A small contingent of scholars contend that the framers of the 14th Amendment did not intend to grant citizenship to the children of foreign nationals, especially if they are in the country unlawfully. They posit that the phrase “subject to the jurisdiction” refers to people who are not subject to allegiances, or loyalties, to foreign states. Volumes have been written about why these positions are inconsistent with the 14th Amendment’s original public meaning. Two historical notes will suffice.

First, in the Civil Rights Act of 1866, Congress granted citizenship to “all persons born in the United States and not subject to any foreign power.” The 14th Amendment, ratified only two years later, used different language: “subject to the jurisdiction thereof.” The authors were well aware how to deny citizenship to people with foreign allegiances. Instead, they focused on a person’s relationship with American law.

Second, the framers of the 14th Amendment debated the question presented by President Trump’s proposal. During the ratification debates, Sen. Edgar Cowan of Pennsylvania objected to the birthright-citizenship proposal: “Is the child of a Gypsy born in Pennsylvania a citizen?” he asked. “Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?” Sen. John Conness of California answered that the children of Chinese and Gypsy aliens “shall be citizens” and he was “entirely ready to accept the provision proposed in this constitutional amendment.”

Judges have affirmed Conness’s view consistently.