To Jus Soli or Not to Jus Soli, that Is Not the Question

From my reply to https://www.facebook.com/minoru.komura/posts/pfbid0cUSUhzFKkRTjpqWGCTmWbY2k81Ry79hycjiwNKe2xTiGDjeqymX6h7YE57puhGmPl

I think the controlling argument of the majority focused on how to determine the intent of the child, which seems ridiculous to me. The child has no control over where he or she is born, unless you count children who influence the dreams of their mothers before they are born, which, really, raises questions no human law can reach to.

It is not a punishment to the child to hold back from a child something that shouldn't have been offered, not a punishment to prevent a child from making a choice that the child shouldn't have been presented with.

Moreover, there are many children who consider being by-default natural-born US citizens because of the actions of their parents a burden rather than a blessing. Yet US law tries to force them to report their income to the IRS and potentially pay taxes. 

Legally rejecting their default citizenship status requires both time and money that they would rather not have to spend.

The controlling principle of the Amendment must be the original language and intent. It was intended to force the southern States to quit trying to prevent the African descent population from voting. The author of the amendment himself said that, of course, aliens and foreigners were not under the jurisdiction of US laws and would never be so considered.

Why should the African descent Americans be specifically included?

Because they were human and their parents had been working and living in the US for a substantial length of time, and they had  been born in the US. This was the condition under which the 14th Amendment was intended to have effect. 

Wong Kim Ark should be understood as a prime example of the court legislating from the bench, and the US courts have a bad record for legislating from the bench.

The president can't veto items in a bill by line (no line-item veto allowed), but the courts effectively can, and that destroys the integrity of legislation. Bills that are only partially effective don't do what they were supposed to do when they were passed.

Wong Kim Ark's parents had been in the US, operating a business more than a decade, clearly under the laws and jurisdiction of the US. The Chinese Exclusion Act prevented the 14th Amendment from having effect, and that is what should have been the decision. That would not have been politically acceptable at the time, so they re-interpreted the 14th Amendment as pure Jus Soli, which it was clearly not intended to be. 

(Insert reader's expletive of choice.)

I suppose we need an amendment that the courts, when finding a law unconstitutional, should direct Congress to fix the constitutionality problems within a specific time limit before the entire bill becomes null and void. 

I suppose, if the court is going to legislate from the bench, it should just bite the bullet and start behaving as if we actually had a clause in the Constitution, or an Amendment, that provides them the authority to set a deadline after which the entire bill will become ineffective and direct Congress to fix it by that deadline. That would allow them to avoid trying to fix things that should be fixed by legislation or Amendment.

Anyway, the clear solution in the current case is that people who insist on remaining in the US illegal have implicitly declared themselves outside the bounds of US law, and outside the coverage of the 14th Amendment. Their children are therefore not under US law or jurisdiction. Likewise parents who are appealing adverse decisions or applying for refugee or other relief are not yet properly under US law or jurisdiction. 

Congress could set a time limit after which a good work record and lack of criminal record would overrule paperwork difficulties, but Congress hasn't.