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The argument is which is correct to use Jus Soli or Jus Sanguin
The Congressional scholars who did the research for Congress disagree with Trump
Historical Development
Jus Soli Doctrine before the Fourteenth Amendment
There are two basic doctrines for determining birthright citizenship. Jus soli is the principle that a person acquires citizenship in a nation by virtue of his birth in that nation or its territorial possessions.2 Jus sanguinis is the principle that a person
acquires the citizenship of his parents, “citizenship of the blood.”3 The English common law tradition prior to the Declaration of Independence, which was the basis of the common law in the original thirteen colonies and which was adopted by most of the states as the precedent for state common law,4 followed the jus soli doctrine.5 Persons born within the dominion of the sovereign and under the protection and ligeance of the sovereign were subjects of the sovereign and citizens of England; this included persons born to “aliens in amity” who owed temporary allegiance to the sovereign while in his territory.6 The exceptions were persons born to members of a hostile occupying force or to diplomats representing another sovereign.7 The reason was that the children of a hostile occupying force did not owe allegiance to nor were born under the protection of the proper sovereign of the occupied territory. The children of diplomats, although enjoying the temporary protection of the sovereign while in his/her dominions, actually owed allegiance to and had a claim to the protection of the sovereign whom their parents represented at the court of the sovereign in whose dominions they were born. All civilized nations recognize and assent to the immunity of foreign diplomats from their jurisdiction, without which a foreign ambassador might not be able to effectively represent the sending sovereign, but it would be “inconvenient and dangerous to society . . . if [private individual aliens] did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.”8
The original framers of the U.S. Constitution did not define citizenship of the United States, although the Constitution required that a person have been a citizen of the United States for seven years to be a Representative and for nine years to be a Senator,9 and that a person be a natural-born citizen or a citizen at the time of the adoption of the Constitution in order to be eligible to be President (and therefore, Vice-President).10 The Naturalization Act of 1790 and subsequent Acts until the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment did not define citizenship by birth within the United States.11 These naturalization acts specified that only free white persons could be naturalized. As a result of the absence of any definition in the Constitution or federal statutes of U.S. citizenship by birth in the United States, citizenship by birth in the United States generally was construed in the context of the English common law.12 This provided the frame of reference and definition of “citizenship” that the framers of the Constitution would have understood and also provided the pre-independence precedent for state common laws. The acquisition of citizenship by birth and by naturalization in the United States depended on state laws, both statutory and common law, until the enactment of the naturalizationlawin1790.13 TheNaturalizationActof1790,enactedpursuanttothe Congress’ powers under the Constitution,14 clearly established the definition of citizenship by naturalization, but Congress’ silence on the issue of citizenship by birth in the United States caused some confusion and disagreement as to what the appropriate definition was. For example, some persons rejected the idea that English common law provided the proper rule for citizenship by birth in the United States.15 And until the Civil War, some eminent jurists and legal scholars believed that there was no real citizenship of the United States separate from citizenship in a state; that is, a person was a citizen of a state which was part of the Union, therefore a person was a citizen of the United States by virtue of his citizenship in a state.16
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