“... because the relevant person for 14th Amendment purposes is not the illegal alien him/herself, but rather the U.S.-born child. Levin may be correct that the illegal intentionally rejects U.S. jurisdiction, but the question of whether the child is subject to U.S. jurisdiction is far less clear. “
Incorrect. If it was correct, the children of ambassadors and of an invading army would be citizens by birth. They are not because THEIR PARENTS were not under the jurisdiction, or, in the words of Wong Kim Ark:
“predicable of aliens in amity” - in amity, ie, in mutual friendship with...
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”
https://www.law.cornell.edu/supremecourt/text/169/649
Thought I’d repeat it, since it seem highly relevant:
“...the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”
“...the children of alien enemies, born during and within their hostile occupation...”
Sounds about right to me!
The Wong Kim Ark case was interesting reading. In their analysis, the Court made clear that their decision hinged on the definition of the phrase “subject to the jurisdiction thereof” and neither the constitution nor any existing statute provided a definition of that term. They acknowledged that Congress had authority to define that term but since it had not done so, they would turn to English Common Law for guidance.
Since it was acknowledged that Congress had authority to provide a definition of the relevant term, couldn’t they do so now. If they did so by statute, that law would be controlling over any previous reliance on common law. There would be no question of trying to change the constitution by law, they would simply be providing a definition the Court had acknowledged they had the power to do.