According to the first article of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The members of Congress who wrote the amendment in 1866—according to their own published comments on the amendment—never envisioned “birthright citizenship” as it is promoted today. It is only because of court rulings that purported to interpret the amendment that people have believed otherwise. The sole purpose of this section of the Fourteenth Amendment was to grant citizenship to formerly enslaved blacks. It was based on the Civil Rights Act of 1866, which stated that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

That “subject to the jurisdiction thereof” meant that some persons born on U.S. soil were not citizens is evident by the fact that American Indians were not recognized as citizens until the passage of the Indian Citizenship Act of 1924 even though their presence on American soil long predated that of the framers of the Fourteenth Amendment.

But proponents of birthright citizenship can’t have it both ways. If the “subject to the jurisdiction thereof” clause of the Fourteenth Amendment excludes from citizenship the children of foreign officials, ministers, ambassadors, consuls, diplomats, emissaries, and soldiers though they be born on U.S. soil, then it likewise excludes from citizenship the children of illegal aliens and foreign visa holders and tourists though they be born in the United States. And if it does not exclude from citizenship the children of illegal aliens and foreign visa holders and tourists born on U.S. soil, then it likewise does not exclude from citizenship the children of foreign officials, ministers, ambassadors, consuls, diplomats, emissaries, and soldiers who are born on U.S. soil.

And how do we know this? Because the Fourteenth Amendment makes no distinction between the two groups. Foreigners who come here—for whatever reason—are “subject to the jurisdiction” of a foreign government, as are any of their children who are born here. If they or their children don’t want to be under such jurisdiction, then they can apply to become a naturalized U.S. citizen like Elon Musk did.

The conclusion is inescapable. Since the phrase “subject to the jurisdiction thereof” does not just mean “subject to U.S. laws,” even the children of foreigners fleeing persecution by their governments, who consider themselves to be stateless and not owing allegiance to any government, and who want to pledge full allegiance to and be fully under the jurisdiction of the United States, are not automatically citizens just because they are born on U.S. soil.