US Supreme Court precedence already exists regarding birthright citizenship
In 1898, the US Supreme Court issued a ruling on what constituted being born as a US citizen. Wong Kim Ark was born on US soil. However, both his parents were Chinese nationals. After visiting his parents in China, Ark returned just to be barred reentry into the United States. The Supreme Court decided that since both of Ark’s parents were in the United States lawfully at the time he was born, Art was a US citizen based on the 14th Amendment. The parents being in the United States “legally” played a key role in Art’s favor.
From the American Thinker:
Twelve years later, in Wong Kim Ark v. United States, the citizenship status of an American-born man of Chinese descent was the issue.
Wong Kim Ark had been born in San Francisco to Chinese nationals, and had been denied entry to the United States after returning from a visit to China as an adult. At the time, Chinese nationals were precluded by treaty from naturalizing as U.S. citizens. Nevertheless, after recounting the history of the common-law jus soli doctrine, and its influence on our Constitution, the Court held that, because the petitioner had been born to parents lawfully residing in the United States, he had been born within the “allegiance and protection” of the United States, and therefore at birth was “subject to the jurisdiction” of the United States. He was thus born a citizen under the Fourteenth Amendment.
That the petitioner’s parents had resided here with the permission of the United States was central to the Court’s holding. Chinese nationals who remain “subjects of the Emperor of China…are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here,” the decision reads, “and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens [lawfully] residing in the United States” (emphasis added). The Court explained that to “reside,” in this usage, means to live in a place with the intent to remain there, but not necessarily indefinitely. It is a broader category than “domiciled,” and could apply to long-term visa holders, as well as to lawful permanent residents.
The Court’s interpretation of the Citizenship Clause of the Fourteenth Amendment thus limits its application to children of aliens residing in the country with permission. This requirement implies that children born to foreign nationals living in the country without permission are not subject to its jurisdiction, and that mere tourists, since they are only visiting and do not reside here, also are not so subject. This crucial qualification of common law birthright citizenship by the requirements of both residence and permission therefore excludes from citizenship at birth children both of tourists and of those residing in this country without permission — that is, illegal aliens.
To disregard these requirements would involve interpreting the Court to mean that illegal aliens are within the “allegiance and protection” of the United States.
But the Court specifically stated otherwise, holding that Chinese nationals who were not permitted to reside in the United States were not within its allegiance and protection. The Court could hardly have held otherwise. The phrase “allegiance and protection” describes the reciprocal obligations of citizens and the state that are foundational to a nation. Since illegal aliens are at all times subject to apprehension and deportation, they can hardly be regarded as within the “protection” of the United States.
Additional Reading:
Canaan, G. (2025, May 22). Supreme Court: Children of Illegal Aliens or Tourists are not U.S. Citizens. American Thinker. Link.
Category: Editorial, Illegal Immigrants, Op-Ed
Get rid of the supreme court losers
They died a long time ago. Unless you are talking about the current court or the court itself both of which I prefer to keep.
they just keep hanging on…
https://youtu.be/t3bjMtqpGBw?t=7
Really? Don’t you think that the Founding Father’s idea of checks and balances are valid? You would prefer an executive unhindered by judicial review and being held to the limits of the constitution is better?
The fly in the legal ointment – if you say illegals are not subject to the jurisdiction of the country, logically they are only subject to said apprehension and deportation, not any other penalty for breaking a law. So breaking the law makes them immune to prosecution, only to being thrown out?
The courted noted that both parents were in the country legally at the time of the child’s birth therefore he was covered.
However they didn’t say specifically that if someone was in the country illegally that their issue wouldn’t be a non-citizen. That is the current point of contention and likely a position that will be troubling.
This however leads to an even bigger conundrum. Say the offspring who was never a US citizen has a child with another born in the US non-citizen. Then their kids do the same. (Trust me, it has already happened)
So a third generation American born person could be found to be a non-citizen and then sent where? To some country where they don’t speak the language or know a soul? A country that has never even heard of them and they never set foot in before. The court simply won’t allow that to happen.
So a third generation American born person could be found to be a non-citizen
That’s exactly the sort of question Congress should sort out by passing laws governing those cases, instead of asking the courts to magic a right into existence.
I’d favor granting citizenship to someone in those circumstances, but that’s a discretionary act based on the democratic process, not a Constitutional right that they should or do have.
Which, is why, in 1924 there was a law passed that just made all Indians here citizens because there were still people born of folk whose tribes hadn’t made treaties with and paid taxes to the federal gov’t.
You should read the court’s analysis in Elk, which is a) Supreme Court precedent, and b) exactly answers your question.
The birthright citizenship portion of the 14th amendment should’ve had an expiration date.
Like the subordinate “militia” clause in the 2nd, it would be better if they had clearly and succinctly said what they meant, without any embellishment.
There are two significant Supreme Court precedents regarding immigration, and it’s intellectually dishonest to discuss birthright citizenship without looking at both of them. People like the author of the American Thinker article who disguise outright advocacy for the children of illegals as legal analysis are engaged in deliberate deception.
Wong Kim Ark held that as someone who was born in the United States as the child of two parents, who were not only here legally, but were domiciled here, was entitled to birthright citizenship. That seems like the right answer – Wong was born not only in the US, but “subject to the Jurisdiction thereof” because, as legal residents, his parents owed allegiance to the US at the moment of Wong’s birth.
The other case – the one illegal immigrant advocates prefer to ignore – is Elk v. Wilkins. In that case, the Supreme Court held that an Indian who was born in the United States (and not on a reservation) was not entitled to birthright citizenship because his parents did not owe allegiance to the United States, and thus he was not under the jurisdiction of the US at the time of his birth. – in this case, the Supreme Court held that being subject to the jurisdiction of the United States meant more than a temporary legal jurisdiction based on being geographically in the United States. Wong did not overrule Elk and is distinguishable from Elk – that is, Elk is still good law – and Elk is much more on point for the status of children of illegal aliens than is Wong. Ignoring it makes it seem like birthright citizenship for illegals is a foregone conclusion – or at least the only outcome based on precedent, when, in fact, the opposite is true.
A cascade of conundrums will flow. Honestly, I’m here for it.
I swore an oath to protect this place and the ideals defining the AO. I’d expect those elbows close enough to rub near `nuf to the same cause.
You wanna be my countryman? Earn it.
You were born of my countrymen? Good, maintain it.
Ebrybody gotta chip in their buck-o-five.
^THIS^!
Agreed!
Ask and have permission to be here, your kid’s a citizen. Climb over the fence without asking, he ain’t.
Ain’t that “and subject to the jurisdiction thereof” clause something, left/libtards?