As the end of the Supreme Court’s 2025-26 term approaches, we will soon see a major decision on “birthright citizenship” under the Constitution. In Trump v. Barbara, the Court will review the preliminary injunctions placed by lower federal courts against President Trump’s Executive Order 14160. That order denied automatic citizenship to the children born to women who were in the U.S. illegally or through some temporary visa, unless the father was an American citizen or lawful permanent resident.
The issue has taken on significant political importance as the flood of people who are in the country in violation of American law or who use “birth tourism,” often through one of many companies which specialize in the trade, have children. Those children are said to be American citizens simply by having been born here, even though, in the first group, the parents have violated American law being here, or, in the second group, the child has no connection to the United States growing up and might be steeped in a culture which is alien, or indeed hostile, to the United States. Moreover, such children can become placeholders for other family members to gain entry to the U.S. under chain migration through what might charitably be called a very generous, if somewhat complicated, family-based visa system.
The question of constitutional law focuses on the first sentence of the 14th 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.” Whether merely being born on American soil makes one an American citizen under that sentence is a far more nuanced matter than the proponents of unrestricted birthright citizenship (most academics, the media, and the Democratic Party) assert.
Birthright Citizenship Versus Parentage Citizenship
There are two traditional bases for citizenship, ius soli (law of soil) and ius sanguinis (law of bloodline). Citizenship by bloodline was and is more common. Some nations use a combination of the two. Citizenship by bloodline means that the citizenship of one or both parents (traditionally the father) devolves on the child. Citizenship by soil is when the place of birth creates the citizenship, often referred to as “birthright citizenship.” American law today has aspects of both. To understand the state of American law on citizenship requires reference to the Constitution, statutes, and English common law inherited by the states.
English Common Law and the Inalienable Duties of Citizenship
English law traditionally based citizenship on ius soli. One was born in England, obtained English citizenship thereby, and could not relinquish that without permission from the king, to whom the duties of citizenship were owed. Once an Englishman, always an Englishman. “Natural allegiance,” wrote the 18th century English legal authority William Blackstone, is “due from all men born within the king’s dominion immediately upon their birth. [It] is a debt of gratitude which cannot be forfeited, cancelled, or altered, by any change of time, place or circumstance. . . . [T]he natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another put off or discharge his natural allegiance.” Natural allegiance acquired at birth was distinguishable from some process under the direction of the king or, later, Parliament by which a person “came to” citizenship (“naturalized” citizenship).
There are two points of note. First, that perspective makes what we call “birthright” citizenship more a “birthduty” citizenship. It is an essentially feudal notion that, having been born in England, one becomes part of the social order based on duties owed to the king. Obviously, one cannot abandon one’s duty to another (here, the king) without the other’s consent. Second, at least inferentially, if one was born in England as an alien, and already owed political loyalty through one’s parents to another ruler, one was not by birthright English. Thus, visiting merchants or diplomats could not confer English citizenship simply by having children born during their stay on English soil. However, other legal authorities claimed that even a visiting merchant who owed political loyalty to another ruler, by having placed himself under the king’s protection temporarily, had suffered a child born during his stay in England to have English citizenship and owe citizenship duties to the king. Needless to say, that position could create significant problems if the loyalty owed to the English king by birth conflicted with the loyalty the child owed through his parentage to another king.
The English approach was well-established even before Blackstone. In Calvin’s Case in 1608, the English Court of Exchequer determined that being born in England was not enough to confer citizenship. The parents of that child also had to be under the actual obedience to the king. The case used the term “legiance,” which is conceptually how we use “allegiance” today. The case also noted that legiance is sometimes referred to as “legal.” Thus, even if a foreigner who had a child while present only temporarily in England under protection granted by the king perhaps could produce birthright citizenship for the child, those who were there illegally (such as invading enemies) had assumed no legiance to the king. Such persons having children while in the king’s realm could not produce birthright citizenship.
Early American Approach and the Role of Ius Soli
In the United States, citizenship was based on being present in the United States when the “People of the United States” established the Constitution. Prior to that, citizenship was somewhat murky, as the several states controlled immigration. An inchoate concept of American citizenship existed, derived from state citizenship. Still, one might be a “Maryland man,” if one lived in Maryland at the time of independence, and thereafter if one was born there.
The influence of the common law ius soli weighed heavily on those states and on American law. Law dictionaries used by Americans, including during the adoption of the Constitution, used the English requirements: A natural citizen was one who was born in England, and whose parents had placed themselves in obedience to the king. Adapted to American independence, this meant born within that state and having assumed allegiance to its government. There was also, however, an early antipathy to birthright citizenship triggered by the obnoxious practice of the British Navy to stop American ships on the high sea and “impress” into British service sailors who were born in England. Although those sailors might have lived in the United States and become Americans, the British considered them still to be Englishmen by ius soli, owing duties of citizenship to the king. Remember, “[T]he natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another put off or discharge his natural allegiance.”
Once the Constitution was in place, people born thereafter whose ancestors had been part of the “People of the United States,” and those who came thereafter but became naturalized, were citizens of the United States. Congress early on, in 1790, began to legislate the necessary requirements to become a naturalized citizen. However, it was not clear whether citizenship by birth came from being born in the United States (“birthright citizenship”) or having a parent who was a citizen of the United States (“bloodline citizenship”). Or were both required? Moreover, if it was created by being born in the United States, did the “United States” include only the states whose people adopted the Constitution, or did it also include the later-admitted states and the territories?
While it was quickly agreed that all states, current or subsequently-admitted, were equals, as to the territories, that question was not addressed by the Supreme Court until around the turn of the twentieth century in the Insular Cases arising from the Spanish-American War. The answer was that birth in some, “incorporated,” territories (those destined for eventual statehood, e.g., Arizona, Oklahoma, Alaska and Hawaii, at the time) produced American citizenship. Birth in other territories (Puerto Rico, Guam, etc.) itself could not. People born there were American “nationals,” but not American citizens. Congress later conferred citizenship on those persons by statute, so that persons born in Puerto Rico are American citizens. Today, various statutes address this issue. For example, residents of American Samoa continue to be American nationals only.
Early American Approach and the Role of Ius Sanguinis
As American diplomats were sent to foreign postings after 1790, and as Americans began to travel abroad, consideration had to be given to whether children born to such peripatetic Americans were American citizens. Congress in the Naturalization Act of 1790 addressed that matter by applying ius sanguinis, initially requiring that both parents must be American citizens. Thus, it was not necessary that one be born in the U.S. to be a natural-born citizen. Congress could legislate otherwise under its power as representatives of the nation to address fundamental aspects of national sovereignty.
The Supreme Court Enters the Citizenship Debate in Dred Scott v. Sandford
An unexpected entrant in the citizenship debate came in 1857, in the person of Chief Justice Roger Brooke Taney, who, speaking for a 7-2 majority of the Supreme Court, decided that Dred Scott, born a slave, was not a free man from having resided temporarily in non-slave jurisdictions. Taney asserted that United States citizenship and the rights attendant thereto came from the Constitution and Congress, not from state citizenship. Neither slaves nor free blacks were considered a part of the People of the United States for whom the Constitution was established, wrote Taney, as they did not come here of their free will and from voluntary association. That left Congress to make them citizens under the power to make uniform laws of naturalization or the implied power to legislate concerning fundamental traditional matters of national sovereignty. Congress had not done so. For example, the 1790 and 1795 Naturalization Acts specifically limited the process to white applicants.
Taney had some justification in constitutional history for his holding that slaves and their progeny were not citizens of the United States, because they were disqualified from assuming the political responsibilities of citizenship even if they were born here. The Court majority’s gratuitous extension of that disqualification to free blacks and their progeny was constitutionally and factually weaker and conflicted with ius soli. It was also unnecessary to the resolution of the case. At the country’s founding, the states, free or slave, including those in the South, treated the political rights of free men alike, regardless of color. Southern states retreated from that equality later. By contrast, the slave states (as most states were at the country’s founding), did not extend their citizenship to slaves.
The Civil Rights Act of 1866 and the Two-Part Test for Citizenship
The intensity of the divisions in the country before and after the Civil War, and the perception of the Dred Scott Case as a symbol of the institution of slavery and as a trigger of the Civil War, impelled Congress, once slavery was abolished by the 13th Amendment, to address the citizenship of the former slaves, as well as of previously free black Americans. In the Civil Rights Act of 1866, the first statute of its type, Congress wrote, “all persons born in the United States and not subject to any foreign power…are hereby declared to be citizens of the United States.” The words “not subject to” conveyed that the person was not under the political control of, and did not owe political obligation to, a foreign country. For a child, the words “not subject to any foreign power” refer to the parents’ status, which attaches to the child at birth.
Because the catalyst for the law was to address the status of blacks and to overrule Taney’s Dred Scott opinion, Congress could simply have adopted the ius soli in pure form. The new freedmen were born in the United States, after all, and likely of parents who were also born here. They were not visitors or invaders owing loyalty to another ruler. Congress obviously sought to address more broadly the concept of citizenship during an age of significant immigration. Therefore, including the second part of the test in the 1866 Act is important.
For reasons not relevant to these observations, there was considerable doubt whether the 1866 Civil Rights Act, adopted by Congress under its enforcement power under the 13th Amendment, was constitutional. It is beyond historical doubt that a major impetus for the adoption of the 14th Amendment was to provide a more solid constitutional basis for the 1866 Act. That is confirmed by explicit statements to that effect by the House and Senate managers of the 14thAmendment, and by the fact that Congress re-passed the statute verbatim in 1870, after that Amendment was adopted. Therefore, historians pay close attention to the interplay of language between the 1866 Act and the 14th Amendment.
The 14th Amendment’s Text and the Meaning of “subject to the jurisdiction” of the United States: Submission to Law or Political Allegiance?
As noted above, the first sentence of the 14th Amendment confers American citizenship on all person born or naturalized in the United States, and subject to the jurisdiction thereof. This sentence affirms the language in the 1866 Act. It provides a general definition of citizenship. It adopts aspects of the ius soli (“born in the United States”), but the inquiry does not end there. The sentence rejects Chief Justice Taney’s departure in Dred Scottfrom the general framework of the Anglo-American common law about citizenship, but it does not reflexively incorporate that common law approach in toto. Indeed, at no point in the Congressional debates on that sentence is there an explicit reference to the common law.
What, then, does “subject to the jurisdiction thereof” mean? “Jurisdiction” is a very malleable and adaptable concept. It often means simply being subject to the control of the laws of the United States and of its courts. If Congress intended such a limited, strictly legal conception of jurisdiction, the clause is superfluous. Imagine the 14th Amendment without that provision. If being born in the U.S. makes one a citizen, one is subject to its laws and courts at birth even without the added phrase. This is not optional or voluntary. The United States can exercise its legal jurisdiction over that person based on his or her citizenship. That position is consistent with the understanding of English common law going back centuries.
From a different perspective, the ability of the United States to make any person subject to its laws and courts, regardless of citizenship status, depends on power to enforce those laws. Thus, a person present in the United States can be held to account in its courts and is bound by its laws. American laws apply to that person due to the sovereignty of the United States over its territory. In that limited, legal sense of the term, any person is “subject to the jurisdiction” of the United States while here. The United States might choose not to apply those laws in certain situations, such as when international customs of diplomatic immunity are involved, but that is a matter of political discretion. In any case, “citizenship” does not define that jurisdiction, sovereignty does.
Nor can this language mean that one is an American citizen if born in the United States, but only as long as one is physically within the country. American citizens do not lose the status and the rights of citizenship (or the obligation to obey applicable federal laws) merely by traveling to an area not under the jurisdiction of the United States, i.e., not actively controlled by its law and courts.
Under this essentially “legal” reading, then, the clause “subject to the jurisdiction” of the United States is neither necessary (if citizenship attaches by birth in the United States) nor sufficient (if one is a foreigner who gives birth to a child in the United States) to establish citizenship. The clause is superfluous.
How to resolve that textual mystery? One must start by reasonably interpreting language in the Constitution to avoid superfluousness. The answer is that the language is analogous to that of the 1866 Civil Rights Act. It is a reference to political obligation and loyalty, in short, allegiance, to the United States instead of to a foreign prince, not merely short-hand for legal submission.
The Senate Debates
The debates in the Senate over that language confirm this understanding. Several times, the question was asked whether this would grant citizenship to a child of a foreigner visiting the U.S., who happened to have a child while here, or to Indians living on reservations. The questioners were uncomfortable with that notion. (See, for example, the remarks on May 30, 1866, of Senators James Doolittle of Wisconsin and George Williams of Oregon.) The response consistently was that this provision would not grant citizenship to the children born here of diplomats or other foreign sojourners. Nor did it apply to Indians on reservations because they were only partially under the jurisdiction of the United States, in that they owed loyalty to their tribe or nation. (See, the remarks that same day of Senator Lyman Trumbull of Illinois, the Senate Judiciary Committee Chairman, and Senator Jacob Howard of Michigan, the Senate floor manager of the 14th Amendment.)
Elk v. Wilkins and the Requirement of Political Allegiance
Subsequently, the Supreme Court concurred with that understanding of the language as applied to American Indians born on reservations. Such Indians were born “in the United States” in a geographic sense, and the federal government certainly could reach them through its courts and laws, making them subject to the legal jurisdiction of the United States. But as subjects of “semi-sovereign” nations “under the tutelage” of the federal government, they owed political allegiance to their tribes. As held in Elk vs. Wilkins in 1884, they were not citizens by virtue of the 14th Amendment, even if they left the reservation and sought to establish political allegiance to the United States alone. The problem was not the geography of their birth or their being subject to federal law, which they were. Rather, at their birth they lacked full political allegiance to the United States. Only later, in 1924, did Congress generally confer U.S. citizenship on such Indians by statute, thereby affirming Congress’s agreement with the Supreme Court that birth within the U.S., too, is neither necessary (for children born to American parents abroad) nor sufficient to be a citizen of the U.S.
The Supreme Court’s Legacy of Confusion through the Wong Kim Ark Case
By 1884, it was clearly established by the two houses of Congress, three-fourths of the states, and the Supreme Court in Elk that the 14th Amendment meant that, in the absence of a statute providing otherwise (e.g., for children born abroad of American citizens or for naturalization of foreigners), citizenship required that the person have been born in the United States and have assumed political allegiance to the United States though his or her parents.
Attempting to get around this history, the advocates of birthright citizenship point for support to language in the Wong Kim Ark Case in 1898. Wong was born before or in 1873 in the United States to parents who were Chinese subjects, but who had lived in the U.S. for some years. They were unable to obtain naturalized American citizenship due to then-existing restrictions, such as those under the Naturalization Act of 1870. Wong’s parents had entered the U.S. freely and consistent with American law and had operated a business in San Francisco. Wong traveled to China in 1894 and was refused re-entry into the U.S. the following year under the 1888 version of the Chinese Exclusion Act. In a test case, he challenged his confinement on board a ship. The case eventually reached the Supreme Court. That court held that Wong was an American citizen under the 14th Amendment, and that the government violated his constitutional rights by denying him re-entry.
This suggests that being born in the United States suffices to impart citizenship. However, the manner in which the Supreme Court phrased the issue before it is important: “Whether a child born in the United States, of parent[s] of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China [i.e., aliens], but have a permanent domicile and residence in the United States, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.” This statement was not inconsistent with some previous lower court cases. It shows that there were factors at play other than merely place of birth, else the Court could simply have said that he was a citizen because he was born in the U.S.
The statement thus sets out three criteria to be deemed a citizen under the 14th Amendment, if one’s parents are aliens: 1. Born in the United States; 2. Parents have a permanent domicile and residence in the United States; 3. Parents are not foreign diplomats.
There are several problems with the opinion, starting with the very statement of the issue. For one, limiting the exclusion of citizenship under the clause to the children born here of diplomats conflicted with language in the 1873 Slaughterhouse Cases, where the Supreme Court had opined, “The phrase, ‘subject to its jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.” The Wong court declared that language to have been irrelevant to the issue in the Slaughterhouse Cases and, thus, not a precedent. Even if the Wong Court was technically correct that the decision in the earlier case did not hinge on that point, the interpretation of that language in the Slaughterhouse Cases by justices who had lived through those debates and were a quarter-century closer to those events should have been given much weight.
The “Born in the United States” Element of Wong Kim Ark
The Wong court’s analysis is also questionable on its own terms. Justice Horace Gray, writing for the majority, said that common law (ius soli) should apply. True, but no one claimed that ius soli did not apply at all. It clearly did, through the first part of the 14th Amendment’s first sentence. The point of controversy was, and is, the second part of that sentence, which precluded citizenship for those persons who, though born here, were not subject to the jurisdiction of the United States.
Moreover, as noted previously, under traditional common law, one born in England as an English citizen could never renounce that citizenship and perpetually owed duties of citizenship to the king. It would have been a serious violation of another country’s sovereignty for the king of England, under the claim that they were citizens by happenstance of geographic birth, to conscript into military service or to tax citizens of another country extraterritorially who happened to have been born in England while their parents visited there. That is why Americans, post-independence, so vigorously protested, almost to the point of war, the English practice of impressing “English” sailors from American ships. As the dissent in Wong noted, American practice rejected the common law, for example, by allowing American citizens to shed their citizenship by expatriation.
Wong also conflicts with Elk v. Wilkins, mentioned earlier. If American Indians on reservations are not citizens under the 14th Amendment’s language, even though they are born in the United States and subject to its laws and courts, simply because they had political loyalty to their semi-sovereign tribes when born, it makes no sense that children whose parents were foreign visitors should be citizens by the accident of their birthplace. Those foreigners still owed political loyalty to the entirely distinct sovereigns that were their native countries and had made no effort clearly to create allegiance to the United States before their children were born. As with the American Indians in Elk, merely moving to the United States is not enough, and the political allegiance of children at their birth is inherited from their foreign parents.
Finally, and perhaps most significantly, Wong conflicts with the understanding of that provision as declared emphatically and repeatedly during the debates on the 14th Amendment in the Senate. Along that line, as the Wong dissent by Chief Justice Melville Fuller noted, the Civil Rights Act of 1866 included only those born here and “not subject to a foreign power,” which has the same meaning as “subject to the jurisdiction [of the United States],” especially in light of the close political and constitutional connections between that statute and the 14th Amendment.
The “Parents Are Not Diplomats” Element of Wong Kim Ark
The Wong Court sought to finesse that point by focusing on the fact that Wong’s parents were not Chinese diplomats when he was born. The idea is that diplomats enjoy diplomatic immunity from American laws and court proceedings. Thus, they are “not subject to the [strictly legal] jurisdiction of” the United States. Although diplomatic immunity is a long-standing aspect of international relations through custom, treaty, statute, and simple desire to avoid retribution, ultimately the existence and scope of that immunity is a matter of political choice by the sovereign of the territory on which the diplomat’s acts occur. A better way to apply that language in the 14th Amendment to the situation of diplomats is that diplomats in the service of their home countries are subject to a foreign power and retain their political loyalty to their home countries. They have no allegiance to the United States.
That the U.S.-born children of foreign diplomats are not citizens of the United States under the 14th Amendment is straightforward. However, that stifled statement of the issue by the Wong Court ignores the references to non-diplomats in the Senate debates on the 14th Amendment, as also recognized by the Slaughterhouse Court. Such temporary foreign visitors, like foreign diplomats, though subject to the legal jurisdiction of the United States while in this country to whatever extent Congress decides, also have no allegiance to the United States.
The “Parents have a Permanent Domicile and Residence in the United States” Element of Wong Kim Ark
It defies reason to suggest that those who are here temporarily as visitors or students have a “permanent domicile and residence in the United States” when they give birth to a child. “Temporarily permanent” would seem to be as much an oxymoron as “jumbo shrimp.” Nevertheless, supporters of unrestricted birthright citizenship argue just that.
Alternatively, they claim that at least those who are here illegally have established “permanent domicile and residence,” consistent with the Wong Court’s framing of the issue. There are several problems with that formulation. First, “permanent domicile and residence” is not an element under the 14th Amendment. Second, that phrase is not the same as “subject to the jurisdiction of” the United States, certainly not in the sense of political allegiance. Third, entering a country or residing there in violation of its laws hardly establishes political allegiance to that country and obedience to its laws. Fourth, those who are here illegally are rather readily subject to deportation, so they cannot establish “permanent” domicile. Fifth, one cannot through one’s own conduct establish domicile (legal residence) contrary to the laws of the jurisdiction.
There is some language in Wong itself as to the scope of the 14th Amendment which is liable to be read broadly. The language limits to very few the exceptions to what the Court reads essentially as an absolute creation of birthright citizenship. Of course, that broad language was unnecessary to a resolution of Wong’s lawsuit. Under its facts, Wong at most supports the proposition that the 14th Amendment definition of citizenship applies to those who are born here to parents who, though technically foreigners, are not in the country in violation of immigration laws and who have settled here.
This meshes with Supreme Court decisions that the scope of constitutional rights may depend on whether you have formed a sufficiently firm relationship with the U.S. to be part of the “People of the United States.” Wong Kim Ark’s parents had violated no immigration law. They were legal residents; they just could not become naturalized American citizens. They were domiciled in the United States, having been here for years, firming up their connection with American society. Wong does not involve foreigners who are here contrary to our laws, foreigners who are mere visitors, or foreigners who travel to the U.S. to have a baby only to return forthwith to the place to which they owe allegiance.
The Pressure of Going with Precedent, No Matter Its Merit
The reason the birthright citizenship advocates cling to Wong is because that case has a certain (superficial) simplicity, is well over a hundred years old, has been cited by the Supreme Court on several occasions, and has been taken as bedrock law by lower courts. Moreover, the federal government through the Department of State has not helped matters, having taken policy positions that stretch the language of the Wong Case language to points even the Court did not specifically address. The State Department has interpreted Wong as standing flat out for the proposition that someone born here is a citizen, even if the parents are here illegally or temporarily. For institutional reasons of protecting its image of infallibility, not because Wong is correct constitutional law, the Supreme Court is not likely to overturn such a precedent.
There is certainly plenty of authority to reject Wong entirely or to distinguish it on its facts. That is particularly easy as to birthright citizenship for the U.S.-born children of temporary visitors. Even under the Wong Court’s own formulation, such visitors have not even established “permanent residence,” much less “domicile.” Likewise, the Court might be influenced by the shady business of birth tourism, that is, citizenship for the price of a bus or airplane ticket plus two nights’ stay. In China alone, hundreds of companies exist to create automatic American citizenship for children who do not have any allegiance to the U.S. Estimates of such children are well in excess of a million.
The big political plum for the supporters of unlimited birthright citizenship, however, is to have it apply to the children born here to persons who are in the United States in violation of law. The many millions who would qualify for that would, in the (perhaps wishful) estimation of these supporters, alter the political balance in favor of the Democratic Party.
The “Fairness” and “Practicality” Arguments
A predictable argument has been that it would be unfair to disrupt the reasonable expectation of persons who came into this country in violation of immigration laws or to engage in birth tourism. After all, they relied on the (incorrect) holding of the Wong Case and on the State Department’s overly broad interpretation of that holding that their children, just by being born here, would be American citizens.
A related argument made in the current litigation raised concerns about determining how long someone had to be here to establish domicile. Therefore, the argument went, for practical reasons it would be best just to look at place of birth, pure and simple. One might note that, by contrast, the Court just this term was unfazed about concerns raised by some justices about the practicality of returning hundreds of billions of dollars of tariff revenue already collected, and instead left how much had to be paid, to whom, and in what manner to be worked out. There, the constitutional principle overrode concerns about practicality. But that was then, and this is now.
Possible Alternative Approaches Instead of Upholding Wong
A response to those arguments might be to resign oneself to an un-Solomonic remedy and “cut the matter in half,” i.e., to limit the damage from Wong Kim Ark to what has already occurred. The Supreme Court could distinguish or overturn that case but make the decision prospective only. In other words, now-living children who were born of parents who were here contrary to our laws or who were mere temporary visitors, i.e., children who, like the American Indians in Elk, had no allegiance to the United States at birth and thus were not “subject to the jurisdiction thereof,” would not lose their birthright citizenship. Only such children born after the decision would be affected. While that would be unorthodox in constitutional law decisions, it is not an unheard-of approach.
Another approach would be to push the matter into the hands of the political departments of the government, where it really belongs. As a matter of constitutional law, it is clearly not a stretch to reject the fundamentalist position of the birthright citizenship proponents who claim to rely on Wong Kim Ark. It is the absolutist interpretation of the Wong Case which is a stretch of constitutional law. If the Court were to limit or even overturn Wong, the result would not be to abandon the children born in the United States of aliens who were here in contravention of law or on a temporary permit.
Congress could still pass laws to extend citizenship to them in the same manner as it did for American Indians after Elk or for persons born in Puerto Rico, Guam, and the Virgin Islands, i.e., those not born “in the United States.” The 14th Amendment does not preclude such alternative eligibility for citizenship. Since 1790, Congress repeatedly has exercised its power to determine qualification for American citizenship, a fundamental matter of national sovereignty. A statutory approach would allow for the balancing, now and in the future, of many factors which affect the complex issue of immigration and citizenship. Our concerns are far different than those which animated the adoption of the 14thAmendment, that is, to assure citizenship for black Americans who were born here, and also far different from those which produced the Wong opinion. Unnecessarily and, worse, incorrectly constitutionalizing a matter of public policy robs the system of flexibility to respond to changing social, economic, and political needs.
With much regret at the prospect, I expect the Court to uphold birthright citizenship. Look for a splintered court, with a series of separate opinions. If the oral arguments are an indication, a small group of dissenters will discuss the history behind the adoption of the 14th Amendment, cite to the Senate debates to show the contemporary understanding of the language of the citizenship provision, analyze the Supreme Court’s pre-Wong decisions, carefully examine the specific question presented in Wong Kim Ark, and conclude that Wong does not stand for the proposition that children born here of parents who have failed to establish permanent domicile, i.e., of foreign visitors or of foreigners present in violation of immigration laws are citizens by virtue of birth.
The majority and the concurring opinions will focus on a broad reading of Wong Kim Ark, a lone and inapplicable case, on institutional pride about precedents, and on emotional appeals to fairness and equity. The latter group will win to the detriment of the country and the Constitution.
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