The source document is the 14th amendment. Before the end of the Civil War, the last word on citizenship was Scott v. Sandford.
That Missouri Compromise bit in Scott led directly, unabated to the quarterback, to 600,000 dead Americans, BTW.The majority held that “a negro, whose ancestors were imported into [the U.S.], and sold as slaves,” whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court. Because the Court lacked jurisdiction, Taney dismissed the case on procedural grounds.
Taney further held that the Missouri Compromise of 1820 was unconstitutional and foreclose Congress from freeing slaves within Federal territories. The opinion showed deference to the Missouri courts, which held that moving to a free state did not render Scott emancipated. Finally, Taney ruled that slaves were property under the Fifth Amendment, and that any law that would deprive a slave owner of that property was unconstitutional.
https://www.oyez.org/cases/1850-1900/60us393
After the North won the war, Congress set about figuring out the reconstruction amendments. The first sentence of the 14th was drafted as a direct and unequivocal overruling of the holding and the premise of Scott. The idea of an end-around that the war did not change Scott and the citizenship of former slaves and their children was a real concern, and the amendment was designed to put an end to that argument, once and for all.
Here are a couple of interesting pieces from Daniel Horowitz:
Here’s what the Supreme Court actually said about ‘birthright’ citizenship
Nothing, not even birthright citizenship, trumps consent of the nationRep. James F. Wilson, R-Iowa, the chairman of the House Judiciary Committee back in the 1860s who helped draft the 14th Amendment, spoke emphatically that it was “establishing no new right, declaring no new principle.” “It is not the object of this bill to establish new rights, but to protect and enforce those which belong to every citizen,” declared Wilson in 1866.
The notion that an amendment designed to grant freed slaves who lived here for centuries and had no allegiance to any other jurisdiction the basic rights of American citizens would be used as a tool to prevent Congress from regulating citizenship for immigrants of all stripes is scandalous.
The first sentence of the 14th Amendment: “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.” We need not speculate what “subject to the jurisdiction thereof” means. As Sen. Lyman Trumbull of Illinois, the chairman of the Senate Judiciary Committee, said during the debate over the 14th Amendment, “subject to the jurisdiction” of the United States means subject to its “complete” jurisdiction, “not owing allegiance to anybody else.” Of course persons present inside American territory are subject to our partial jurisdiction in the sense that they have to obey our laws and are subject to criminal prosecution for disobeying our laws. But when congressional drafters added the second phrase of jurisdiction to the citizenship clause, they were clearly limiting citizenship to those who, in the words of one of the key drafters, were subject to “complete” jurisdiction as Americans.
Sen. Jacob Howard of Michigan, the principle author of the citizenship clause of the 14th Amendment, explicitly said that candidates for citizenship must be born here and not owe allegiance to any another authority. Echoing Trumbull, he said “a full and complete jurisdiction” means “the same jurisdiction in extent and quality as applies to every citizen of the United States now.” He made it clear that allegiance “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.”
It’s not until an immigrant completes his naturalization process that he swears an oath with the emphatic commitment to “absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign … state.” The citizenship oath with that verbiage has been in use since the Founding of the country. Therefore, when the framers of the 14th Amendment spoke of “full and complete” jurisdiction, “the same jurisdiction in extent and quality as applies to every citizen of the United States now” and “not owing allegiance to anybody else,” they were clearly defining a legal permanent resident who is prepared to become a citizen. That state of being is regulated by the naturalization process and is subject to congressional regulation. But certainly, we can agree this cannot apply to illegals or those on temporary visas.
I'm not sure if an executive order will do much more than get the issue before SCOTUS, but the same can be said of the preferred (IMNSHO) method of having Congress act. Either way, we'll see what Justice Gorsuch and Justice Pabst have to add to the discussion.t’s time to reclaim our birthright. When an invading army comes to our border, can its general’s pregnant wife have the baby in our country and demand citizenship? Can our nation do anything to stop people from evading the Border Patrol, going to a hospital, and forcing a citizen upon us against our consent?
If you believe the answer is “no,” you don’t deserve to live in a sovereign nation. As Harry Reid said in 1993, “no sane country” would do such a thing. Moreover, anyone who wants to continue the practice of allowing stolen sovereignty is demonstrating that they want continued illegal immigration and that the amnesty debate is not about the logistical question of what to do with those already here.
