Article by James Ho---one of those cited in the law professors' letter---that shuts down the argument that the "subject to the jurisdiction" clause of the 14th limits birthright citizenship. If I get some time today I'll use this thread to properly state my alternative argument.https://twitter.com/charlescwcooke/status/1057966802469380096 …
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1/Something like that. Judge Ho addresses solely the "subject to the jurisdiction" argument; my argument is novel in this field. (That it's a novelty is not terribly surprising, as this simply wasn't a real issue at the time of the ratification, there've been few precedents.)
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2/My view, to be precise, is that it would take an act of Congress to undo the citizenship granted (or recognized) by the Citizenship Clause. Naturalization going forward may be controlled by ordinary act of Congress (as one of its Article 1 powers), but subject to, e.g., the
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3/privileges and immunities clause. Thus, the legislative branch can enact a rational immigration policy---well, could in theory---but is still subject to substantive limits on liberty, equality, etc.
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However, did the US practice jus soli from its inception? The U.S. Constitution doesn't seem to me confined merely to the text, since many of the underlying mechanisms (judicial review; common law) are either invented by early precedent or inherited from ancient usages.
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1/There is a live historical debate about that, but as I see it, the effect of the 14th Amendment was to admit the results of jus soli at the time of its enactment, and subsequently something like jus soli has been maintained by statute. But Congress can pass a law altering it,
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2/just as Congress or the States can pass laws altering many other common law rules, ancient usages, or customs.
End of conversation
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