Clearly there are those groups of people (it's not based on land as per your previous comment) such as Native Americans, whose allegiance is not to the U.S. and thus they are not included under the Citizenship Clause. Quite simply illegal immigrants likewise do not have allegiance to our country.
In regards to the Native Americans, it is land-based; the one thing I am not sure about is if it was completely land based, or only partially land based. It is obvious that while on tribal land (whether that be a formal reservation or, as was the case in some areas at that point, a sort of more vague large area where Native Americans with no formal treaty lived), the United States had no real jurisdiction on their land outside of treaties they made... well, until the United States decided it wanted more direct power and started passing laws (of questionable constitutionality) to govern the tribes without any treaty agreement, not even forced treaty agreement, on the part of the tribes. But that came decades after the Fourteenth Amendment. There is an argument to be made that such laws
did put them under the jurisdiction of the United States, though one could also say that since it wasn't
all the laws affecting them, it did not (the 1924 Indian Citizenship Act makes this question largely moot, though). Regardless of the situation of later years, the thing I am not so sure about is whether the US jurisdiction at the time of the Fourteenth Amendment was complete if a Native American stepped off tribal land. It was noted the United States did not take jurisdiction of crimes committed by one Native American against another, but was that only applicable on tribal land, or did it include off? I'm not so sure of that. But ultimately: If the Native Americans were fully under the jurisdiction of all laws of the United States while
off tribal land (including crimes committed against each other), they were under its jurisdiction and any born outside of tribal land would be citizens.
However, that specific question is ultimately not all that important to the point, so let's move onto your claims about allegiance. To recap, you laid your argument on a statement by Senator Trumbull. You said:
Illinois Senator Lyman Trumbull explained what “subject to the jurisdiction” meant: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means, ‘subject to the complete jurisdiction thereof.’ …What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means” (p. 2893). . . .
I have already noted the fact that Trumbull says that subject to the jurisdiction means subject to the laws of, and gives examples of how Native Americans (the ones that have not become "civilized", at least) are not subject to the lands of the United States and therefore ineligible. And Trumbull also has no apparent objection to the idea that children of immigrants are citizens. You have not really responded to these points.
But there is a larger problem with your argument, which is the quote,
even out of context, does not say what you are claiming it does. You claim that illegal immigrants do not qualify because they do not
have allegiance to our country. But Trumbull never says anything about
having allegiance. He talks about
owing allegiance. Indeed, if the criteria was someone's parents
having allegiance, then we run into all kinds of confusing situations. Do people retroactively lose their citizenship if their parents are discovered to have been spies at the time of their births?
But, of course, that's if we're talking parents. But it's not actually the parents who matter, but the child themselves. The Citizenship Clause, after all, says "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." Now, does it say people whose
parents are subject to the jurisdiction of the Untied States are citizens? No, it says it is determined by whether the
person who is born is subject to the jurisdiction. If we, as you claim, are supposed to interpret this as someone having allegiance, then (unless there's some genius baby out there),
no one at the time of their birth is capable of having allegiance to a country on the simple grounds that they don't even know what a country is, let alone have allegiance to it.
This is exactly why Trumbull used the phrase "
owing allegiance". For the reasons given above, it is nonsense to try to assign citizenship to a baby based on either them or their parents
having allegiance.
For ease of reference, here is again Trumbull's statements in larger context:
Mr. TRUMBULL. Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get control of those people.
If you introduce the words "not taxed," that is a very indefinite expression. What does "excluding Indians not taxed" mean? You will have just as much difficulty in regard to those Indians that you say are in Colorado, where there are more Indians than there are whites. Suppose they have property there, and it is taxed; then they are citizens.
Mr. WADE. And ought to be.
Mr. TRUMBULL. The Senator from Ohio says they ought to be. If they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed. It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is "subject to the jurisdiction of the United States." Would the Senator from Wisconsin think for a moment of bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.
It seems to me, sir, that to introduce the words suggested by the Senator from Wisconsin would not make the proposition any clearer than it is, and that it by no means embraces, or by any fair construction — by any construction, I may say —could embrace the wild Indians of the plains or any with whom we have treaty relations, for the very fact that we have treaty relations with them shows that they are not subject to our jurisdiction. We cannot make a treaty with ourselves; it would be absurd. I think that the proposition is clear and safe as it is.
Trumbull, as noted, identifies examples of how they, at least at the time, were not subject to the laws of the United States ("Can you sue a Navajoe Indian in court?" and "Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another?"). And he also twice uses the phrase "subject to our laws" in conjunction with "within our jurisdiction" to show that is what it refers to. To be subject to the jurisdiction thereof is to be subject to the laws thereof, and since that is not the case for the Native Americans, they are not subject. And Trumbull, while not explicitly saying that children of immigrants become citizen, gave absolutely no objection to the Senators talking previously who said it did. And it is also worth noting that he also affirms that "if they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed" showing that any Native American subject to the laws of Colorado would gain citizenship under this.
However, I have now realized--thanks to your error in asserting he said you need to have allegiance when he actually said it's about owing allegiance--that I have been looking at things incorrectly in a way that actually hampers my position, because I have been focusing so much on the condition of the parents to the exclusion of the fact it's the actual child's condition that matters. Again, the Fourteenth Amendment says "All persons born or naturalized in the United States, and subject to the jurisdiction thereof"
not "All persons born or naturalized in the United States, and born to someone subject to the jurisdiction thereof". In a few cases, like the case of the child of an ambassador, their parent's condition matters as the diplomatic immunity is retained by the child, but this is
not the case for a regular immigrant, legal or illegal.
Should an immigrant (say, a Mexican) come to the United States and give birth, the child at the time of their birth is subject to the jurisdiction (laws) of the United States. If one insists on discussing allegiance, they owe allegiance only to the United States at that time. Although by Mexican law they gain citizenship (like the United States, the child of a citizen of Mexico born outside of the country is a citizen of Mexico), no allegiance is
owed to Mexico, given that Mexico exercises no jurisdiction over them (except through whatever the United States agrees to, still making it US law that is governing), until such time as the child returns to Mexico. In contrast to this, they are subject to each and every law of the United States and allegiance
is due to it (whether they
choose to show that allegiance--once they're old enough to understand what allegiance is--is their own choice, but it is
due as long as they remain in the United States). Allegiance being due and being subject to the law go together, for it is only those that have allegiance due to the United States that laws are enforced against.
Thus, the status of the child's parents is irrelevant
unless it actually affects whether the child is subject to the jurisdiction of the United States, or requires allegiance to another country. This is not the case for normal immigrants, whether they are legal or illegal.
Who
is it the case for, then? Well, we have discussed ambassadors. Their diplomatic immunity, exempting them (at least mostly) from the laws of the United States, is a trait passed on to their children. Contrariwise, they (and their children) continue to be subject to the jurisdiction and laws of their home country, and owe allegiance to it, in a fashion that is not the case for regular immigrants. There is the case of the occupying armies, as the armies and their children owe no allegiance to the United States and are not subject to its jurisdiction as a practical matter. And there is of course the Native Americans. If born to Native Americans--at least on their tribal land--then they owe allegiance to that tribe. They may owe some degree of allegiance to the United States, particularly after government passed more laws enforcing laws on tribal land, but it's not full allegiance because not all the laws apply.
And that seems to explain it all quite nicely. The children of Native Americans, ambassadors, and occupying armies are born into the jurisdiction (or, as Trumbull put it, born into owing allegiance) to entities other than the Untied States. But that is not the case for children of immigrants--illegal or otherwise--because their children born in the United States
do owe allegiance to the United States as long as they remain in it, as shown by the fact all of the laws apply to them and they can be tried for breaking them.
tl;dr: While I think allegiance is not as good as describing whether one is subject to the jurisdiction of the United States as the simple question of whether its laws apply to them, it still does work. However, the source offered (Trumbull) said nothing about how you need to
have allegiance to be subject to the jurisdiction of the United States, but how you need to
owe allegiance to it. Save for the normal exceptions (children of ambassadors, children of occupying armies, children of Native Americans (at least on tribal land or other circumstances that the laws do not fully apply to them)), anyone born in the United States is subject to its laws and owes allegiance to it at the time of their birth, and will continue to owe such allegiance--and be subject to the jurispudence/laws of the country (subject to laws and allegiance being owed really go hand in hand)--so long as they remain. The fact that laws fully apply to them demonstrates this fact.
en.wikipedia.org
