Joe Buffington (Albany Law School) has posted Born This Way? How the Linguistic Structure of the 14th Amendment Undermines “Birthright Citizenship” on SSRN. Here is the abstract:
The first sentence of the 14th Amendment to the U.S. Constitution has long been interpreted to confer American citizenship on any person born in the United States, unless the person was a member of a limited set of individuals deemed not subject to its jurisdiction – such as the children of visiting diplomats. President Trump, however, contends that the provision denies citizenship to any person whose mother was illegally or merely temporarily present in the United States when the person was born (unless the person’s father was a citizen or permanent resident), a position the Supreme Court has yet to adopt. Discussions of the provision’s meaning routinely focus on the semantics of the “subject to” conjunct, reducing the interpretive issue to the single query: Who’s subject to U.S. jurisdiction and thereby eligible (via birth or naturalization) for American citizenship? This seems sensible, but it’s ultimately insufficient, because it neglects the conjunct’s relation to the rest of the sentence; in other words, simply knowing what it means to be “subject to the jurisdiction thereof” isn’t the end of the disambiguation. In this essay, I apply modern linguistic insights to the text of the 14th Amendment and show that even if we reasonably interpret the Amendment as defining the exclusive paths to U.S. citizenship, we must accept that, under the most plausible reading of the Amendment’s first sentence, no path requires a person to be subject to U.S. jurisdiction at the time of their birth; thus, to the extent that linguistic and legal plausibility coincide, whether the Constitution confers “birthright citizenship” isn’t an issue.
Surprisingly, something new to think about.