The Supreme Court ruling on birthright citizenship is being interpreted WRONGLY


From:,  by Ken Klukowski,  on Aug 27, 2015,  see the article HERE.


Advocates of birthright citizenship are finally getting their act together, moving away from commentators who are manifestly clueless on the legal arguments for and against the proposition that the Fourteenth Amendment guarantees citizenship to every child born in America, shifting their focus to lawyers and scholars who have seriously studied this issue and can give a serious defense of birthright citizenship—a serious defense that, nonetheless, is wrong.

Legal analysts are starting to focus on the best case for birthright citizenship: the Supreme Court’s 1898 United States v. Wong Kim Ark decision. To be fair, it should be noted that not all boosters of birthright citizenship are liberal or establishment types; several outstanding conservative legal scholars believe these arguments are persuasive.

But while many of these arguments are thoughtful, Americans should still reject them for the reasons that Breitbart News has discussed in our first four reports in this series. Given the increased focus Wong Kim Ark is receiving, additional explanation is helpful to show that the Fourteenth Amendment mandates citizenship only for children born to parents who are not citizens of any other country. Children of foreign parents are only entitled to citizenship if Congress chooses to grant citizenship more freely than the Constitution requires, which Congress rightly does because many foreign-born immigrants are great assets to this nation.

As we have discussed in our previous reports, the Fourteenth Amendment’s Citizenship Clause says that citizenship is guaranteed to anyone who is born in the United States “and subject to the jurisdiction thereof.” In 1873, the Supreme Court weighed in on the meaning of this phrase, and then expanded upon its explication in 1884, to hold that this clause applies to those who have complete and undivided allegiance to the United States because they do not owe allegiance to a foreign nation. Congress can grant citizenship more broadly than that, but the Constitution does not require it.

Then in Wong Kim Ark in 1898, the Court announced out of thin air that the Citizenship Clause would not allow Congress to “deny citizenship to children born in the United States of foreign parents … [who are] not in the diplomatic service of a foreign country.” This effectively overruled its 1884 case and was unsupported by the congressional or ratification debates from the adoption of the Fourteenth Amendment in 1868.

This outlier decision from the Supreme Court is the reason legal scholars debate birthright citizenship today. As Professor John Eastman has explained, “It is that erroneous interpretation of the Citizenship Clause, adopted 30 years after adoption of the Fourteenth Amendment, that has colored basic questions of citizenship ever since.”

But even Wong Kim Ark should not be construed as requiring birthright citizenship. The United States had entered into a treaty with China, under which Chinese citizens in this country could never be made American citizens. As a consequence of that treaty, under federal law at the time, immigrants from China could never become exclusively “subject to the jurisdiction” of the United States.

However, the Court explicitly noted that the person in this lawsuit, Wong Kim Ark, had been born on U.S. soil to a Chinese couple who had established legal domicile in the United States. That is an important distinction, in that “domicile” means they were lawfully present in this country, intended to stay here permanently, and had renounced all connection to China as much as federal law at the time would allow.

Thus, they did not have the divided allegiance between this country and any other country (such as China) that Breitbart News’s previous reports showed was a central concern for those who adopted the Fourteenth Amendment. The man in question had been born to two foreign-born parents who were legally and permanently residing in the United States.

The dissenting justices explained thoroughly why the majority misconstrued the Amendment’s jurisdictional language. But even so, the Court majority’s incorrect decision in Wong Kim Ark need only be considered a binding decision for children born to lawful permanent residents of this country. The broader language used by its author, Justice Horace Gray, is dicta: a legal term meaning reasoning that was not necessary to reach the Court’s conclusion in the case, and therefore is not part of the Court’s holding. Instead, the Court’s ruling is only controlling for children born to permanent, lawful residents in this country, a distinction that excludes illegal aliens.

In addition to all these reasons, the Court’s sweeping pronouncements cannot be correct because Justice Gray’s language is so broad that it would even include children born to hostile foreigners here to work harm to the American people, perhaps as spies or saboteurs. As Eastman concluded:

The notion that the framers of the Fourteenth Amendment, when seeking to guarantee the right of citizenship to former slaves, also sought to guarantee citizenship to the children of enemies of the United States who were in its territory illegally is simply too absurd to be a credible interpretation of the Citizenship Clause.

Ken Klukowski is legal editor for Breitbart News.


Since those who insist that the Supreme Court has ruled and therefore the issue is closed, they either forget or choose to ignore the difference between the Wong Kim Ark case and the current question as it pertains to illegal alien parents. I think that Mr. Klukowski makes the point in his article that perfectly illustrates the “allegiance” difference between present-day parents who are in the U.S. illegally and still hold citizenship in the country of their origin – not the U.S.  – and Wong Kim Ark whose parents were here legally and had renounced their allegiance to China.

Let’s hope that cooler (and wiser) heads soon prevail and we can correct the “anchor baby” issue promptly and stop the insanity.





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10 Responses to The Supreme Court ruling on birthright citizenship is being interpreted WRONGLY

  1. Buck says:

    It doesn’t matter. If you go back to the SCOTUS they will interpret their own decision wrongly, too.

    • Garnet92 says:

      I can’t quote the statement, but part of the 14th specifically cedes to Congress the ability to write immigration laws. Congress made the changes that affected foreign diplomats, why can’t Congress revise the amendment without a convention? Seems to me that is their right.

  2. Hardnox says:

    Excellent post. So this issue has been misconstrued since 1898 and no one has challenged the misapplication?

    Somehow, that can’t be right. Foreign nationals working here temporarily having kids aren’t automatically American citizens, neither are the offspring of diplomats.

    Selective application?

    • Garnet92 says:

      Actually, Congress made those “adjustments” to the law – which makes me wonder why Congress can’t make another “adjustment” to fix it. Of course, the problem is that the dems and Odumbo all want the Anchor Babies interpretation to remain.

  3. Kathy says:

    This is what I was talking about yesterday – we’ve been fed that lie for so long it eventually became the truth and accepted by all, until Trump Team came along and said hey, wake up.

    In the meantime, millions of anchor babies have been dubbed US citizens and that can’t be undone, it can only be stopped, but it will take a huge battle.

  4. AfterShock says:

    The 14th amendment created a specific class of citizens and persons similarly situated i.e. black former slaves and their progeny. One cannot claim the rights secured to the class created by the 14th amendment unless one meets the criteria of being similarly situated within the class for whom the 14th amendment was intended.

    The words “…and subject to the jurisdiction…” literally mean being “not subject to any foreign power”. It’s really that simple. The Sup Ct in the Wong Kim Ark suit, err’d in that it established another class of individuals treated by the 14th amendment. That because Asians were not blacks, they were not held as chattel from time in memorial by the original colonists and the civil war was not fought on their behalf.

    There was no constitutional basis nor power for the Sup Ct to in effect legislate another class beyond the scope of the 14th amendment. That was their error. But even at that, this new class was narrowly defined by the particular circumstances of Wong Kim Ark’s case. Anyone seeking to be considered part of that class must be similarly situated, meaning the parents of a newborn in one of the United States must be or have been “legal permanent residents” domiciled in one of the several States and not subject to the jurisdiction of any foreign power, One could also argue that they must be Asian or of Chinese origin.

    No matter how badly the progressives want it to be otherwise, the fact is that illegal aliens — and that is what they are if not here via the established rules of immigration — are not within either class, black former slaves nor Asians or persons born of permanent legal — US — residents domiciled within one of the united States of America.

    • Kathy says:

      Great response and if I understand this right, it boils down to no, the anchor babies born here are not legit US citizens.

      Anyone remember how long we’ve been doing it wrong? I have to wonder why nobody ever questioned it before now and what happens now. Odds are we carry on business as usual.

    • Garnet92 says:

      Nicely stated Aftershock (nice to see you here) and what you described follows my research as well. The Wong Kim Ark parents were LEGAL residents of the U.S. and , by agreement with China, could not be made American citizens – and thus were NOT subject to the jurisdiction of the U.S. in the citizenry sense. Re-interpreting that ruling to cover ILLEGAL residents is just plain wrong.

  5. Uriel says:

    Every constitutional lawyer has said this is wrong. It’s another case of leftist abuse said often and loudly enough to make a lie seem truth. SCOTUS is leftist as Obama made sure his lackies were onboard.

    • Garnet92 says:

      The only way to interpret the law to include ILLEGAL alien parents is to ignore the actual meaning of the law in deference to the democrat’s intent to flood the country with new drains on our infrastructure (think Cloward-Piven) and new democrat voters.