From a few years ago
Among them are John Eastman, a former dean at Chapman University’s Fowler School of Law; Kris Kobach, Kansas’ secretary of state and a former professor of constitutional law at the University of Missouri–Kansas City; and Peter Schuck, a professor of law at Yale University.
All three seize on the language in the 14th Amendment that requires not just that someone be born within the United States, but also be “subject to the jurisdiction thereof.”
In a New York Times op-ed, Eastman, a founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, argued that ” ‘Subject to the jurisdiction’ means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that ‘subject to the jurisdiction’ of the United States meant not ‘owing allegiance to anybody else.’ ”
The Supreme Court has never ruled on the issue of whether children born to people in the country illegally are covered by the 14th Amendment. “It is long past time to clarify that the 14th Amendment does not grant U.S. citizenship to the children of anyone just because they can manage to give birth on U.S. soil,” Eastman argued.
Kobach, who also acts as “of counsel” for the Immigration Reform Law Institute, the legal arm of the Federation for American Immigration Reform, which calls for more restrictive immigration laws, argues that “subject to the jurisdiction thereof” means that only children “born to parents who have allegiance to no foreign power” are subject to the “complete jurisdiction” of the U.S. That language, therefore, does not cover children of parents in the country illegally, he argues.
In an op-ed for the Los Angeles Times, Schuck argues that the founders envisioned citizenship as a “consensual” endeavor, and that the phrase “subject to the jurisdiction thereof” is a “consensual idea.”
Schuck, Nov. 21, 2014: So what does “subject to the jurisdiction” mean? The Supreme Court long ago decided this phrase confers birthright citizenship only on those who are “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance” at birth. In that case, the court denied citizenship to an Indian born on a reservation but living elsewhere, because he was subject to tribal jurisdiction even though Congress held power over his tribe. (Indians became citizens only in 1924, by statute.) Later, the court granted birthright citizenship to the U.S.-born child of Chinese parents because her parents were here legally.
But most constitutional scholars disagree.
Here's one
Garrett Epps, a professor at the University of Baltimore School of Law and a constitutional law expert, says those who argue against the need for a constitutional amendment are wrong.
“In my opinion, the arguments used to question the natural interpretation of the birthright citizenship rule are at best strained and at worst thoroughly dishonest,” Epps said. “That being said, of course, if Trump became president and appoints Judge Judy and God knows who else, the Supreme Court is perfectly capable of deciding that pi equals three, and nothing I say could stop it.”
https://www.factcheck.org/2015/11/tr...t-citizenship/
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