Jed Shugerman has further thoughts: The concept of “unlawful immigrants” existed in the 1850s-60s, and Americans ratified birthright citizenship without worrying about it. From the introduction:
From time to time, I hear an argument against birthright citizenship applying to the children of “unlawful immigrants,” and I decided to dig a little to see if its historical assumptions were right. My basic secondary research indicates those assumptions are wrong: California adopted state restrictions against Chinese immigrants in the 1850s-60s, and yet no one in Congress raised a question about birthright citizenship applying to anyone who had not followed those restriction or potential restrictions).
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You might be thinking, “Wasn’t the Chinese Exclusion Act passed in 1883?” Yes, but that was the federal culmination of state-wide efforts starting in the early 1850s. California passed a series of laws that restricted, regulated, or taxed Chinese immigrants, starting in 1852. Courts initially struck down a direct restriction as unconstitutional, but direct taxes and other regulations stayed in place. If a Chinese immigrant arrived and never paid the direct labor tax, it seems reasonable to suggest that they were in California “unlawfully,” just as a person who could be eligible to enter the country but never completed a visa or overstayed a visa might be considered “unlawful.” Even if one can quibble with whether “unlawful” would apply to the person’s status, the point is that this question was on the table, and the possibility of immigration bans was very much in the air in California, as the anti-Chinese political movement had won state-wide political power. See citations below.
Given these laws and the ongoing fight in California to restrict Chinese immigration, wouldn’t someone in Congress (or elsewhere in the historical record) have asked if there was an exception against birthright citizenship for Chinese immigrants whose legal status would be in doubt because of these actual and potential restrictions?
Instead, when the congressional debate raised the question of how broad birthright citizenship would apply to Chinese immigrants, no one is recorded questioning their legal status or raising this question. In fact, the California Senator who introduced this topic explicitly embraced the consensus position that birthright citizenship applied broadly to Chinese immigrants, with no indication that there would be exceptions. …
I had assumed that the restrictive efforts in California started after, or at least around the time of, ratification of the Fourteenth Amendment. If they started earlier, and so were presumably known at least to California Senator Conness during the drafting debates, that's significant. As Professor Shugerman explains, it would substantially undercut what's probably the strongest originalist argument for a narrow view of birthright citizenship.
UPDATE: At his substack, Adam Unikowsky has an essay on birthright citizenship, citing among other things Professor Shugerman's posts: Reasoning backward and forward – Birthright citizenship and the horseshoe. (Via How Appealing.)
I basically agree across the board, and especially with this point:
When we’re trying to figure out whether the Fourteenth Amendment confers birthright citizenship, we’re not trying to figure out whether birthright citizenship is a good idea [ed.: or, I would add, what some people thought about citizenship in the pre-civil war period]. We’re trying to figure out what the word “jurisdiction” means. The pro-birthright-citizenship position has a coherent interpretation: “jurisdiction” means “authority.” Whereas there’s no way to gerrymander the word “jurisdiction” to include people like Wong Kim Ark whose parents were residents but ineligible to be citizens, but exclude people whose parents were non-residents or illegal immigrants. Maybe there’s a philosophical reason why we should draw the line this way, but that’s just not what “jurisdiction” means. You’ll never find the word “jurisdiction” being used this way in any other context [ed.: including in particular, I would add, in the pre-civil war period]; this definition of “jurisdiction” is invented for purposes of the birthright citizenship dispute.
Posted at 6:29 AM