I was trying to be kind. Erler’s work is, at best, scholarly malpractice. Anton’s reliance on this work is the constitutional equivalent of flat-earthism.
The crux of Erler’s and Anton’s argument is that the words subject to the jurisdiction in the clause mean that a child’s parents must be legal residents of the United States. Anton writes:
We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else”—that is, to no other country or tribe. Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
These quotes have been edited to change their meaning. Trumbull actually was explaining “not owing allegiance” in the context about which it was written—federal Indian law as it existed in 1866. At that time, the United States recognized the governments of many Indian tribes as quasi-independent national governments, governed by treaty agreements. Native people on those reservations could not be sued in U.S. courts or punished for crimes on U.S. territory—so they were not “subject to the jurisdiction” of the U.S. Here is the actual quote from Trumbull: “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction.”
Read: When you’re undocumented but your siblings are citizens
What about the quote from “Honest Jake” Howard? Well, here’s the full quote: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” Anton quietly supplied the word or to make it appear that two different definitions were being offered—either a diplomat or a foreigner. But in fact, what Howard was saying was simple: American-born children of diplomats are not birthright citizens—because they and their parents are immune from American laws.
That’s an uncontroversial principle of international law.
Anton’s “evidence” is not even a misreading; it is outright dishonesty. It is risible as history, but we should take it seriously as politics.
Tyrants and would-be autocrats throughout history have itched to get their hands on the law of citizenship. When Hitler took power in Germany, he engineered the passage of the Nuremberg Laws, which stripped citizenship from Germans not of “German blood.” Jews and others were subsequently “state subjects,” without the rights of “real” Germans. That inequality by law was a key part of the chain of events leading to the Holocaust. The Soviet Union, in a law promulgated in 1931, gave the power to annul the citizenship of any citizen to the Presidium of the Soviet Central Committee. Over the years, thousands of dissidents—including Stalin’s political rival Leon Trotsky, the poet Joseph Brodsky, the Jewish activists Avital and Natan Sharansky, and the Nobel Prize–winning author Aleksandr Solzhenitsyn—were stripped of citizenship, driven into exile, and (in Trotsky’s case) murdered.