President Trump’s recent executive order attempting to limit citizenship by birth in the United States was immediately challenged in court, and a federal judge in Seattle has already issued a temporary restraining order, calling the EO “blatantly unconstitutional”. Understandably, this topic tends to generate strong opinions, often from people who have no idea how to interpret the law, and no awareness of the history of jus soli in the United States. In particular, many have questioned whether the Supreme Court’s ruling in the 1898 case United States v. Wong Kim Ark is applicable to children of non-citizens other than lawful permanent residents, and some have even argued that Wong Kim Ark should be overruled entirely. As it happens, I’ve done a lot of reading on this topic, and I think there’s some value in collecting all the relevant arguments I could find. I will list them below, each with a title that provides a brief summary of why the “traditional view” of the 14th Amendment is correct (i.e., that nearly all U.S.-born persons are U.S. citizens), followed by a more detailed explanation. I actually looked into whether I could file an amicus curiae brief when this case goes to the Supreme Court, but unfortunately, you have to be a member of the bar to do that (and there are other annoying requirements, such as submitting 40 paper copies).
You may also find my Law Stack Exchange answer informative. That post focuses more on history, while this post focuses more on refuting common arguments made by 14th Amendment revisionists and people who just don’t know anything at all.
Wong Kim Ark already exhaustively enumerated all exceptions to jus soli
The majority opinion in United States v. Wong Kim Ark (1898) did not merely conclude that the U.S. born child of alien permanent residents is a U.S. citizen. It in fact listed all categories of persons that, in the court’s opinion, were born in the United States but considered not “subject to the jurisdiction thereof”:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
By listing these four exceptions, though it wasn’t necessary to decide the case, the Supreme Court implicitly denied that any other exceptions exist.
The Supreme Court could have inserted an exception for children of unlawful migrants, but declined to do so
The Page Act was enacted in 1875. The Chinese Exclusion Act was enacted in 1882. The Scott Act was enacted in 1888 and upheld by the Supreme Court in Chae Chan Ping v. United States (1889). The Geary Act was enacted in 1892.
Wong Kim Ark was decided in 1898. The idea that the Supreme Court was not aware of the possibility of illegal immigration is simply not plausible.
Wong Kim Ark is binding precedent not only for children of permanent residents
Many people think that because Wong Kim Ark was about a person whose parents were permanent residents, that the precedent established by the Supreme Court’s ruling applies only to children of permanent residents. Those people argue that there is no Supreme Court precedent concerning the citizenship of persons born in the United States to temporary or unlawful residents.
Immediately, you may see a problem with this argument. Wong Kim Ark was Chinese, so does that mean that the citizenship status of Japanese Americans remained unsettled? Wong Kim Ark was born in San Francisco, but what about people born in Honolulu? Did the Supreme Court’s ruling leave the citizenship status of tens of thousands of other Asian Americans in doubt?
In common law legal systems such as that of the United States, the precedent set by a ruling (assuming that any precedent was set at all) consists of the entire ratio decidendi (Latin for “reason for the decision”). It is for this reason that no serious person claims that Wong Kim Ark is limited to Chinese people born in San Francisco: the Court’s reasoning for why Wong was a U.S. citizen did not rest on the fact that he was Chinese, and it did not rest on the fact that he was born in one particular city as opposed to any other place in the United States. To determine whether Wong Kim Ark has precedential value for the children of foreign nationals other than permanent residents, we need to examine the entire chain of reasoning behind the decision and determine whether the parents being temporary or unlawful residents could have disturbed that chain of reasoning. As we will see below, the answer is no. Therefore, it is incorrect to argue that there is no binding precedent for them. Wong Kim Ark is that precedent.
For the purposes of jus soli, temporary residence is equivalent to permanent residence
The Supreme Court’s opinion in Wong Kim Ark uses the word “resident” in a way that includes temporary residents and does not exclude persons having a foreign domicile (that is, the intent to return home to a foreign country). For example, here it describes the English common law that was inherited by the U.S.:
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
There is no domicile requirement in the clause that starts with “every child born in England of alien parents”; the “residing in” condition in the first part of the sentence excludes only foreign diplomats.
Here is another paragraph from the opinion:
That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark [sic], (1844) 1 Sandf.Ch. 583.
In the cited case of Lynch v. Clarke, a New York state court decided that Julia Lynch, who was born in the U.S. during the “temporary sojourn” of her Irish parents, and who brought her back to Ireland with them, had been a U.S. citizen from birth and had never lost that status. You can read the opinion here. (Thanks to Aaron Reichlin–Melnick for tracking this down.)
Here is a third paragraph from Wong Kim Ark that doesn’t mention a domicile qualification:
Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [p675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.
When foreign nationals temporarily visit the United States, if they have any U.S.-born children, those children are clearly “born within the sovereignty of the United States”.
Finally, it is worth pointing out that the 1894 Gresham–Yang treaty, nearly contemporaneous with Wong Kim Ark, contained the following language:
The provisions of this Convention shall not affect the right at present enjoyed of Chinese subjects, being officials, teachers, students, merchants or travellers for curiosity or pleasure, but not laborers, of coming to the United States and residing therein. […] it is
hereby understood and agreed that Chinese laborers or Chinese of any other class, either permanently or temporarily residing in the United States, shall have for the protection of their persons and property all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens.
That is, “travellers for curiosity or pleasure” could “reside” in the U.S., and the rights of Chinese persons “temporarily residing” in the U.S. would be protected.
This makes it clear that when the Supreme Court referred to children of resident aliens in Wong Kim Ark, it was not implying any requirement for the parents to be permanent residents.
“Political jurisdiction” is just jurisdiction
A popular argument of 14th Amendment revisionists is that the word “jurisdiction” is used in the 14th Amendment to refer to “political jurisdiction”, as distinguished from the usual jurisdiction of a state within its territory. However, as we will see from the excerpt below from Wong Kim Ark, “political jurisdiction” is just jurisdiction. The former term has fallen into disuse, which is the only reason why this specious argument sounds superficially plausible to the modern ear.
It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides — seeing that, as said by Mr. Webster, when Secretary of State, in his Report to the President on Thrasher’s Case in 1851, and since repeated by this court,
independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger [p694] born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.
The word “jurisdiction” is used twice in the Fourteenth Amendment
Courts normally presume that when a word or phrase is used multiple times in the same enactment, it is intended to be interpreted the same way in each place it occurs. The second sentence in the 14th Amendment, that is, the very next sentence after the Citizenship Clause, reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In this sentence, the word “jurisdiction” clearly refers to the legal jurisdiction of a U.S. state over its territory, so it is extremely difficult to justify the claim that “jurisdiction” means something else in the previous sentence.
The Court’s reasoning explicitly refers to territorial jurisdiction
The opinion of the Court included the following paragraph:
In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that, upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war, and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found.
There is no exception to the “full and absolute territorial jurisdiction” in the case of a nonresident alien who is not a diplomat.
Elk v. Wilkins reached the same conclusions about non-Indians as Wong Kim Ark
In the 1884 case of Elk v. Wilkins, the Supreme Court ruled that Indians (that is, Native Americans) born in the United States were not considered born subject to its jurisdiction. However, see the following paragraph from the Court’s opinion in Elk:
Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.
Indians born in the United States were analogized with foreign nationals born outside the U.S. and with U.S.-born children of foreign diplomats, not U.S.-born children of foreign nationals in general.
The class of Indians excluded from U.S. citizenship were the “Indians not taxed”
In Elk and Wong Kim Ark, the Supreme Court considered the 14th Amendment’s Citizenship Clause to codify the same right to citizenship by birth as had the Civil Rights Act of 1866. The latter encompassed “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed”. In Elk, the Supreme Court reasoned as follows:
The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit, either through treaties made by the president and senate, or through acts of congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian. Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed by any state.
There is a commonality between foreign diplomats and the Indians not taxed of yore [1]: they owe allegiance to some “alien nation” and it is by virtue of that allegiance that they are exempt, at least partially, from U.S. jurisdiction. (Indians did not, of course, enjoy full immunity in the manner of foreign diplomats.)
The exemption of aliens from some duties of citizens does not make them not subject to U.S. jurisdiction
Aliens are exempt from at least one duty of U.S. citizens: to serve on a jury when called and selected. The exclusion of aliens from juries long predates even the 14th Amendment.
For this reason, it is sometimes argued that aliens in the U.S. are not fully subject to U.S. jurisdiction. However, we’ve seen that the Supreme Court already rejected that reasoning when applied to aliens such as Wong Kim Ark’s parents. And even before Wong Kim Ark, it was already beyond doubt that U.S. born children of white immigrants, even those who had not been naturalized, were natural-born U.S. citizens.
The exemption of aliens from jury duty is not by virtue of their allegiance to a foreign nation. It is simply because U.S. citizenship is required. For example, a stateless person living in the U.S. wouldn’t be able to claim any privileges by virtue of a foreign nationality, since they don’t have any; but they still wouldn’t be required to serve on a jury, either. A non-citizen can only be considered not subject to U.S. jurisdiction while in the U.S. if there is some kind of treaty or other agreement with the sovereign to which that person owes permanent allegiance, and that treaty exempts them from U.S. jurisdiction by virtue of that allegiance.
The U.S., in fact, has treaties with some countries that allow their citizens, while permanently resident in the U.S., to claim an exemption from being conscripted into the U.S. military [7]. So, it might be said that those individuals are not fully subject to U.S. jurisdiction. However, U.S. citizens cannot claim the benefits of such a treaty even if they also have citizenship in a country with which the U.S. has such a treaty. No promise is made to aliens that their U.S.-born children inherit their rights under such treaties (in contrast to the case of foreign diplomats, where the Vienna Convention extends immunity to family members of the diplomat). Therefore, there is no doubt that the U.S.-born children of such aliens are still fully subject to U.S. jurisdiction.
The Fourteenth Amendment does not refer to the status of the parents
U.S. citizenship attaches to a person born in the U.S. if the person so born is subject to its jurisdiction. Therefore, inquiry into whether the parents are subject to U.S. jurisdiction is a bit of a red herring. In the case of foreign diplomats and Indians not taxed, it is only because the child inherits the treaty rights of the parent that the child is considered not subject to U.S. jurisdiction.
To argue, as some have done, that unauthorized immigrants are not subject to U.S. jurisdiction does not actually support the conclusion that their U.S. born children are not subject to U.S. jurisdiction. The status of being an unauthorized immigrant is not inherited.
Senator Jacob Howard had this to say when the Citizenship Clause was debated in Congress (emphasis mine):
I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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.
This paragraph is often cited by 14th Amendment revisionists to claim that alienage is inherited, but this is only because they lack reading comprehension skills. Because all we have is a transcription of language that was originally spoken, it cannot be determined from the written record whether Howard meant three different categories of persons or only one category. Revisionists claim that Howard was referring to three different categories. If that is so, then the effect of saying in one sentence that these three different categories of persons are aliens is the same as that of three separate sentences. For example, one of those sentences would be, “This will not, of course, include persons born in the United States who are aliens”. But this is a tautology: of course an alien is not a citizen, and vice versa. There is nothing in Howard’s speech implying that the children of aliens are aliens. The “belong to the families of” wording applies only to the third category; children of foreign diplomats are not U.S. citizens. It seems unlikely that Howard meant to list three separate categories, the first two of which are tautological. Howard must have been describing one category: those born in the U.S. who are nevertheless foreigners are the children of foreign diplomats. (And “aliens” was added for emphasis, I assume.)
“Allegiance” used to mean more than just nationality
In modern language, a person’s “allegiance” is usually taken to refer to their permanent allegiance to their country of nationality. Therefore, 14th Amendment revisionists often quote Sen. Lyman Trumbull, who offered the following interpretation of the jurisdiction requirement when the proposed amendment was debated in the 39th Congress:
What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means.
It might therefore appear that anyone born in the United States who is a citizen at birth of some other country (presumably, as a result of descent from a parent who has that citizenship) is not a U.S. citizen under the 14th Amendment.
Allegiance originally referred to a person’s duty to obey their liege lord, that is, sovereign. A friendly alien was obligated to obey local law to the same extent as a natural-born subject; though they owed a permanent allegiance to their country of nationality, they also owed a local allegiance to the country they were present in. This fact was not made up by the Supreme Court in Wong Kim Ark; they cite a number of references, including Dicey’s Digest of the Laws of England (1896), and older Supreme Court precedents.
In context, Trumbull was talking about Native Americans:
[…] The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? 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 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. If they were, we would not make treaties with them. […]
Native Americans, though born in the United States, were at the time exempt from some federal and state jurisdiction. Apparently, they couldn’t be sued, except presumably in tribal courts. In that sense, they did not owe local allegiance to the U.S. and that’s the reason why they didn’t get citizenship by birth in the U.S.
Trumbull said later in the same speech (emphasis mine) [4]:
[…] Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens […]
Sen. Howard added:
I concur entirely with the honorable Senator from Illinois, in holding that the word “jurisdiction”, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. […] The Indian who is still connected by his tribal relation with the government of his tribe is subject for crimes committed against the laws or usages of the tribe to the tribe itself, and not to any foreign or other tribunal. I believe that has been the uniform course of decision on that subject. The United States courts have no power to punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe.
Sen. Fessenden replied, “Within the territory”. Howard then replied:
Yes, sir. Why? Because the jurisdiction of the nation intervenes and ousts what would otherwise be a right of jurisdiction of the United States. […]
In Howard’s view, Indians were not subject to U.S. jurisdiction only because the jurisdiction of the tribal nation intervenes and ousts U.S. jurisdiction: in other words, they didn’t owe local allegiance to the United States. It is clear that this does not apply to other foreign nationals (except in the cases enumerated in Wong Kim Ark). In no sense does the jurisdiction of a foreign country intervene when a foreign citizen is permanently or temporarily resident in the United States, whether lawfully or not, unless the U.S. has agreed that the person is subject to foreign law and not U.S. law, as occurs when the U.S. agrees to receive a diplomat.
“Not owing allegiance to anybody else” is still satisfied by citizens of foreign countries
We’ve seen above that the Native Americans were considered to owe allegiance to somebody else, that is, their tribal nations, despite being in the U.S. But the same doesn’t apply to citizens of foreign countries.
Even in the time of Wong Kim Ark, U.S. jurists recognized that dual citizenship would sometimes exist. The Bancroft Treaties were designed to permit naturalized immigrants to renounce their native citizenship—but such treaties did not exist with all countries. In addition, the Bancroft Treaties typically required five years’ residence in the country of naturalization before the person’s native country would recognize the change in nationality, so they could not prevent dual citizenship at birth, e.g., as a result of a person being born in the U.S. but also obtaining another nationality through jus sanguinis. [6]
No one doubts that the U.S.-born child of e.g. one U.S. citizen and one Japanese citizen is a U.S. citizen at birth, despite the fact that they also acquire Japanese citizenship at birth (which will be lost at age 22 if they do not elect to keep it). The competing claim of Japan to enforce the duties of citizenship on that person must give way to U.S. jurisdiction as long as the person is in the U.S. The same is true for a person born in the U.S. whose parents are both aliens.
In Wong Kim Ark, the Court expended a few paragraphs on the topic of competing claims to allegiance. For example:
In the appendix to their report are collected many such cases in which the British Government declined to interpose, the reasons being most clearly brought out in a dispatch of March 13, 1858, from Lord Malmesbury, the Foreign Secretary, to the British Ambassador at Paris, saying:
It is competent to any country to confer by general or special legislation the privileges of nationality upon those [p672] who are born out of its on territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to the obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations to do the same. But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned.
Likewise,
In 1869, Attorney General Hoar gave to Mr. Fish, the Secretary of State, an opinion that children born and domiciled abroad whose fathers were native-born citizens of the United States and had at some time resided therein were, under the statute of February 10, 1855, c. 71, citizens of the United States, and
entitled to all the privileges of citizenship which it is in the power of the United States Government to confer. Within the sovereignty and jurisdiction of this nation, they are undoubtedly entitled to all the privileges of citizens. . . . But,
the Attorney General added,
while the United States may, by law, fix or declare the conditions constituting citizens of the country within its own territorial jurisdiction, and may confer the rights of American citizens everywhere upon persons who are not rightfully subject to the authority of any foreign country or government, it is clear that the United States cannot, by undertaking to confer the rights of citizenship upon the subjects of a foreign nation who have not come within our territory, interfere with the just rights of such nation to the government and control of its own subjects. If, therefore, by the laws of the country of their birth, children of American citizens born in that country are subjects of its government, I do not think that it is competent to the United States, by any legislation, to interfere with that relation or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist. The rule of the common law I understand to be that a person “born in a strange country, under the obedience of a strange prince or country, is an alien” (Co.Lit. 128b), and that every person owes allegiance to the country of his birth.
In other words, the Supreme Court agreed with the idea that a person born and residing in a country is fully subject to the jurisdiction of that country, regardless of whether another country might also claim that person as one of its citizens.
Any intention of a U.S.-born child’s alien parents to cast off their native, permanent allegiance is irrelevant
14th Amendment revisionists often attempt to square their opinions with the Supreme Court’s opinion in Wong Kim Ark by asserting that the act of emigrating permanently (and legally) to the United States is what makes an alien subject to U.S. jurisdiction in the sense of “not owing allegiance to anybody else”.
However, an alien, even one who has been permitted to reside in the U.S. with no time limit, still owes permanent allegiance to their native country. The U.S. has historically held the philosophy that a naturalized immigrant has the right to be treated as if they have severed their bond of permanent allegiance to their native country, but that only happens at the time of naturalization, not before. In Wong Kim Ark, the Supreme Court quoted Dicey’s Digest of the Laws of England (1896):
“British subject” means any person who owes permanent allegiance to the Crown. […]
A British subject remains one as long as they have not been naturalized in another country, so their permanent allegiance remains.
At the time of Wong’s birth in 1873, his parents were still allowed to visit China and return to the U.S.; they would not become subject to restrictions until 1882. While in China, they certainly would have been treated the same way as any other Chinese subjects. And it has always been the policy of the United States that it cannot intercede in legal matters on behalf of its permanent residents who are still citizens of the country they’re travelling in. (See the previous point.)
Moreover, even if it is asserted that the intent to cast off one’s native allegiance is what makes an alien subject to U.S. jurisdiction, that view is not consistent with Wong Kim Ark, either.
Until 1952, most immigrants had to file a Declaration of Intention a certain number of years before they could actually naturalize. The declaration was not binding. In some cases, an alien would acquire certain privileges as a result of filing the declaration, without necessarily having to wait until naturalization [2].
Wong’s parents, being Chinese, were permanently barred from naturalization under the law at the time [3] and were therefore not eligible to file a declaration of intention. We also saw above that in the case of Lynch v. Clarke, even when the parents were merely visiting the U.S. temporarily (and thus had no intention to cast off their allegiance to Ireland), and had a child born in the U.S. during that short trip, their child was a U.S. citizen at birth.
As we saw in the previous point, “allegiance” for 14th Amendment purposes can only be interpreted as local allegiance.
U.S. born children of U.S. citizens acquire U.S. citizenship by jus soli, not jus sanguinis
The U.S. has a hodgepodge of statutory provisions relating to the acquisition of U.S. citizenship by birth abroad to one or two U.S. citizen parents. However, all of those provisions apply only outside the United States [5]. For example, INA 301(c) states that the following persons are U.S. citizens at birth:
a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
A person born in the United States, even to two parents who were born in the United States and have never left, is a U.S. citizen only because they were born in the U.S. and subject to U.S. jurisdiction. The Supreme Court also found in Wong Kim Ark that in both British and American law, citizenship is inherited only when there is a statute that says so.
In order to determine whether a U.S.-born child of two U.S.-citizen parents is a U.S. citizen, one would need to first determine whether the child is subject to U.S. jurisdiction. It would clearly be absurd if the answer were not “yes”—but the point is that the causation flows in one direction, and one direction only: you have to determine whether the child is subject to U.S. jurisdiction first, and then you can conclude that they’re a U.S. citizen. It never goes the other way—i.e., that you assume that the child is a U.S. citizen by descent, and conclude that they’re subject to U.S. jurisdiction [8]. U.S. law does not work that way, no matter how much you might want it to. The U.S. is a jus soli country.
I mentioned earlier that some countries have treaties with the U.S. that exempt their citizens from being conscripted into the U.S. military. If one were to claim that the U.S.-born child of such a foreign national is not fully subject to U.S. jurisdiction while in the U.S., then that principle would have to be applied even when one or both parents are U.S. citizens and the child inherits a foreign citizenship (either from one non-U.S.-citizen parent or a dual-citizen parent): the child is entitled to the treaty rights, therefore they are not born subject to U.S. jurisdiction, therefore they are not a U.S. citizen. You don’t get to reason the other way around, that they’re a U.S. citizen because they’re born in the U.S. to one or two U.S. citizen parents, and that makes them subject to U.S. jurisdiction and ineligible for the treaty rights. Being subject to U.S. jurisdiction is the sole condition precedent, a sufficient and necessary one, for a person born in the U.S. to be a U.S. citizen at birth.
The only way out of the quandary is to admit that the treaties were not actually meant to secure a heritable right (unlike international law relating to diplomats). Since the treaty rights cannot be claimed by dual citizens, you have to first determine that the person is a non-U.S. citizen before you can conclude that they’re eligible to claim treaty rights. That is, the treaty must be at first ignored while making the determination of the person’s citizenship. When the child turns out to be a U.S. citizen, then they will not be able to claim treaty rights, unless they renounce their U.S. citizenship prior to induction.
Disobedience to the law does not imply the absence of jurisdiction
It is often asserted that when aliens are present in the U.S. in violation of law, they have not fully subjected themselves to U.S. jurisdiction and therefore their U.S.-born children should not be considered U.S. citizens. We’ve seen above that the 14th Amendment is phrased purely in terms of the person born in the U.S., not their parents, so that’s at least one reason why this argument is not valid. Furthermore, if the revisionists’ argument were accepted, it would mean that some people born in the U.S. to two U.S-citizen parents would also not be U.S. citizens—say, if their parents had failed to file an income tax return when required to do so! Such children would not acquire U.S. citizenship through jus sanguinis, as discussed in the previous point. If we believe that they acquire U.S. citizenship through jus soli, the same must be true when the parents are not U.S. citizens.
The drafters of the 14th Amendment would not have written it in a way that excludes from its protection persons whose parents are in disobedience of law, even in very serious cases, since they would have been aware that such a loophole would be weaponized against African Americans. It is laughable to interpret “subject to the jurisdiction thereof” to contain such a loophole.
The Fourteenth Amendment could not have achieved its original objectives if interpreted according to the revisionists
Lawful entry to the U.S. is not required in order to establish that a person is subject to U.S. jurisdiction while present in the U.S.; if it were required, then slaves who were illegally imported into the U.S. between 1808 (the first year Congress was able to prohibit the importation of slaves) and 1865 (when the Thirteenth Amendment was ratified) would be considered not subject to U.S. jurisdiction and their U.S.-born children wouldn’t be U.S. citizens. This outcome would obviously be contrary to the intent of the Fourteenth Amendment.
Furthermore, if it’s true that aliens are not subject to the jurisdiction of the country they’re in, and that this jurisdiction or lack thereof is inherited, one wonders whether the 14th Amendment could have operated to confer citizenship on persons born enslaved in the U.S. to a master who wasn’t a U.S. citizen. Since slaves were considered chattel (personal property) they would have been considered subject to the same jurisdiction as their masters. Assuming we accept that such a former slave was considered a U.S. citizen through their birth in the U.S., it is difficult to see how we could argue that the master was not subject to U.S. jurisdiction.
The original objective of the Fourteenth Amendment was not limited to ex-slaves and their descendants; it was to codify the prior common law
I keep wondering whether 14th Amendment revisionists have ever actually read the Supreme Court’s opinion in Wong Kim Ark. It includes the following quotation of Sen. Conness when the amendment was debated in the 39th Congress:
The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. . . . We are entirely ready to accept the provision proposed in this Constitutional Amendment that the children born here of Mongolian parents shall be declared by the Constitution of [p699] the United States to be entitled to civil rights and to equal protection before the law with others.
One might argue that ex-slaves and their descendants, alone, could satisfy the test of “not owing allegiance to anybody else” without already being U.S. citizens, since reducing a person to the status of chattel strips off their political character completely, depriving them of most incidents of nationality.
But it was abundantly clear to the 39th Congress that the Civil Rights Act of 1866 and the 14th Amendment would not be limited only to ex-slaves and their descendants. Nor did Sen. Conness appear to believe that the parents would need to be domiciled in the U.S.
Sen. Trumbull considered the Act and the Amendment to simply codify what had already been the law. (Evidently, he felt that the Supreme Court had simply misapprehended the common law in its infamous 1857 ruling in Dred Scott.) We saw that in the 1844 case of Lynch v. Clarke, that that prior common law was that the nationality and domicile of the parents were irrelevant.
Bonus: jus soli is also protected by statute
This section is concerned with the meaning of INA 301(a) (8 U.S.C. §1401(a)):
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) […]
If the Supreme Court were to rule that U.S.-born children of aliens (at least, aliens not lawfully admitted for permanent residence) are not “subject to the jurisdiction thereof” for the purposes of the 14th Amendment, would that ruling also apply to INA 301(a)?
No. When courts interpret federal law, they generally presume that Congress, when enacting the law, was aware of relevant precedent, and that by choosing to use wording with a known interpretation, they meant the interpretation that existed at the time. When Congress enacted INA 301(a) in 1952, Congress meant for it to apply to the class of persons then considered “born in the United States, and subject to the jurisdiction thereof”. If the Supreme Court later changes what it thinks those words mean in the constitution, it would just mean that some of the people Congress meant to cover with INA 301(a) get their citizenship from statute rather than the constitution.
There is other evidence that Congress meant for INA 301(a) to be consistent with Wong Kim Ark. To see this, we only need to be familiar with the INA itself. The INA goes into great detail about the types of non-citizens who can be admitted to the U.S., the conditions they must meet in order to be admissible, and the conditions that lead to them becoming deportable. But it conspicuously omits discussion of what status a person would have if born in the U.S. as a non-citizen.
If Trump’s executive order were law, then a person born in the U.S. to two nonimmigrant parents (say, in F-1 or H-1B status) would become unlawfully present and subject to deportation immediately upon exiting the womb. They would be forced to leave the US and obtain a visa in order to rejoin their parents in a dependent nonimmigrant status such as F-2 or H-4.
If you don’t believe me, look at INA 101(a)(13)(A):
The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
and INA 235(a)(1):
An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.
and INA 212(a)(6)(A)(i):
An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
To put it all together: let us suppose that the U.S.-born child of two F-1 students is not a U.S. citizen. According to INA 101(a)(13)(A), the child has not been “admitted” into the United States, unless a CBP officer was present at their birth, I suppose. According to INA 235(a)(1), the child is present without having been admitted, and is deemed an applicant for admission. According to INA 212(a)(6)(A)(i), the child is inadmissible because they are present without having been admitted or paroled. Oh no! The baby cannot be admitted into F-2 status. They must leave the U.S. so that they can arrive at a port of entry and apply for admission there.
Congress did not provide any procedure for a person born in the U.S. without U.S. citizenship to be deemed to be in status. This is very unlike the case of countries that have abolished jus soli by statute, which have legislated, explicitly, that a non-citizen child born in the country is considered to have the status of either or both of its parents. Obviously, Congress did not include any such provisions in the INA because Congress believed that it was recognizing that those persons are already citizens, and as such, do not need to be admitted or to receive any immigration status [9].
(What about children of diplomats? They are covered under INA 102(1), which, essentially, states that they are not subject to removal as long as their parent retains their status as a diplomat accredited to the United States. The INS also created a regulation that gives persons born in the U.S. in diplomatic status the right to become permanent residents, without needing to qualify in any way for an immigrant visa, as long as they agree to give up their diplomatic immunity [10].)
Also, while older naturalization acts, such as the Naturalization Act of 1906, theoretically could have embraced persons born in the U.S. (assuming that they met the requirement of 5 years’ residence in the U.S. that would have applied to any other applicant for naturalization), the current Act of 1952 (as amended) introduced the prerequisite of a lawful admission for permanent residence, which as discussed above is not met by a person born in the United States. That means that, since 1952, anyone born in the U.S. without U.S. citizenship could not become a U.S. citizen without first becoming lawfully admitted for permanent residence, which is something that they could not do without first leaving the country. It seems very counterintuitive to imagine that Congress could have intended that certain parents could adjust status within the U.S. and become LPRs under section 245 of that Act, and eventually naturalize, together with any children they brought within them, while at the same time their children born in the U.S. would need to leave the U.S. first. Such absurdities arise if the U.S.-born children are not considered to already have U.S. citizenship from birth.
There is one additional reason to believe that Congress, in enacting the nationality acts of 1940 and 1952, meant “subject to the jurisdiction thereof” to include everyone except those with diplomatic immunity: the “subject to the jurisdiction thereof” proviso is actually absent from INA 304, relating to Alaska, and INA 305, relating to Hawaii. For example, the latter states:
[…] A person born in Hawaii on or after April 30, 1900, is a citizen of the United States at birth. […]
It would be extremely strange if Congress meant for the children of foreign visitors to be U.S. citizens if born in Hawaii in 1952 but not if born in California in 1952. Obviously, that’s not what they meant. Unconditional jus soli is the rule in Hawaii and Alaska as it is in the lower 48. [11][12]
Does that mean that if a foreign diplomat stationed in Washington D.C. goes to Hawaii on vacation and gives birth there, the child is a U.S. citizen? No, because the “subject to the jurisdiction thereof” proviso merely repeats the promise made to foreign diplomats that their children won’t owe allegiance to the country that the diplomats are accredited to. If the drafters accidentally forget to put a special exception into a general law, the special law still overrides the general one. In fact, Sen. Wade suggested that the “subject to the jurisdiction thereof” proviso in the 14th Amendment was not necessary in the first place if its only purpose was to exclude children of diplomats:
The Senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside “near” the United States, in the diplomatic language. By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States, although born in Washginton. I agree to that, but my answer to the suggestion is that that is a simple matter, for it could hardly be applicable to more than two or three or four persons; and it would be best not to alter the law for that case. […]
However, all senators agreed that the 14th Amendment was not meant to give citizenship to the “Indians not taxed”, and it is mainly for this reason that “subject to the jurisdiction thereof” had to be kept in.
Footnotes
[1] The category of Indians not taxed no longer exists; perhaps it ceased to exist in 1924, when Congress naturalized all Indians born in the United States, or perhaps at some later point when it had become well established that the presumption that Indians were exempt from federal law no longer held (see e.g. Federal Power Commission v. Tuscarora, 362 U.S. 99 (1960)).
[2] See for example Suffrage for those who intend to become citizens [Wikipedia].
[3] Chinese immigrants were first allowed to naturalize starting in 1943. See Magnuson Act [Wikipedia]
[4] Interestingly, the year after Elk v. Wilkins was decided, Congress enacted the Major Crimes Act, which gave the United States jurisdiction over certain major crimes committed by Indians against other Indians in Indian territory. It may be that, in the view of the legal experts at the time, all of the various ways in which the U.S. might exercise jurisdiction over Native Americans must have been present in order for them to be covered by the Citizenship Clause; not just criminal jurisdiction. At any rate, since all Indians born in the U.S. were given U.S. citizenship in 1924, we may never know the answer.
[5] For the purposes of the Immigration and Nationality Act, American Samoa, a U.S. territory, is considered to not be in the United States; it is an “outlying possession”. U.S. citizenship by birth in American Samoa is covered by INA 301(e). All other persons born in American Samoa are U.S. nationals without U.S. citizenship; INA 308.
[6] It is not clear whether a person born with dual citizenship could claim the benefits of the Bancroft Treaties. In U.S. legal philosophy, a person acquiring citizenship by birth outside a country is considered to be naturalized by operation of law upon birth, so, in theory, perhaps a person born outside the U.S., and having U.S. citizenship at birth, could have renounced their citizenship of their country of birth by living in the U.S. for five years. However, a jus sanguinis country might not have accepted this argument.
[7] A person who invokes their treaty rights to be discharged from military service is permanently barred from naturalization in the U.S., and if they lose their permanent resident status, they can never reacquire it. INA 212(a)(8)(A), 315(a).
[8] The USCIS Policy Manual states that a person born in the U.S. is considered subject to U.S. jurisdiction if at least one parent is; they are only an alien at birth if both parents are foreign diplomats. It is not clear by what legal authority USCIS reached this conclusion. The answer might be found in the traditional legal fiction that a foreign diplomat is extraterritorial, i.e., is treated as if they are not in the receiving country, even though they actually are. If only one parent is extraterritorial and the other is not, it is not possible to pretend that a U.S.-born child is.
[9] The INA does, however, provide a rule as to which country’s quota an alien should be charged to if they seek to immigrate to the United States and were in fact born in the United States (INA 202(b)). They are treated as if they were born in the country in which they now hold citizenship. This rule can be understood to apply to persons who were born in diplomatic status and to former U.S. citizens who have renounced or otherwise lost U.S. citizenship.
[10] It is not clear whether this policy is actually authorized by the INA, but no administration has attempted to withdraw it, and so it survives. See Matter of Huang.
[11] Persons born in Hawaii to Japanese citizens during World War II were still U.S. citizens. Although Japanese citizens were at that time enemy aliens, the Japanese had not actually occupied Hawaii. Note, however, that the Japanese did occupy Guam.
[12] The most likely reason why the “subject to the jurisdiction” condition was omitted from the Alaska and Hawaii provisions is that, as we have seen above, the inclusion of those words in the Fourteenth Amendment was primarily intended to exclude the “Indians not taxed“. INA 304 says explicitly what it means, using the words “except a noncitizen Indian”, while INA 305 doesn’t mention any exceptions, presumably because Native Hawaiians, unlike other indigenous peoples, were intentionally not excluded from becoming U.S. citizens when Hawaii was incorporated into the United States.