Birthright citizenship

This is Joseph.

From Twitter:

This was followed by these excellent questions:

I see two interesting things here. We are using post-legislative comments of a single senator as being more decisive then the history of legal interpretation of the constitution. One of the interesting challenges of the modern era's "one simple trick" style of legal reasoning is that they often take the words and interpret them in a very eccentric way. 

The second is Andrew's good questions. It's obvious that illegal immigrants do not enjoy diplomatic immunity when present in the United States. Attempts to handle this are awkward:

So there are two different types of jurisdiction? In what other legal writing would they not define or expand upon this point. And I think it is pretty important that we think about this carefully, because the goal of the amendment was to enfranchise freed slaves. If there really were two types, don't you think people voting on the amendment would be the least bit curious as to which type it is? 

This is also an important caveat about taking a single person's view of what the legislation means"

"It is to be assumed-by a sort of suspension of disbelief-that two-thirds of the Members of both Houses of Congress (or a majority plus the President) were aware of those statements and must have agreed with them; or perhaps it is to be assumed by a sort of suspension of the Constitution-that Congress delegated to that personage or personages the authority to say what its laws mean."

I wonder if we could find single persons who had a different opinion on what the amendment meant? Now let's consider the word "jurisdiction". 

Also, political jurisdiction:

Political jurisdiction means a city, county, township or clearly identifiable neighborhood.

Territorial jurisdiction: 

Territorial jurisdiction is a court’s authority to preside over legal proceedings in a geographical area. Territorial jurisdiction is the scope of a federal and state court’s power and is determined by the governing laws and regulations of the area. 

 Here is a general legal definition:

1. The authority of a court to hear and decide a case. To make a legally valid decision in a case, a court must have both:

"subject matter jurisdiction," meaning the power to hear the type of case in question, and

"personal jurisdiction," meaning the power to make a decision affecting the parties involved in a case.

2. The power of a political body to make laws and govern.

3. The physical territory within, or within the control of, a political body.

It's obvious why diplomats and invading armies do not fall under the jurisdiction of the United States. And look at the wording of the 14th amendment itself:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

None of the comments made by the senator are reflected in the text, it uses the word jurisdiction and it seems deeply improbable that there is a different meaning to it. To use an analogy, look at this amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

What if I argued that in the case of this amendment, what was actually meant was that people should be allowed to keep their arms (the flesh and blood ones) attached to their bodies but it clearly did not apply to weapons? This would be obviously crazy, right? 

In the same sense, we have a common legal term and trying to use an eccentric definition (and creating a new area of law figuring out when the word jurisdiction is being used in different senses, or is it just this one inconvenient case?) seems like a poor way to build a legal system. But, as it is, you are stuck in a challenging position where you want the word to mean one thing in one context (are their children who are born in the United States citizens?) and another in a different context (are they subject to prosecution for crimes committed in the United States?). 

Finally, all of this ignores the great power of this amendment to establish citizenship for current residents. Instead of trying to show a continuous pathway of some claim, you only need to trace a person back to their own birth certificate to establish citizenship. No concerns that old birth certificates could be lost or that the documentation standards in 1894 are up to 2025 standards. It's odd to want to get rid of this highly effective way of dealing with old records.