At Volokh Conspiracy, Ilya Somin: The Constitutional Debate over Birthright Citizenship. From the discussion:
In my view, the best recent statement of the opposite case is that by prominent conservative legal scholar John Eastman (see also related arguments by Mark Pulliam and Howard Foster). I think Eastman shows that the anti-birthright citizenship side of the debate cannot be easily dismissed.
But, ultimately, his argument fails because it relies on a dubious distinction between “complete, political jurisdiction; and… partial, territorial jurisdiction.” Eastman explains that person subject only to the latter “does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance.” Eastman argues that birthright citizenship applies only to children of parents subject to “complete political jurisdiction.”
One obvious problem with this distinction is that it is nowhere to be found in the text of the Fourteenth Amendment, “which simply refers to “the jurisdiction” of the United States. This language encompasses all forms of jurisdiction, not merely that which applies only to citizens subject to “complete political” jurisdiction. The framers could have used the phrase “complete political jurisdiction” (or similar language), but did not. Another problem with the complete jurisdiction theory is that it would enable Congress to deny citizenship even to children of legal immigrants who are not yet citizens themselves. After all, they too do not get to vote or serve on juries, and some of them might not be subject to a military draft if we had one.
I agree that John Eastman's article is a leading argument for the other side. But also I agree with Professor Somin's response. (Plus he has a favorable comment on and quote from my prior post. Much appreciated).
Posted at 11:40 PM