There's a wrinkle of the birthright citizenship debate that I think is telling. One thing that everyone accepts is that "subject to the jurisdiction thereof" excludes kids born here to representatives of foreign governments. Hans von Spakovsky points out in his comments at Politico, "All scholars agree that the children of diplomats are not citizens." This comes up also at Ramesh Ponnuru's forum on the topic at the Washington Post site, and pretty much everywhere else this issue is discussed, as a prefatory point not worth dwelling on.
But it's not true. It's not true as a practical matter, and it seems the Obama State Department may be revising the formal rules as well.
As a practical matter, there is nothing preventing the U.S.-born child of a foreign diplomat from simply making himself a U.S. citizen. I’d guess that a significant number of foreign diplomatic personnel live in the northern Virginia suburbs of Washington, D.C., and some of them are bound to have children born there. I have three boys born in Virginia and didn’t notice anywhere on their birth certificates, or the forms I filled out at the hospital when they were born, anything asking whether I was the diplomatic representative of a foreign country. So I called the Virginia Department of Health, Office of Vital Records, and confirmed they do not make any inquiry or notation on the birth certificates they issue that the baby in question was born to foreign diplomats.
That means such a person could use that birth certificate to get a Social Security number, a passport, and driver's license, and register to vote. It's not even fraud, because who are you to say that he's not a U.S. citizen? He's born here, he has a legitimate birth certificate, which is accepted in all instances as definitive proof of citizenship — he is a U.S. citizen.
Then there are the formal rules about this. Here's what an older version of the State Department's Foreign Affairs Manual said (dated 1995, emphasis mine):
Under international law, diplomatic agents are immune from the criminal jurisdiction of the receiving state. Diplomatic agents are also immune, with limited exception, from the civil and administrative jurisdiction of the state. The immunities of diplomatic agents extend to the members of their family forming part of their household. For this reason children born in the United States to diplomats to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship under the 14th Amendment or the laws derived from it.
So far so good. But the current version of the FAM no longer says that:
"Blue List" Cases – Children of Foreign Diplomats: 7 FAM1100 Appendix J (under development) provides extensive guidance on the issue of children born in the United States to parents serving as foreign diplomats, consuls, or administrative and technical staff accredited to the United States, the United Nations, and specific international organizations, and whether such children are born "subject to the jurisdiction of the United States."
This iteration is dated August 2009 and the Appendix J seems to still be "under development." It's not clear why they even need a new appendix, since the old version of the FAM already had "extensive guidance" about this. I can only speculate that the State Department is somehow changing the rules. I have a call in on this and will let you know what, if anything, I find out.
And anyway, the U.S.-born children of diplomats are automatically eligible for a green card, allowing them to become U.S. citizens after a period of a few years, making the whole concept of diplomats' kids not being citizens kind of moot.
The number of people in question is small, but this is important nonetheless because it highlights how lax we are about citizenship matters. I'm on record, speaking only for myself, as skeptical about changing our current citizenship practices, and would prefer to tighten up immigration controls instead -- but the fact that we all accept this red line for diplomats' children, but then take no steps whatsoever to police it, suggests how unserious we are about American citizenship.
This is the same problem as with the issue of dual citizenship — new citizens are required to take an oath whereby they "absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen" — but then we do nothing to hold them to that oath and, in fact, facilitate their violation of it. It's this frivolous approach to the fundamental issue of membership in the American people that gives traction to issues like birthright citizenship.