parents. However, historical common law did contain a narrow, widely recognized exception for children born to individuals who were not permanently resident within the territory, specifically including foreign diplomats or invading forces. [1, 2, 3]
That was AI at its worst. Calvin's Case (Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608)), addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered "subjects" in England. Calvin's Case determined that all persons born within any territory held by the King of England were to enjoy the benefits of English law as subjects of the King. A person
born within the King's dominion owed allegiance to the sovereign and in turn was entitled to the King's protection. Jus Solis (common law principles).
Two years before that, the king of England granted to the colonists of Virginia a charter that guaranteed them the "rights" of Englishmen: The colonists were to "have and enjoy all Liberties, Franchises, and Immunities... to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England". So that is an example of positive law.
There was no permanent residential requirement.
I presume that there were ways to have citizenship revoked, much like in the US where citizenship can be revoked (1) Renouncing U.S. nationality before a U.S. diplomatic or consular officer abroad; (2) Taking an oath of allegiance to a foreign state; (3) Serving in the armed forces of a foreign state that is engaged in hostilities with the U.S
Shoving carrramrod into a locker since 2024.
Begging the question.
Immigrant parents are by definition not tourists. Are illegal entrants considered immigrants?
English common law always recognized an exception for diplomats and invading forces. I think many treat those two situations as exhaustive and not examples.
@co-hoosier doesn't matter, it is crystal clear that the people of the time firmly believed being born here made one an American. There is nothing that suggests the people writing the 14th wanted to change that. If they only intended to naturalize slaves they had the language skills to do that.
Now that is addressed to the "plain reading" and "original intent" people. No way, none, one can fall into those categories and believe Trump's EO is constitutional while remaining consistent to those beliefs. History is seldom this clear. From our founding all that has been required is to be born here (and not to a diplomat and for some of the period, be White). I suspect the foreign invader issue even wasn't excepted though we would have to research 1812. I suspect a lot of children of British soldiers were made American by virtue of living here when the Revolution ended.
We also have to define illegal immigrants. I have posted the precise law from Cornell's library. It is 100% legal to enter the US and apply for asylum inside the US. That is a law passed by congress. Many of those being arrested at immigration hearings, and thus considered "illegal" did exactly that. Just to reinforce, below is from Immigration Services official website, bolding mine. If you enter this way, are you illegal:
Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:
- Race
- Religion
- Nationality
- Membership in a particular social group
- Political opinion
You may only file this application if you are physically present in the United States, and you are not a U.S. citizen.
At this time, the option to file an online Form I-589 is only available for certain affirmative asylum applicants. Affirmative asylum applicants may not file an online Form I-589 if they:
- Are in proceedings in immigration court or before the Board of Immigration Appeals;
- Are an unaccompanied alien child as defined in 6 U.S.C. § 279(g) and are in removal proceedings;
- Are among the categories of applicants who must currently file by mail with the Asylum Vetting Center as outlined in the Special Instructions section of ourForm I-589webpage; or
- Already submitted a Form I-589, which is still pending with USCIS.
If you are eligible for asylum you may be permitted to remain in the United States. To apply for asylum affirmatively or defensively, file a Form I-589, Application for Asylum and for Withholding of Removal, within 1 year of your arrival to the United States. Visit ourObtaining Asylum in the United Statespage for more information on affirmative and defensive filings.
You may include your spouse and children who are physically present in the United States as dependents on your affirmative or defensive asylum application at the time you file or at any time until a final decision is made on your application. To include your child as a dependent on your application, the child must be under 21 years old and unmarried. For more information see our Form I-589, Application for Asylum and for Withholding of Removalpage.
If you were placed in expedited removal proceedings, you received a positive credible fear determination, and USCIS retained your asylum application for further consideration in an Asylum Merits Interview, please visit ourAsylum Merits Interview with USCIS: Processing After a Positive Credible Fear Determinationpage.
If you have an asylum application pending with us, you can check the status of your application atCase Status Online. You will need the receipt number that we provided you after you filed your application.
https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum
And from Cornell, bolding mine:
(1)In generalAny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.
(2)Exceptions(A)Safe third countryParagraph (1) shall not apply to analienif theAttorney Generaldetermines that thealienmay be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of thealien’s nationality or, in the case of analienhaving no nationality, the country of thealien’s last habitualresidence)in which thealien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where thealienwould have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless theAttorney Generalfinds that it is in the public interest for thealiento receive asylum in theUnited States.
(B)Time limitSubject to subparagraph (D), paragraph (1) shall not apply to analienunless thealiendemonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in theUnited States.
https://www.law.cornell.edu/uscode/text/8/1158
So, by law, one can enter the US and stay for up to one year before applying for asylum. Are they illegal?
For the record, I have no problems altering that law to far less than 1 year. Or even require applying at point of entry. But a lot of people called "illegal" are best "undocumented".
If an English Lord came here in 1870 To shoot some buffalo, admire the mountains in Estes Park, while his wife drops a kid, then they return to Merry Old England, never to return, the kid is a U.S. citizen?
What about the English secret service people who worked in NYC during the dark days of early WWII, and returned when the coast was clear, are their kids citizens? They weren’t considered diplomats.
Nothing in this thread has convinced me that offspring of a tourist can, or should be, be a citizen.
@co-hoosier it seems, because of speed of travel, Canadians would be more likely. I asked Google AI:
- Border Crossing: Formal, stringent immigration records only began to emerge at the end of the 19th century.
- Birthright Citizenship: The 14th Amendment, adopted in 1868, established that anyone born in the U.S. is a citizen, which was applied to visitors.
- Child’s Status: The baby would have been a U.S. citizen by birth (jus soli) while likely retaining British/Canadian subject status through the parents.
- Practicality: There was little to no distinction between a "visitor" and an "immigrant" until the turn of the century, meaning no specialized visas or birth reports were typically required.
If an English Lord came here in 1870 To shoot some buffalo, admire the mountains in Estes Park, while his wife drops a kid, then they return to Merry Old England, never to return, the kid is a U.S. citizen?
What about the English secret service people who worked in NYC during the dark days of early WWII, and returned when the coast was clear, are their kids citizens? They weren’t considered diplomats.
Yes and yes.
In today's world, it's bad policy.
But I also think it's bad policy to exclude naturalized citizens from the presidency.
Nothing in this thread has convinced me that offspring of a tourist can, or should be, be a citizen.To have a real discussion we should come to some agreement on what exactly you mean by tourist and resident. That aside...
I'm thinking you're focused on the mother as opposed to the newborn. More specifically, you're focused on the mother's current and future life intent. Plus you include the legality of the mother's intent to continue living in the US if she has that intent.
In contrast, I focus on the newborn only, independent of the mother. I think the 14th shares my focus. Any newborn is born in one and only one location (excluding devil's advocate exceptions like giving birth while a train crosses national borders). If that location is the United States of America we Americans have always proudly, like the English King, welcomed that newborn into our fold, as it were, as an American citizen.
You in contrast seem to be hellbent on excluding those newborns from our warm embrace as if the truth of that time, place, form, and event never occurred and we Americans are too weak and powerless to accept these wonderful new humans into our nation.
We have always been a proud nation. A nation established to evolve to ever higher states. Fear not, oh COH, the future.
Arnold?! No way.If an English Lord came here in 1870 To shoot some buffalo, admire the mountains in Estes Park, while his wife drops a kid, then they return to Merry Old England, never to return, the kid is a U.S. citizen?
What about the English secret service people who worked in NYC during the dark days of early WWII, and returned when the coast was clear, are their kids citizens? They weren’t considered diplomats.
Yes and yes.
In today's world, it's bad policy.
But I also think it's bad policy to exclude naturalized citizens from the presidency.
I would have happily taken Arnold over either of the last two presidents we've had.
My parents live in California and are about as liberal as you can get without crossing into the screaming pink-hat-cat-lady level of crazy. My dad had nothing but good things to say about Arnold while he was governor.
All good points. It's just my appetite for germanic/austrian born types has been drumpfed. It's a red line for me.I would have happily taken Arnold over either of the last two presidents we've had.
My parents live in California and are about as liberal as you can get without crossing into the screaming pink-hat-cat-lady level of crazy. My dad had nothing but good things to say about Arnold while he was governor.