Pajamas Media » GOP Playing with Dynamite on ‘Anchor Baby’ Issue
The categories of people not "subject to the jurisdiction" of the United States for the purpose of immigration law, and whose children are not US citizens are known.
1. Foreign Sovereigns, if Queen Elizabeth had delivered a child on US soil that child was not a citizen.
2. Diplomatic personnel as protected by the Vienna Treaty, i.e. the Ambassador's wife and not the cook.
3. Children born on foreign warships transiting US waters.
4. Camp followers of an invading army.
Now there are two ways that someone can be unlawfully present in the United States.
1. They could have entered legally after being admitted at an Open Port by an Immigration Officer, usually from US Custom's and Border Protection, and then overstayed their visa.
2. They could have evaded inspection and entered illegally.
For the purpose of completeness I should mention that person's paroled into the country, for urgent medical care for example, have not been lawfully admitted.
Given that people who entered legally are clearly subject to the jurisdiction of the country their children should be citizens under the XIVth Amendment if born in the US. Illegals who entered through a Port after inspection are also entitled to the full range of Constitutional protections, including due process and a presumption of innocence before being deported. The majority of illegal aliens are not in this category but we cannot assume that an illegal evaded inspection, unless they are apprehended following a hot pursuit from the border, and therefor most illegals gain the presumption that they did enter legally until it is proven otherwise.
Persons who evaded inspection are subject to immediate deportation and a permanent bar on reentry. If they were to be considered as members of an invading army, which would be a political decision, then their children would not be citizens at birth. As I read the Constitution it appears to be within the power of a State to declare itself under attack, invasion or facing insurrection. No State has the power to revoke the citizenship of someone born in the United States "and subject to the jurisdiction thereof."
Finally there may be some need to consider the implications of the term "camp follower." Is a female who enters illegally as part of a mass migration of illegals a camp follower? Is a US citizen who knowingly has sex with an illegal and becomes pregnant a camp follower, whose child would not be a citizen? Would a child conceived by an act of rape by an illegal to be considered as the child of a camp follower or of a citizen who was assaulted? It is possible to craft a law that addresses these issues but the fevered atmosphere of demagoguery being used to forestall any consideration of the subject will make it harder to craft either an Amendment or a Bill that properly addresses these issues.
This is not a new problem but it got worse after Ted Kennedy worked on it, Hold Back the Dawn.