What do the words “and subject to the jurisdiction thereof” mean?

A Legal Analysis of United States v. Wong Kim Ark

The first sentence of Section 1 of the Fourteenth Amendment to the United States Constitution, also known as the “Citizenship Clause,” reads as follows:

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. (Emphasis supplied.)

It sounds so simple. I have been a licensed attorney for more than thirty years. Until recently, if someone had asked me when a person is “subject to the jurisdiction” of the United States, I would have quickly and without hesitation responded: “Anytime that U.S. law can be applied to them.” For example, if a foreign citizen illegally crosses one of our borders and then commits a crime in the United States, a U.S. law enforcement officer can arrest them, a U.S. prosecutor can charge them, and, if they are convicted of having committed a crime, a U.S. court can fine and imprison them. I assume that most Americans would agree with all that. The reason why the government can take these actions is because such a person is “subject to the jurisdiction” of the United States. It really is quite simple and straightforward.

Not so fast! A January 23, 2025, press conference was broadcast on YouTube in which I heard a Republican congressman from Texas declare: “A person in the United States illegally [is] not subject to the jurisdiction thereof, because that’s what the Fourteenth Amendment says.”[i] What? Why would a Republican congressman from Texas be saying that the laws of the United States do not apply to illegal aliens? If they are not subject to our jurisdiction, then our laws cannot be applied against them. How are we supposed to deal with illegal aliens and the things they do here if they are not “subject to the jurisdiction” of the United States?

Please excuse my mock incredulity. The congressman’s statement is much easier to understand when considered in context.

Three days before the above-referenced press conference, on January 20, 2025, President Trump signed an Executive Order (EO) purporting to end so-called “universal birthright citizenship.” In essence, the President’s EO seeks to invalidate any interpretation of the Fourteenth Amendment which holds that children born in the United States to illegal alien parents are constitutionally entitled to United States citizenship. The President’s action has generated a significant amount of controversy. Suddenly, the question of who is “subject to the jurisdiction” of the United States is no longer that simple.

The entirety of Section 1 of the Fourteenth Amendment to the United States Constitution reads as follows:

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. 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.

As alluded to above, the words that have received the most attention in the wake of the President’s action are “and subject to the jurisdiction thereof” in the opening sentence. Advocates and opponents of universal birthright citizenship have taken differing positions on what these words mean. The controversy is less about the merits of the President’s desired policy than whether it can be lawfully accomplished via executive order. Regardless, most commentators appear to acknowledge that the resolution of this controversy is dependent on the answer to the question: What do the words “and subject to the jurisdiction thereof,” as used in the Citizenship Clause of the Fourteenth Amendment, mean?

The meaning of the phrase “and subject to the jurisdiction thereof,” as it was used in the Citizenship Clause of the Fourteenth Amendment, was explicitly addressed in the United States Supreme Court’s 1898 decision in United States v. Wong Kim Ark.[ii] References to the Wong Kim Ark case have become ubiquitous in the ongoing public discourse that has arisen in the wake of the President’s Executive Order. Advocates for universal birthright citizenship argue that the Wong Kim Ark decision settles the question definitively in their favor; opponents of universal birthright citizenship, and supporters of the President’s Executive Order, argue that it does not.

I submit that a careful reading of the majority opinion in Wong Kim Ark—which, in its entirety, comprises fifty-three pages—definitively articulates the meaning of the words “and subject to the jurisdiction thereof” as they are used in the Citizenship Clause of the Fourteenth Amendment. My intention herein is to present a comprehensive analysis of the Wong Kim Ark opinion in terms of how it answers the question posed in the title of this paper. My analysis will focus on how the decision examined and, ultimately, interpreted the meaning of the pertinent words used in the Citizenship Clause in the Fourteenth Amendment. It will be based on the actual language contained in the Wong Kim Ark opinion and other decisions of the United States Supreme Court, all of which will be quoted verbatim with citations in the endnotes.

This paper will not address the question of whether the practice of universal birthright citizenship should or should not be continued as a matter of policy. This is not to ignore the fact that, in my opinion, the policy arguments against universal birthright citizenship are overwhelming while those in favor of continuing it are, again, in my opinion, unpersuasive. Be that as it may, my purpose is to conduct a legal analysis, not a policy analysis. The ultimate issues that this paper will focus on are what the Wong Kim Ark opinion actually stands for and whether a constitutional amendment would be required to lawfully terminate the practice of universal birthright citizenship. Policy preferences—mine or anyone else’s—have no legitimate bearing on these issues.

At this juncture, a brief digression is in order. Given my experience as a lawyer and a judge, I am often asked, in social settings, my opinion about various legal matters. For example, after the mass shooting in Las Vegas in October of 2017, in which sixty people were killed, an acquaintance asked me whether the tragedy would be “enough” to bring about effective gun control legislation. In response, I said: “Well, you see, there’s this thing, it’s called the ‘Second Amendment.’ It’s in the Constitution.” Acquaintances often voice their opinion to me that we need to “get rid of” the Electoral College. I invariably shake my head and respond: “Well, you see, there’s this thing, it’s called the Constitution.” The point being, a popular desire to accomplish a particular policy goal does not override the provisions of our Constitution; nor does a compelling need to accomplish a specific policy goal, such as quelling the scourge of illegal immigration, affect the meaning of the words used in the Constitution. In the United States, there are certain policy goals that can only be lawfully accomplished by amending our Constitution. Based on the analysis set forth below, it is my opinion that ending the practice of “universal birthright citizenship” is such a policy goal.

In any event, many of the Supreme Court decisions that will be cited in this paper are comprised of voluminous pages of nineteenth century legal prose. Merely reading these decisions in their entirety is a toilsome proposition for anyone, including many lawyers and judges. It is not the sort of material that lends itself to coherent exposition within the confines of a 1,000-word news article or a YouTube clip. As such, both the length and wordiness of this paper are unavoidable if my analysis is to be sufficiently comprehensive to properly inform the reader. Those who cannot be bothered with such things are free to rely on the conclusory assertions of their preferred commentator.

The factual scenario underlying the Wong Kim Ark case is that Wong Kim Ark was born in San Francisco to Chinese immigrants who, though permanent residents domiciled in the United States, remained Chinese subjects and were not U.S. citizens. As an adult, he traveled to China on two occasions. When he returned to the United States following his first trip, he was admitted through customs as a U.S. citizen. However, when he returned from his second trip to China, he was denied reentry to the United States after customs officials concluded that, because his parents were not U.S. citizens when he was born here, he was not a U.S. citizen. Ultimately, his case found its way to the United States Supreme Court, which ruled, based on the Citizenship Clause of the Fourteenth Amendment, that Wong Kim Ark was entitled to U.S. citizenship.

The majority opinion in Wong Kim Ark opens with a recitation of the facts of the case, which describes his parents’ status at the time of Wong Kim Ark’s birth as follows:

His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco. (Emphasis supplied.)[iii]

After setting forth the underlying facts, the opinion articulates the legal question presented by the case.

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, 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, by virtue of the first clause of the Fourteenth Amendment of the Constitution, “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.” (Emphasis supplied.)[iv]

It is important to note that, thus far, the opinion makes no reference to whether Wong Kim Ark’s parents’ presence in the United States was “legal” or “illegal.” Rather, the court uses terms such as “permanent,” “residents” or “residence,” and “domicil” or “domiciled.” The words “legal” and “illegal” (as well as “lawful” and “unlawful”) are never used by the court in relation to Wong Kim Ark’s parents’ presence in the United States.

The balance of the Wong Kim Ark opinion is structured into seven sections headed with Roman numerals. The balance of this paper will be structured consistently therewith.

I

Section I of the Wong Kim Ark opinion addresses the law of construction to be applied in interpreting the words of the Constitution.

In construing any act of legislation, whether a statute enacted by the legislature, or a constitution established by the people as the supreme law of the land, regard is to be had, not only to all parts of the act itself, and of any former act of the same law-making power, of which the act in question is an amendment; but also to the condition, and to the history, of the law as previously existing, and in the light of which the new act must be read and interpreted. (Emphasis supplied.)[v]

The Wong Kim Ark court then sets forth the language of Section 1 of the Fourteenth Amendment (“all parts of the act itself”):

The Fourteenth Article of Amendment, besides declaring that “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,” also declares that “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.” (Emphasis supplied.)[vi]

This recitation is significant insofar as the court is pointing out that, beyond the Citizenship Clause in the first sentence Section 1 of the Fourteenth Amendment, the Equal Protection Clause in the second and final sentence therein also utilizes the term “jurisdiction.” The presence of the word “jurisdiction” in both the first and the final clauses of Section 1 of the Fourteenth Amendment will prove vital to the court’s eventual interpretation as to the meaning and breadth of the word “jurisdiction” as it is used in the Citizenship Clause of the Fourteenth Amendment.

In the meantime, the court continues to outline the parameters of its inquiry.

The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. [Citations omitted.] The language of the Constitution, as has been well said, could not be understood without reference to the common law. (Emphasis supplied.)[vii]

Thus, the court identifies the common law (“the condition, and…the history, of the law as previously existing”) as the initial inquiry relative to interpreting the meaning of the words used in the Constitution.

The court continued by defining what constitutes “the common law” for purposes of their task.

“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes.” “There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” (Emphasis supplied.)[viii]

Here, the Wong Kim Ark opinion is basically declaring that provisions of the U.S. Constitution must be interpreted “in the light of” the history of the English common law. By this language, the Wong Kim Ark opinion does not equate the United States Constitution or the Fourteenth Amendment with English common law, nor does it indicate that English common law controls the meaning of the Constitution. Rather, the court is indicating that the words employed in the Constitution, the provisions of which were “framed in the language of the English common law,” must necessarily be interpreted with an eye towards how the same words were used in the English common law. In other words, in Wong Kim Ark, the Supreme Court was declaring, in essence, that the words used in the Fourteenth Amendment should be interpreted to mean the same thing that the same words meant as they were used in the English common law. Thus, by examining how words such as “subject to the jurisdiction thereof” were used in the English common law, the Supreme Court is seeking to glean the meaning of the words employed by the American framers of the Fourteenth Amendment.

This method of interpretation that the Wong Kim Ark court used is incredibly similar to that used by Justice Antonin Scalia in 2004 in section II A of his majority opinion in Crawford v. Washington.[ix] Therein, Justice Scalia examined the language of the English common law relative to the Confrontation Clause of the Sixth Amendment, not because English law was authoritative on the subject, but for the purpose of helping to properly interpret the meaning of the words selected by the American framers of the Sixth Amendment.

II

Section II of the Wong Kim Ark opinion discusses the English common law underlying the issue of citizenship by birth. It is crucial to bear in mind that the reason the Supreme Court specifically looked at the issue of citizenship by birth (sometimes referred to as jus soli) is because the operant language of the Citizenship Clause of the Fourteenth Amendment—“All persons born…in the United States”—provides for citizenship by birth. If the language of the Fourteenth Amendment provided for citizenship by descent, i.e. according to the citizenship of one’s parents (sometimes referred to as jus sanguinis), the Supreme Court doubtlessly would have looked elsewhere. In any event, the first five sentences of the first paragraph of Section II of the Wong Kim Ark opinion read as follows:

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," " faith" or "power," of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects.[x]

At least two aspects of the above-quoted language have been brandished by those who advocate in favor of the President’s authority to issue his EO.

First, some have argued that the dual requirement of allegiance (by the subject) and protection (by the King) mandated that alien parents of a child born within the Kingdom of England must be present therein with the “consent” of the King. They argue that persons who come into the United States illegally and give birth to a child are not here with the “consent” of the government and, therefore, do not owe the requisite allegiance to, and are not owed the protection of, the United States. The Latin maxim in the above-quoted language translates as: “Protection draws allegiance, and allegiance draws protection.”[xi] These words necessarily indicate reciprocity between a subject’s fealty to the King and the King’s protection of the subject. Indeed, the court explicitly states such allegiance and protection were “mutual.” In other words, the fact of a child’s birth within the kingdom gave rise to both the child’s allegiance to the King and the King’s obligation to protect the child. Neither party to the scenario were required to “submit” or “consent” to their respective status.

Second, some argue that use of the words “aliens in amity” necessarily means that the unwelcome or unwanted presence of an alien parent within the King’s realm would not be “in amity” and would therefore work to exclude the child of such a parent from the parameters of “citizenship by birth” as articulated in the above-quoted language. This argument reflects a profound misunderstanding of the meaning of the word “amity” as used in the English common law or, for that matter, in the United States prior to the adoption of the Fourteenth Amendment. One need only look to the Treaty of Amity and Commerce Between the United States and France in 1778,[xii] which established formal diplomatic and commercial relations between France and the United States, the Treaty of Peace and Amity in 1805,[xiii] which resolved hostilities between Tripoli and the United States, and the Treaty of Ghent of 1814,[xiv] also known as the Treaty of Peace and Amity between His Britannic Majesty and the United States of America, which resolved the War of 1812 between Great Britain and the United States. The significance of the term “amity” in international law in the eighteenth and nineteenth centuries was that of peaceful and friendly relations between nations. In 2004, in his dissent in Hamdi v. Rumsfeld, Justice Scalia cited language from Sir Michael Foster’s 1792 Discourse on High Treason, which refers to “the subject of a foreign prince in amity with us” in specific counterpoint to “states in actual hostility with us.”[xv] As used in the English common law, an alien “in amity” meant an alien from a country with which England was not at war.

The sixth and final sentence of the first paragraph of Section II reads as follows:

But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King. (Emphasis supplied.)[xvi]

This language identifies two types of persons who, even though born on English soil, were not considered to be “within the jurisdiction” of the King: 1) the children of foreign ambassadors; and 2) the children of alien enemies, born during and within their hostile occupation of part of the King's dominions. Also, note the explicit reference to the fact that these two types of persons were not “within the jurisdiction” of the King. Everyone else born within the realm was within the King’s jurisdiction.

The Wong Kim Ark opinion goes on to discuss two sources of law that articulate the law of citizenship by birth and its exceptions, the first from Lord Chief Justice Cockburn’s 1869 treatise on Nationality, and the second from Mr. Dicey’s Digest of the Law of England, published in 1896. Both sources declare that any person who is born within the British dominions, the nationality of their parents notwithstanding, is a natural-born subject of the Crown, subject only to the two exceptions set forth above.[xvii]

The court concludes Section II of its opinion as follows:

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. (Emphasis supplied.)[xviii]

This summation establishes that aliens present in England were “within the jurisdiction” of the Crown and that children born of them while so residing were natural-born subjects of the Crown, subject only to the two exceptions set forth in the above-quoted language.

III

Section III of the Wong Kim Ark opinion addresses the development of the law in the United States after the founding as it related to citizenship by birth. Coincidentally, in section II B of the majority opinion in Crawford v. Washington, Justice Scalia follows his discussion of the English common law with an examination of the history of Sixth Amendment law in the American Colonies and the United States. Thus, the manner with which the Supreme Court approached the task of constitutional interpretation in the Wong Kim Ark case was still being utilized by the quintessential conservative jurist of the late twentieth and early twenty-first centuries.

In any event, the opening sentence of Section III, referencing the English common law rule set forth above, reads as follows:

The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.[xix]

In other words, the rules of citizenship by birth in the United States remained, to a point, consistent with those under the English common law even after the U.S. Constitution was adopted. This is consistent with the fact that American courts during the nineteenth century relied upon the English common law as the starting point for the continuing development of American common law.

Regarding what American courts had had to say about the issue of citizenship by birth, the Wong Kim Ark opinion cites, with approval, a number of prior court decisions, one of which was United States v. Rhodes,[xx] a case that was decided shortly after the enactment of the Civil Rights Act of 1866 and more or less contemporaneously with the formulation of the Fourteenth Amendment, which was passed by Congress in 1866 and ratified by the states in 1868.

“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.” “We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.” (Emphasis supplied.)[xxi]

The above-quoted language unequivocally indicates that “birth and allegiance go together.” All persons born in England are “in the allegiance” of the King, and all persons born in the United States are “in the allegiance” of the United States. It is important to note that the above language does not, as a textual matter, equate these respective “allegiances” with each other, it only provides that they both arise by way of birth within the respective territories. For example, the English common law rule of “perpetual” allegiance following birth in England could not adhere to children born in the United States because U.S. law, to which children born in the United States owed allegiance, recognized a general right of repatriation, as noted by the dissenting opinion in Wong Kim Ark, going as far back as the naturalization law of 1795 and the Declaration of Independence itself.[xxii]

The Wong Kim Ark opinion goes on to cite, with approval, language from an earlier decision, the 1805 decision in Gardner v. Ward.[xxiii]

The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions, “that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land; and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term ‘citizenship.’” [Citation omitted.] And again: “The doctrine of the common law is, that every man born within its jurisdiction is a subject of the sovereign of the country where he is born; and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance was born.” (Emphasis supplied.)[xxiv]

The emphasized language in the above-quoted passage, which makes no explicit reference to the law of England, common or otherwise, unequivocally indicates that the “circumstance” of a child’s birth within the United States—the fact that the child was born here—in and of itself, as a matter of law, subjects that child to a “duty of allegiance” to the United States, “reciprocally” entitles that child to the “protection” of the United States, and entitles that child to all “other rights and advantages which are included in the term ‘citizenship.’” Thus, merely by being born in the United States, a child automatically bore the duty of “allegiance” thereto and was entitled to the “protection” thereof.

Some have argued that the Wong Kim Ark decision wrongly “assumes” that English common-law jus soli continued to exist, as it existed under English feudalism, in the United States after the American Revolution. The Wong Kim Ark opinion does no such thing. The Wong Kim Ark opinion cited prior case precedents, each of which had been decided by American courts after the Revolution, and adopted their holdings that the law of the United States provided that children born in the United States were born owing a “duty of allegiance” thereto, and were “reciprocally” entitled to the “protection” thereof. Again, the Wong Kim Ark opinion does not equate the respective “allegiances” generated when children are born in England or the United States with each other, it only provides that both “allegiances” arise by way of birth within the respective territories.

This distinction between “allegiances” is alluded to in a decision of the Supreme Court of North Carolina that the Wong Kim Ark opinion cites with approval:

The Supreme Court of North Carolina, speaking by Mr. Justice Gaston, said: “Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens.” “Upon the Revolution, no other change took place in the law of North Carolina, than was consequent upon the transition from a colony dependent on an European King to a free and sovereign State;” “British subjects in North Carolina became North Carolina freemen;” “and all free persons born within the State are born citizens of the State.” “The term ‘citizen,’ as understood in our law, is precisely analogous to the term ‘subject’ in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people; and he who before was a ‘subject of the king’ is now ‘a citizen of the State.’” State v. Manuel, (1838) 4 Dev. & Bat. 20, 24-26. (Emphasis supplied.)[xxv]

The “change of government” referenced in the emphasized language in the above-quoted passage, which flowed from the Declaration of Independence, the Revolution, and the subsequent adoption of the United States Constitution, resulted in a change in the nature of the relationship between the inhabitants of America and their government. Though both arise from the fact of birth, the “allegiance” an English subject owed the King before the Revolution, and the “allegiance” an American citizen owed the United States after the Revolution, are separate and distinct from each other.

Regardless of what the law of citizenship had been in the United States prior to the Civil Rights Act of 1866 and the Fourteenth Amendment, be it by birth or descent or otherwise, it was the language of the Civil Rights Act and the Fourteenth Amendment themselves that focused the analysis on citizenship by birth, because, as will be shown below, that is what both instruments provided for.

IV

Section IV of the opinion addresses an argument that the development of international law supports a finding that citizenship should be primarily based on the nationality of the parents (jus sanguinis) rather than place of birth (jus soli). Following a lengthy discussion of the law relating to children born outside the dominions of a nation to parents who were citizens of the same nation, the Wong Kim Ark court rejected that argument.[xxvi] Arguably, this discussion was unnecessary, because, regardless of what international law—or any other law beyond that of the United States—provided for, it was the American framers of the Fourteenth Amendment who chose to employ language tying citizenship to a child’s birth within the United States (jus soli) and not to the nationality or citizenship of the child’s parent (jus sanguinis).

V

Section V of the Wong Kim Ark opinion directly addresses the meaning of the words “and subject to the jurisdiction thereof.” This section of the opinion comprises nineteen and a half pages of text. Those seeking to fully understand what the Supreme Court had to say about the meaning of these words are invited to read Section V in its entirety. I will present a summary of the court’s analysis and its ultimate determination.

The opening sentence of section V reads:

In the fore front, both of the Fourteenth Amendment of the Constitution, and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms. (Emphasis supplied.)[xxvii]

After acknowledging the “fundamental principle of citizenship by birth,” the Wong Kim Ark court addresses the Civil Rights Act of 1866, noting the language it employed relative to citizenship.

[A]ll persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.[xxviii]

As stated above, the Civil Rights Act of 1866 expressly provided for citizenship by birth—it did not say “all persons born to citizens of the United States,” it said “all persons born in the United States.” The Civil Rights Act and its American framers chose to utilize the language of jus soli and not the language of jus sanguinis. Again, the reason that the Supreme Court in Wong Kim Ark addressed the English common law relative to citizenship by birth is because the American framers of both the Civil Rights Act of 1866 and the Fourteenth Amendment utilized the language of citizenship by birth. The Wong Kim Ark opinion did not hold that the English common law relative to citizenship by birth dictated what American law was. Rather, it looked to the relevant English common law in furtherance of interpreting the words the American framers chose to use in the Fourteenth Amendment.

In any event, the court goes on.

The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution.[xxix]

The upshot of this statement is that the Fourteenth Amendment, until and unless it is repealed or amended, is the final word on citizenship under U.S. law. The court goes on.

The first section of the Fourteenth Amendment of the Constitution begins with the words, “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.” As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect.[xxx]

This language clearly indicates that the court looked at the language of the Fourteenth Amendment not as “restrictive” or “preventative,” but as “enabling” and “extending” in effect. In other words, it was to be read expansively, not narrowly. This language also indicates that anyone who would have been considered a lawful citizen by way of their birth in the United States before the adoption of the Fourteenth Amendment would also be a lawful citizen by way of their birth in the United States after the adoption of the Fourteenth Amendment.

It is very important to keep in mind, at this juncture, that the words that were ultimately adopted into the Citizenship Clause of the Fourteenth Amendment are substantially different from those used in the above-quoted clause in the Civil Rights Act of 1866.

Some who argue that the Wong Kim Ark case is being “misread” by advocates for universal birthright citizenship, or that Wong Kim Ark was just plain wrongly decided, point to language in an 1873 decision of the Supreme Court known as The Slaughterhouse Cases. Referring to that decision, the Wong Kim Ark opinion notes language therefrom:

Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark: “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.”[xxxi]

Obviously, if the law at the time of the Wong Kim Ark decision was that children of citizens or subjects of foreign states born within the United States were excluded from the operation of the Citizenship Clause of the Fourteenth Amendment, then the Wong Kim Ark decision was wrongly decided. However, the Wong Kim Ark opinion goes on to address whether Justice Miller’s statement from The Slaughterhouse Cases constituted binding precedent on the issue.

This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness, as if the case before the court had called for an exact definition of the phrase, is apparent from its classing foreign ministers and consuls together—whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as entrusted with authority to represent their sovereign in his intercourse with foreign States or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside. [Citations omitted.]

In weighing a remark uttered under such circumstances, it is well to bear in mind the often quoted words of Chief Justice Marshall: “It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”[xxxii]

This was a long-winded way of saying that Justice Miller’s statement in The Slaughterhouse Cases constitutes obiter dictum, i.e. a judge’s incidental expression of opinion that is not directly connected to the decision at hand and therefore does not establish precedent. The Supreme Court in Wong Kim Ark affirmatively concluded that Justice Miller’s statement in The Slaughterhouse Cases, quoted above, did not constitute authoritative law on the question.

The Wong Kim Ark opinion goes on to point out that the only actual adjudication by the Supreme Court relative to the meaning of the words “and subject to the jurisdiction thereof” in the Citizenship Clause of the Fourteenth Amendment is the 1884 decision in Elk v. Wilkins.[xxxiii] In the Elk case, it was decided that an Indian tribal member born within the United States was not “subject to the jurisdiction thereof” within the meaning of the Citizenship Clause of the Fourteenth Amendment.

The Wong Kim Ark opinion describes the basis of the holding in Elk as follows:

That decision was placed upon the grounds, that the meaning of those words was, “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;” that by the Constitution, as originally established, “Indians not taxed” were excluded from the persons according to whose numbers representatives in Congress and direct taxes were apportioned among the several States, and Congress was empowered to regulate commerce, not only “with foreign nations,” and among the several States, but “with the Indian tribes;” that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes, and were not part of the people of the United States; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will, without the action or assent of the United States; and that they were never deemed citizens, except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress; and, therefore, that “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.” (Emphasis supplied.)[xxxiv]

Many who argue that the Wong Kim Ark decision interprets the meaning of the words “and subject to the jurisdiction thereof” too broadly tee-off on the emphasized portion of the above-quoted language and claim that the type of jurisdiction referenced in the Citizenship Clause of the Fourteenth Amendment is a “complete” jurisdiction—an “exclusive” or “undivided” jurisdiction—that is somehow distinguishable from whatever other kind of “jurisdiction” they believe the United States has over persons within its territory to whom its laws apply.

This argument, though ostensibly supported by actual language in the Elk opinion, ignores two things. First, it ignores the fact that the framers of the Fourteenth Amendment could have very easily employed words such as “complete jurisdiction” or “exclusive jurisdiction” or “undivided jurisdiction” or any other words to indicate that their use of the word “jurisdiction” was intended to mean something other than its ordinary legal meaning. For whatever reason, they chose not to do so.

This is a crucial point, because supporters of the President’s authority to issue his Executive Order invariably distinguish between “partial, territorial jurisdiction” and “complete, allegiance-owing jurisdiction” in furtherance of their argument that the Citizenship Clause was not intended to apply to persons born in the United States who are “subject to a foreign power.” The framers of the Fourteenth Amendment, however, included no such distinction in the words of the first section of the amendment when they selected the unqualified term “jurisdiction” for implementation therein. In 2012, Justice Scalia (with lexicographer Bryan A. Garner) compiled a set of fifty-seven principles, presumptions and canons relative to statutory and constitutional text construction. [xxxv] (For ease of reference, I will hereafter refer to these as: “Justice Scalia’s canons.”) One of Justice Scalia’s canons was titled the “General-Terms Canon.” This canon provides that “[g]eneral terms are to be given their general meaning.”[xxxvi] Were Justice Scalia still with us, he might point out that, in order to interpret the term “jurisdiction” in the Citizenship Clause as encompassing only “complete, allegiance-owing jurisdiction” and not the “partial, territorial jurisdiction” that is applied relative to the Equal Protection Clause, one would need to add words to the Constitution. As Justice Scalia once stated, the Constitution is “a legal document, and it says what it says and doesn’t say what it doesn’t say.”[xxxvii] As will be discussed further below, the term “jurisdiction” needs no qualifier in order to be “complete.” If anything, the Elk decision recognized the incomplete jurisdiction of the United States government over Indian tribal members in 1884.

Second, those who point to language in Elk in support of the “complete” jurisdiction argument ignore the unique and peculiar relationship between the United States government and the Indian tribes as they existed in the nineteenth century. Chief Justice John Marshall declared in the Supreme Court’s 1831 decision in Cherokee Nation v. Georgia,[xxxviii] that

[t]he condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence. In the general, nations not owing a common allegiance are foreign to each other. The term foreign nation is, with strict propriety, applicable by either to the other. But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else.[xxxix]

The Wong Kim Ark opinion points out, among other things, that the original Constitution excluded “Indians not taxed” from the process for apportioning representatives in Congress and direct taxes among the several States. In addition, the Wong Kim Ark opinion notes that the original Constitution’s Commerce Clause empowered Congress to regulate commerce not only “with foreign nations,” but also “with the Indian tribes.” Finally, the court noted that the Indian tribes were “alien nations” and “distinct political communities” whose members owed immediate allegiance to their respective tribes. In the late nineteenth century, when Elk and Wong Kim Ark were decided, Indian tribes, though existing within the United States, possessed a form of sovereignty (some of which continues to the present day) that distinguished them not only from American citizens, but from any other person physically present within the United States to whom the laws of the United States applied.

Though the Wong Kim Ark opinion does not note it specifically, the Elk opinion itself includes the following language:

Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed by any State. General acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them. (Emphasis supplied.)[xl]

Indians were “exempt from” taxation. General acts of Congress “did not apply” to them. The above-quoted language clearly indicates that one of the basic concepts underlying the Supreme Court’s determination in Elk that Indians were not “subject to the jurisdiction” of the United States in 1884 was because many of the laws of the United States simply did not apply to them and could not be applied against them. As I opined at the outset of this paper, if the laws of the United States can be applied to or against a person, then they are “subject to the jurisdiction thereof,” if it cannot be so applied, then they are not.

Furthermore, the Elk opinion takes note of actual text in the Fourteenth Amendment that distinguishes members of Indian tribes in the United States from others born therein.

This view is confirmed by the second section of the Fourteenth Amendment, which provides that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of the corresponding clause of the original Constitution as counted only three-fifths of such persons. But Indians not taxed are still excluded from the count, for the reason that they are not citizens. Their absolute exclusion from the basis of representation, in which all other persons are now included, is wholly inconsistent with their being considered citizens. (Emphasis supplied.)[xli]

The above-quoted language clarifies the unavoidable conclusion that, unlike that of African Americans, the legal status of the members of Indian tribes in the United States relative to citizenship was not affected by the adoption of the Fourteenth Amendment.

The Wong Kim Ark opinion concludes its discussion of Elk v. Wilkins with the following statement:

The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent, not in the diplomatic service of a foreign country. (Emphasis supplied.)[xlii]

This language clearly articulates the Supreme Court’s determination that the holding in the Elk v. Wilkins decision was limited in its applicability to members of the various Indian tribes in the United States and had no bearing on the citizenship of children born in the United States to foreign parents of other races and nationalities.

Immediately following its discussion of Elk v. Wilkins, Section V of the Wong Kim Ark opinion explicitly addresses the meaning of the words “and subject to the jurisdiction thereof.” The following statement is one of the more important components of the Supreme Court’s ruling.

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States,” by the addition, “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law,) the two classes of cases—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State—both of which, as has already been shown, by the law of England, and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.[xliii]

The only reasonable interpretation of the above-quoted language is that all children born in the United States were “subject to the jurisdiction thereof” except:

1) children of members of the Indian tribes;

2) children born of alien enemies in hostile occupation; and

3) children of diplomatic representatives of a foreign State.

This is entirely consistent with the court’s finding, set forth earlier in the Wong Kim Ark opinion and discussed above herein, that the language of the Citizenship Clause of the Fourteenth Amendment is not “restrictive” or “preventative,” but “enabling” and “extending” in effect.

Having already discussed the exclusion of Indians from the applicability of the Citizenship Clause relative to citizenship by birth, the Wong Kim Ark opinion immediately proceeds to address the other two exclusions. Relative to children born of alien enemies in hostile occupation, the court stated the following:

In United States v. Rice, (1819) 4 Wheat. 246, goods imported into Castine, in the State of Maine, while it was in the exclusive possession of the British authorities during the last war with England, were held not to be subject to duties under the revenue laws of the United States, because, as was said by Mr. Justice Story in delivering judgment: “By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.” (Emphasis supplied.)[xliv]

The emphasized language in the above-quoted passage clearly indicates that the laws of the United States did not apply to persons inhabiting territory subject to military conquest and occupation by the British. As such, the laws of the United States did not apply to the children born to such inhabitants within the occupied territory. Thus, the underlying logic of the court’s exclusion of children born under such circumstances from the applicability of the Citizenship Clause of the Fourteenth Amendment is entirely consistent with the proposition that, if the laws of the United States can be applied to or against a person, they are “subject to the jurisdiction thereof” and if it cannot be so applied, they are not.

The Wong Kim Ark opinion goes on to address the grounds upon which foreign ministers are exempt from the jurisdiction of the United States. The opinion sets forth a thorough discussion of the “great case” of The Schooner Exchange v. McFaddon & others.[xlv] That 1812 decision of the Supreme Court, referred to in the Wong Kim Ark opinion as The Exchange, addressed the matter of jurisdiction generally, and its applicability to foreign ministers specifically.

Relative to jurisdiction in general, the Wong Kim Ark opinion notes that the opinion in The Exchange case does not address whether members of Indian tribes or alien enemies in hostile occupation are subject to the jurisdiction of the United States. Nevertheless, the Wong Kim Ark opinion declares that:

In all other respects it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof.” [xlvi]

The Wong Kim Ark opinion quotes Chief Justice John Marshall from The Exchange as follows:

The Chief Justice first laid down the general principle: “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.”[xlvii]

The emphasized language in the above-quoted passage makes two points. First, that the “jurisdiction” of the United States “within its own territories” is “absolute” and constitutes “full and complete power” thereover. Second, that any “limitation” or “exception” to this “absolute jurisdiction” must be either “imposed by” or with the “consent of” the nation itself.

Relative to the first point, the emphasized language in the above-quoted passage establishes that the “jurisdiction” of the United States is “absolute” and stands for the “full and complete power” of the government over United States territory. The term “jurisdiction,” standing alone, needs no qualifier to be “complete.” Jurisdiction is always “complete,” unless expressly limited. This precedent from 1812 is entirely consistent with, and supports, my assertion that the Elk decision recognized the incomplete jurisdiction of the United States over Indian tribal members, because “complete jurisdiction” is what the United States possessed over every other person within the territory of the United States, except those who were lawfully exempted from the application of United States law. As previously discussed, the only persons so exempted were foreign ministers and inhabitants of U.S. territory occupied by hostile foreign armies.

Relative to the second point, the only actual language in the Fourteenth Amendment that, either expressly or by implication, “limits” the absolute jurisdiction of the United States over all persons within its territory, or “excepts” certain persons present within its territory from such jurisdiction, is the reference to “excluding Indians not taxed” in Section 2 therein. Thus, there is actual text in the Fourteenth Amendment that bestows the unique status of Indian tribal members in the United States that underlies the Elk and Wong Kim Ark opinions’ recognition thereof. There is no other language anywhere in the Fourteenth Amendment that qualifies or limits the “absolute” jurisdiction of the United States over its territory or any persons within it.

Regarding the “immunity” that foreign ministers have relative to the jurisdiction of the United States over them within its own territory, the Wong Kim Ark opinion quotes from The Exchange case as follows:

“Whatever may be the principle on which this immunity is established, whether we consider him as in the place of the sovereign he represents; or by a political fiction suppose him to be extra-territorial, and therefore, in point of law, not within the jurisdiction of the sovereign at whose court he resides; still the immunity itself is granted by the governing power of the nation to which the minister is deputed. This fiction of exterritoriality could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it.”[xlviii]

In addition to the “fiction of exterritoriality” identified by Chief Justice Marshall, there is another explanation for why foreign ministers enjoyed immunity from the jurisdiction of the United States: Congress had passed a law. The Crimes Act of 1790 provided, in Section 25, that:

[I]f any writ or process shall at any time hereafter be sued forth or prosecuted by any person or persons, in any of the courts of the United States, or in any of the courts of a particular state, or by any judge or justice therein respectively, whereby the person of any ambassador or other public minister of any foreign prince or state, authorized and received as such by the President of the United States, or any domestic or domestic servant of any much ambassador or other public minister, may be arrested or imprisoned, or his or their goods or chattels be distrained, seized or attached, such writ or process shall be deemed and adjudged to be utterly null and void to all intents, construction and purposes whatsoever.[xlix]

Therefore, in addition to the provisions of the common law going back three-hundred years, Congress enacted a statute in 1790 providing that the laws of the United States could not be applied to ambassadors or other public ministers of foreign states while they were within United States territory, so long as they were “authorized and received as such by the President of the United States.” This 1790 law remained in force until 1978, when the present Diplomatic Relations Act (22 U.S.C. 254) was enacted to replace it.

In any event, the specific legal issue in The Exchange case was whether an American citizen could assert, in an American court, title to an armed foreign vessel located in United States waters. Based on recognized exceptions to the “absolute jurisdiction” of the United States, i.e. the immunity of foreign ministers and the presence of foreign troops within a nation’s territory, the Supreme Court held in The Exchange case “that national ships of war, entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction.”[l]

The Wong Kim Ark opinion wraps up its discussion of The Exchange case in terms of its significance relative to the meaning of the term “jurisdiction” in the following three passages, which contain perhaps the most import language in the entire case as it relates to the meaning of the words “and subject to the jurisdiction thereof”:

The reasons for not allowing to other aliens exemption “from the jurisdiction of the country in which they are found” were stated as follows: “When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exemption.” (Emphasis supplied.)[li]

From the first organization of the National Government under the Constitution, the naturalization acts of the United States, in providing for the admission of aliens to citizenship by judicial proceedings, uniformly required every applicant to have resided for a certain time “within the limits and under the jurisdiction of the United States;” and thus applied the words “under the jurisdiction of the United States” to aliens residing here before they had taken an oath to support the Constitution of the United States, or had renounced allegiance to a foreign government.[lii]

The words “in the United States, and subject to the jurisdiction thereof,” in the first sentence of the Fourteenth Amendment of the Constitution, must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange; and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words, “out of the limits and jurisdiction of the United States,” as habitually used in the naturalization acts. This presumption is confirmed by the use of the word “jurisdiction” in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” It is impossible to construe the words “subject to the jurisdiction thereof,” in the opening sentence, as less comprehensive than the words “within its jurisdiction,” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.” (Emphasis supplied.)[liii]

The emphasized language in the third passage quoted above articulates the Supreme Court’s conclusion—in terms of what “and subject to the jurisdiction thereof” means—that any person “within the jurisdiction” of a state for purposes of the Fourteenth Amendment’s Equal Protection Clause is also “subject to the jurisdiction of the United States” for purposes of the Fourteenth Amendment’s Citizenship Clause. In other words, the Wong Kim Ark opinion holds that the words “subject to the jurisdiction thereof” in the Citizenship Clause of the Fourteenth Amendment and the words “within its jurisdiction” in the Equal Protection Clause of the Fourteenth Amendment are coequal in their application. In my opinion, this proposition is the single most important factor in determining what the Supreme Court actually ruled in Wong Kim Ark relative to the meaning of the words “and subject to the jurisdiction thereof” in the Citizenship Clause of the Fourteenth Amendment.

Some who object to interpreting the Wong Kim Ark decision as establishing a constitutional right to universal birthright citizenship blithely assert that the Citizenship Clause of the Fourteenth Amendment was merely intended to “constitutionalize” the pertinent language of the Civil Rights Act of 1866, which provided that “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,” were declared to be citizens of the United States. In order to sustain such an assertion, however, one must ignore two things: first, the fact that the words in the Civil Rights Act of 1866 and the words in the Citizenship Clause of the Fourteenth Amendment are different; and, second, they must ignore what the Wong Kim Ark opinion actually says about that difference, which is as follows:

By the Civil Rights Act of 1866, “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,” were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, “not subject to any foreign power,” were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright; or, for instance, for the first time in our history, to deny the right of citizenship to native-born children of foreign white parents not in the diplomatic service of their own country, nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the Civil Rights Act, “not subject to any foreign power,” gave way, in the Fourteenth Amendment of the Constitution, to the affirmative words, “subject to the jurisdiction of the United States.” (Emphasis supplied.)[liv]

The Supreme Court in Wong Kim Ark did not hold that the Fourteenth Amendment was intended to “constitutionalize” the Civil Rights Act of 1866 because, as the opinion notes, the “negative words” of the Act “gave way” to the “affirmative words” adopted into the Fourteenth Amendment. The Wong Kim Ark opinion efficiently points out that the words used in the Civil Rights Act and the Fourteenth Amendment are DIFFERENT. In other words, the Wong Kim Ark opinion explicitly holds that the Civil Rights Act and the Fourteenth Amendment must be interpreted to mean different things because the different words used in each have different meanings. This is entirely consistent with Justice Scalia’s canon titled “Presumption of Consistent Usage,” the second clause of which states that “a material variation in terms suggests a variation in meaning.”[lv]

Section V of the Wong Kim Ark opinion continues with a discussion of various commentaries on the law of citizenship by birth, including that relating to children born outside the United States to U.S. citizen parents, before shifting to its conclusion regarding its interpretation of the Citizenship Clause of the Fourteenth Amendment. What constitutes the ultimate holding in the Wong Kim Ark decision is summarized near the end of Section V of the opinion. It reads, in pertinent part, as follows:

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. (Emphasis supplied.)[lvi]

The above language indicates that all children born in the United States, including those born to resident aliens, are entitled to citizenship by the fact of their birth within the United States, with four enumerated exceptions: 1) children of foreign sovereigns or their ministers; 2) children born on foreign public ships (pursuant to the holding in The Exchange case); 3) children born of enemies within and during a hostile occupation of part of the United States; and, with the single additional exception of 4) children of members of the Indian tribes owing direct allegiance to their several tribes. The court’s decision to use the language “with the single additional exception of” clearly indicates that the four enumerated exceptions are the only exceptions to “the ancient and fundamental rule of citizenship by birth within the territory” (i.e. universal birthright citizenship) that the Supreme Court was recognizing. Also note that the one common thread among all four of the exceptions recognized in the Wong Kim Ark opinion is that the laws of the United States, in one form or another, cannot be applied to or against such persons.

Recall that the Wong Kim Ark opinion makes no reference to whether Wong Kim Ark’s parents’ presence in the United States was “legal” or “illegal.” Rather, the court uses terms such as “permanent,” “residents” or “residence,” and “domicil” or “domiciled.” Opponents of universal birthright citizenship argue that the use of these terms by the Supreme Court indicates a requirement that non-citizen parents must be “permanent residents of” or “permanently domiciled in” the United States before children born to them are “subject to the jurisdiction thereof” under the Wong Kim Ark decision. Such an argument reasonably supposes that, in order to be a “permanent resident of” or “permanently domiciled in” the United States, something more than mere physical presence within its territory is required. Regardless, this argument is belied by additional language set forth in the Wong Kim Ark opinion in the same paragraph as the passage quoted above.

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 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. (Emphasis supplied.)[lvii]

The above-quoted language straightforwardly declares that an alien is “completely” subject to the “political jurisdiction” of the country in which he resides “independently” of whether he intends “to continue such residence” or “of any domiciliation” and “for so long a time as he continues within the dominions” of the United States. This language clearly indicates that mere presence within the United States is sufficient to render non-citizens and any children born to them in the United States “subject to the jurisdiction thereof.”

This is all entirely consistent with the basic meaning of the word “jurisdiction.” As defined in an 1865 dictionary (i.e. contemporaneously with the framing of the Fourteenth Amendment), “jurisdiction,” as applied to nations, meant the “[p]ower of governing or legislating,” “the power or right of exercising authority,” the “limit within which power may be exercised,” or “extent of power or authority.”[lviii] In other words, “jurisdiction” is the power of a nation to govern, legislate, and exercise authority within its own territory to whatever extent that nation’s laws provide.

In addition to the expansive breadth of the jurisdiction of the United States over persons within its territory that was articulated in The Exchange case, the United States Supreme Court rendered another decision prior to the adoption of the Fourteenth Amendment that recognized the broad jurisdiction of states over individuals by way of mere presence within their borders. In 1837, twenty-five years after The Exchange case and six decades before the Wong Kim Ark decision, the Supreme Court issued its decision in New York v. Miln. The case involved a New York statute prescribing certain regulatory procedures with which the master, crew and passengers aboard any foreign vessel docked in New York were required to comply. Therein, the Supreme Court weighed in on, among other things, New York’s authority—its “jurisdiction”—over such persons if they happened to come ashore.

No one will deny, that a state has a right to punish any individual found within its jurisdiction, who shall have committed an offence within its jurisdiction, against its criminal laws. We speak not here of foreign ambassadors, as to whom the doctrines of public law apply. We suppose it to be equally clear, that a state has as much right to guard, by anticipation, against the commission of an offence against its laws, as to inflict punishment upon the offender after it shall have been committed. The right to punish, or to prevent crime, does in no degree depend upon the citizenship of the party who is obnoxious to the law. The alien who shall just have set his foot upon the soil of the state, is just as subject to the operation of the law, as one who is a native citizen. (Emphasis supplied.)[lix]

The Supreme Court, apparently feeling the need to put an even finer point on it, added:

Now why is this? For no other reason than this, simply, that being within the territory and jurisdiction of New York, they were liable to the laws of that state, and amongst others, to its criminal laws. (Emphasis supplied.)[lx]

The above-quoted language from New York v. Miln unambiguously establishes two things. First, that the authority of a state to impose its law upon a person—in other words, to exercise its jurisdiction—“does in no degree depend upon the citizenship of the party.” Second, that, simply by entering upon the territory and jurisdiction of a state—even if the person “shall just have set his foot upon the soil of the state”—the person so entering is “within its jurisdiction.” In other words, to be “within” the jurisdiction (i.e. within the territory) of a state is to be “subject to” the jurisdiction (i.e. subject to the laws) of that state. The equivalence of being “within the jurisdiction” of a state and being “subject to the jurisdiction” of a state, as articulated by the Supreme Court in 1837 in New York v. Miln, is the more or less identical basis upon which the Supreme Court held in Wong Kim Ark that any person “within the jurisdiction” of a state for purposes of the Equal Protection Clause of the Fourteenth Amendment is “subject to the jurisdiction” of the United States for purposes of the Citizenship Clause of the Fourteenth Amendment.

When the Fourteenth Amendment was passed by the Congress in 1866, New York v. Miln had stood as precedent for nearly thirty years and The Exchange for more than half a century. Presumably, the lawyers, judges and statesmen involved in the drafting and adoption of the Fourteenth Amendment were aware of this longstanding judicial application of the word “jurisdiction” (i.e. the fact that being “within the jurisdiction” of a sovereign renders a person “subject to the jurisdiction thereof”) when they chose to include it twice in the language of the first section of the Fourteenth Amendment.

A decade after the adoption of the Fourteenth Amendment, and twenty years before Wong Kim Ark, in its 1878 decision in Pennoyer v. Neff, the Supreme Court referenced the principles of public law applicable to the states and declared that “[o]ne of these principles is, that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory.”[lxi] More recently, in the Supreme Court’s 1990 decision in Burnham v. Superior Court of Cal., Marin County, Justice Scalia, writing for the majority, declared that “[a]mong the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State.”[lxii] Justice Scalia follows this declaration with a historical outline that, among other things, touches upon the history of the English common law relative to a state’s “jurisdiction.” The Pennoyer and Burnham cases do not deal with the Citizenship Clause of the Fourteenth Amendment, they deal with the Due Process Clause thereof. However, they both address the breadth and meaning of the word “jurisdiction” and unequivocally endorse the proposition that all persons (and things) that are “within the jurisdiction” of a state are “subject to the jurisdiction thereof.”

Thus, multiple Supreme Court precedents, from 1812 through 1990, clearly establish that a person’s presence within the geographical territory of a government subjects that person to the jurisdiction thereof.

VI

Section VI of the Wong Kim Ark opinion begins with the following observations:

Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment, which declares and ordains that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, 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; and are “subject to the jurisdiction thereof,” in the same sense as all other aliens residing in the United States. (Emphasis supplied.)[lxiii]

Some who object to interpreting Wong Kim Ark as endorsing universal birthright citizenship for the children of illegal aliens brandish the emphasized language in the above-quoted passage, claiming that it provides that the alien parents of a child born in the United States must be “permitted by the United States to reside here” in order for their children to be “entitled to the protection of and owe allegiance to the United States” and, therefore, be “subject to the jurisdiction thereof.” Again, as discussed above, the Citizenship Clause of the Fourteenth Amendment requires that “[a]ll persons born” in the United States must be “subject to the jurisdiction thereof” in order to be a United States citizen by birth. It says nothing about the child’s parents. The sentence in which the emphasized language in the above-quoted passage appears explicitly refers to Chinese persons “born out of the United States.” The legal status of such persons is constitutionally distinct from persons who are born in the United States. The fact of the child’s birth in the United States creates the mutual relationship of “allegiance and protection” between the child and the United States. The child’s alien parents, on the other hand, are situated differently. Both grammatically and logically, the emphasized language simply does not apply to the children of such aliens who are, in fact, born in the United States.

The Wong Kim Ark opinion goes on to discuss the Supreme Court’s 1886 Decision in Yick Wo v. Hopkins,[lxiv] quoting from it as follows:

“The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says, ‘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.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”[lxv]

Here, after finding, as discussed above, that the words “subject to the jurisdiction thereof” in the Citizenship Clause of the Fourteenth Amendment and the words “within its jurisdiction” in the Equal Protection Clause of the Fourteenth Amendment are coequal in their application, the court is examining the manner in which the Equal Protection Clause has been applied to persons such as Wong Kim Ark; namely, Chinese persons.

After noting changes in statutory language subsequent to the initial enactment of the Civil Rights Act of 1866, the Wong Kim Ark opinion declared that the noted changes in statutory language were

hardly consistent with attributing any narrower meaning to the words “subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution, which may itself have been the cause of the change in the phraseology of that provision of the Civil Rights Act.[lxvi]

Immediately following this observation—which explicitly takes note of the change in language from the Civil Rights Act to the Fourteenth Amendment—the Supreme Court puts down what is, in my humble opinion, the most consequential language in the Wong Kim Ark opinion:

The decision in Yick Wo v. Hopkins, indeed, did not directly pass upon the effect of these words in the Fourteenth Amendment, but turned upon subsequent provisions of the same section. But, as already observed, it is impossible to attribute to the words, “subject to the jurisdiction thereof,” that is to say, of the United States, at the beginning, a less comprehensive meaning than to the words “within its jurisdiction,” that is, of the State, at the end of the same section; or to hold that persons, who are indisputably “within the jurisdiction” of the State, are not “subject to the jurisdiction” of the Nation.

It necessarily follows that persons born in China, subjects of the Emperor of China, but domiciled in the United States, having been adjudged, in Yick Wo v. Hopkins, to be within the jurisdiction of the State, within the meaning of the concluding sentence, must be held to be subject to the jurisdiction of the United States, within the meaning of the first sentence of this section of the Constitution; and their children, “born in the United States,” cannot be less “subject to the jurisdiction thereof.” (Emphasis supplied.)[lxvii]

Having explicitly articulated the proposition multiple times, it cannot be reasonably disputed that, relative to the meaning of the words “and subject to the jurisdiction thereof” in the Citizenship Clause of the Fourteenth Amendment, the Supreme Court in Wong Kim Ark held unequivocally that any person “within the jurisdiction” of a state for purposes of the Equal Protection Clause of the Fourteenth Amendment is “subject to the jurisdiction” of the United States for purposes of the Citizenship Clause of the Fourteenth Amendment. By explicitly citing the Yick Wo decision in its opinion, the Supreme Court in Wong Kim Ark was declaring that—with certain explicitly enumerated exceptions—all persons within the “territorial” jurisdiction of the United States (i.e. physically present within the geographical borders of the United States) were “subject to the jurisdiction of” the United States for purposes of the citizenship clause of the Fourteenth Amendment. As previously set forth above, the explicitly enumerated exceptions are: 1) children of foreign sovereigns or their ministers; 2) children born on foreign public ships; 3) children born of enemies within and during a hostile occupation of part of the United States; and 4) children born to members of Indian tribes owing direct allegiance to their tribe.

Those who object to the Wong Kim Ark opinion’s coequal application of the Citizenship and Equal Protection clauses may argue that the term “jurisdiction” means different things in each because of the different words that preface it in each; the Citizenship Clause using “subject to,” connoting “allegiance”-based jurisdiction, and the Equal Protection Clause using “within,” connoting “territorial” jurisdiction. This argument, however, disregards the longstanding judicial recognition, discussed herein above, that all persons within the territorial jurisdiction of a government are subject to the jurisdiction thereof. Furthermore, it runs afoul of the first clause of Justice Scalia’s canon titled “Presumption of Consistent Usage,” which states that “[a] word or phrase is presumed to bear the same meaning throughout a text.”[lxviii]

Section VI of the Wong Kim Ark opinion continues with a discussion of the arguments in Congress regarding the drafting of the language of the Fourteenth Amendment. The “legislative history” of the Fourteenth Amendment has received A LOT of attention from supporters of the President’s Executive Order. Here is what the Wong Kim Ark opinion ultimately had to say about “legislative history” relative to interpreting the Fourteenth Amendment:

Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment; and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves; and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered and not overlooked. (Emphasis supplied.)[lxix]

The emphasized language in the above-quoted passage is a clear declaration from the Supreme Court that legislative intent “must be sought in the words of the Amendment” and that “the debates in Congress are not admissible as evidence to control the meaning of those words.” The fact that the Wong Kim Ark opinion refers to the debates in Congress as “valuable” and “interesting” does not alter its more forceful assertion that legislative intent is not properly construed from expressions of intent that may have been made during the underlying debates, but from the words that were actually written into the Fourteenth Amendment.

This approach to constitutional interpretation articulated in the above-quoted passage is entirely consistent with the “textualist” school of Originalism, a legal ideology normally embraced by the sort of conservative lawyers who are now on the vanguard of those questioning the breadth of the Wong Kim Ark ruling by extensively asserting the “legislative history” of the Fourteenth Amendment in furtherance of their arguments. Alexander Hamilton once said that “whatever may have been the intentions of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.”[lxx] Another more modern proponent of the same doctrine, one who is supposedly revered by many of the lawyers who are now deeply immersing themselves in the legislative history of the Fourteenth Amendment in furtherance of their assertions that the Wong Kim Ark decision only applies to children born to aliens who are “legally” and “permanently” residing in the United States, is none other than Justice Scalia. One of Justice Scalia’s canons is titled the “Supremacy-of-Text Principle,” which provides that “[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.”[lxxi] In 2012, Justice Scalia and Bryan Garner also compiled a list of “Thirteen Falsities” that they sought to expose, one of which was “[t]he false notion that committee reports and floor speeches are worthwhile aids in statutory construction.”[lxxii]

In Chief Justice Fuller’s dissenting opinion in Wong Kim Ark, relative to the respective language of the Civil Rights Act of 1866 and the Citizenship Clause of the Fourteenth Amendment, the Chief Justice writes:

The act was passed and the amendment proposed by the same Congress, and it is not open to reasonable doubt that the words “subject to the jurisdiction thereof” in the amendment were used as synonymous with the words “and not subject to any foreign power” of the act.[lxxiii]

With all due respect to the late former Chief Justice, the above-quoted statement is utterly devoid of textual support in the constitutional language that he purports to construe. Chief Justice Fuller’s bald declaration also begs the question: If the framers of the Fourteenth Amendment wanted the language therein to be “synonymous” with the words in the Civil Rights Act of 1866, why did they change the words? Opponents of universal birthright citizenship have no persuasive answer.

The concluding three paragraphs of Section VI of the Wong Kim Ark opinion explicitly address the nature of the right the Supreme Court has interpreted in the words of the Fourteenth Amendment.

Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation. The Fourteenth Amendment, while it leaves the power, where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.

No one doubts that the Amendment, as soon as it was promulgated, applied to persons of African descent born in the United States, wherever the birthplace of their parents might have been; and yet, for two years afterwards, there was no statute authorizing persons of that race to be naturalized. If the omission or the refusal of Congress to permit certain classes of persons to be made citizens by naturalization could be allowed the effect of correspondingly restricting the classes of persons who should become citizens by birth, it would be in the power of Congress, at any time, by striking negroes out of the naturalization laws, and limiting those laws, as they were formerly limited, to white persons only, to defeat the main purpose of the Constitutional Amendment.

The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, “All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” (Emphasis supplied.)[lxxiv]

By directly declaring, in the emphasized language in the first paragraph of the above-quoted passage, that “the Fourteenth Amendment…has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship,” the Wong Kim Ark opinion explicitly held that the right to citizenship by birth granted by the Fourteenth Amendment may not be restricted by an Act of Congress. In other words, an amendment to the Constitution would be required to do so.

VII

Section VII of the opinion briefly summarizes the Supreme Court’s holding therein before stating it in terms of the specific question presented:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, 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. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. (Emphasis supplied.)[lxxv]

This concludes the majority opinion in the Supreme Court’s decision in Wong Kim Ark.

The precise legal question presented in the Wong Kim Ark case is worded more or less identically at both the beginning and the conclusion of the Supreme Court’s majority opinion. Both include references to the fact that Wong Kim Ark’s parents had a “permanent domicil and residence” in the United States at the time of his birth. Supporters of the President’s EO point to this factual aspect of the case in support of their claim that the Wong Kim Ark decision very narrowly held that Wong Kim Ark was entitled to birthright citizenship only because of the lawful permanent residency of his parents in the United States. This claim is simply not sustained by any actual language in the Wong Kim Ark opinion, as I have attempted to establish over these many pages.

It cannot be disputed that the Wong Kim Ark opinion is replete with references to the fact that Wong Kim Ark’s parents, though Chinese subjects and not U.S. citizens, were “permanent residents domiciled” in the United States at the time of his birth. However, the Wong Kim Ark court’s repeated acknowledgment of this fact does not, in and of itself, mandate that the Wong Kim Ark decision is, as a matter of law, dependent on that fact. There is simply no language in the Wong Kim Ark decision to indicate that its holding is limited to its facts or otherwise dependent on the fact that Wong Kim Ark’s parents were “permanent residents domiciled” in the United States at the time of his birth. Nor is there language therein indicating that children born to alien parents who are within the territory of the United States illegally are excluded from the class of persons who are “subject to the jurisdiction” of the United States for purposes of the citizenship clause of the Fourteenth Amendment.

When the Wong Kim Ark opinion states the court’s formal holding in the passage quoted above, after setting forth the “question presented,” it indicates that, “[f]or the reasons above stated, this court is of opinion that the question must be answered in the affirmative.” The “reasons above stated” include the court’s declaration that the words “and subject to the jurisdiction thereof” were meant to exclude only four types of persons, each of which are clearly enumerated in four stated exceptions, from the applicability of the Citizenship Clause of the Fourteenth Amendment. Conspicuously absent from the Wong Kim Ark court’s enumeration of the four stated exceptions is any reference to the “permanent residence” or “domicile” status of an alien parent present within the territory of the United States when they give birth to a child. Indeed, the Wong Kim Ark opinion, as was previously noted above, expressly declared that an alien is “completely” subject to the “political jurisdiction” of the country in which he finds himself “independently” of whether he intends “to continue such residence” or “of any domiciliation” and “for so long a time as he continues within the dominions” of the United States. Nor does the Wong Kim Ark opinion address—or even mention—the legality or lawfulness of Wong Kim Ark’s parents’ presence in the United States.

Another of the “reasons above stated” is the court’s conclusion—explicitly stated twice in the Wong Kim Ark opinion—that any person “within the jurisdiction” of a state for purposes of the Fourteenth Amendment’s Equal Protection Clause is also “subject to the jurisdiction of the United States” for purposes of the Fourteenth Amendment’s Citizenship Clause. The Wong Kim Ark opinion cites the Supreme Court’s 1886 decision in Yick Wo v. Hopkins, which held that the Equal Protection Clause applied to non-citizens, in furtherance of its holding that the Citizenship Clause applied to Wong Kim Ark, whose parents were Chinese subjects and not citizens of the United States. The coequal application of the Equal Protection Clause and the Citizenship Clause articulated in the Wong Kim Ark opinion is an integral part of the court’s holding—one of the “reasons above stated”—and most certainly does not constitute obiter dictum (sometimes referred to simply as “dictum” or “dicta”).

The question of whether the holding in Wong Kim Ark would apply to children born in the United States to alien parents who are in the country illegally is answered, in my opinion, by reference to a Supreme Court case that, though not specifically discussed in the Wong Kim Ark opinion, is nevertheless cited therein. The case I refer to, which was decided just two years before the Wong Kim Ark decision, is the 1896 case of Wong Wing v. United States,[lxxvi] which is cited on page 699 of the Wong Kim Ark opinion.

On July 15, 1892, Wong Wing and three others were brought before a federal court in Michigan upon a charge of being Chinese persons “unlawfully” within the United States and not entitled to remain within the same.[lxxvii] The court found that the subject persons were “unlawfully” within the United States, that they were “not entitled to remain,” and ordered that they be imprisoned at hard labor for a period of sixty days and then removed from the United States to China.[lxxviii] The adjudication did not involve a trial and also lacked other protections provided by the Fifth and Sixth Amendments to the Constitution. The Supreme Court ultimately held that, though Wong Wing and the others could be removed from the United States without a criminal trial, they could not be sentenced to imprisonment at hard labor without the procedural protections required by the Fifth and Sixth Amendments.[lxxix]

The Wong Wing opinion holds that Congress is without constitutional authority to declare otherwise.

[T]o declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation, unless provision were made that the fact of guilt should first be established by a judicial trial. It is not consistent with the theory of our government that the legislature should, after having defined an offence as an infamous crime, find the fact of guilt and adjudge the punishment by one of its own agents.[lxxx]

In furtherance of its holding that Wong Wing, whose presence in the United States the Supreme Court expressly identified as “unlawful,” was entitled to the constitutional rights set forth in the Fifth and Sixth Amendments, the Wong Wing opinion cites the same case that the Wong Kim Ark opinion cites as one of the bases for its conclusion that any person “within the jurisdiction” of a state for purposes of the Fourteenth Amendment’s Equal Protection Clause is also “subject to the jurisdiction of the United States” for purposes of the Fourteenth Amendment’s Citizenship Clause: Yick Wo v. Hopkins. The Wong Wing opinion states the following:

And in the case of Yick Wo v. Hopkins, 118 U. S. 356, 369, it was said: “The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘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 law.’ These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws.” Applying this reasoning to the Fifth and Sixth Amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty or property without due process of law. (Emphasis supplied.)[lxxxi]

Insofar as the Wong Wing opinion was explicitly addressing the case of an individual who was in the United States illegally, the emphasized language in the above-quoted passage, as a matter of logic, cannot be interpreted as meaning anything other than that “all persons within the territory of the United States” for purposes of the Equal Protection Clause of the Fourteenth Amendment includes those who are within the territory illegally. Thus, pursuant to the 1896 holding in Wong Wing, illegal aliens are “within the jurisdiction” of a state for purposes of the Fourteenth Amendment’s Equal Protection Clause.

Two years later, when the Supreme Court in Wong Kim Ark interpreted the words of Section 1 of the Fourteenth Amendment to provide that any person “within the jurisdiction” of a state for purposes of the Fourteenth Amendment’s Equal Protection Clause is also “subject to the jurisdiction of the United States” for purposes of the Fourteenth Amendment’s Citizenship Clause, the inescapable implication is that children of aliens who were in the country illegally did, in fact, fall within the parameters of the Fourteenth Amendment’s Citizenship Clause, because their parents fell, pursuant to the Wong Wing decision, within the parameters of the Fourteenth Amendment’s Equal Protection Clause. Any other interpretation of the Wong Kim Ark decision would require complete and utter disregard of the existence of the Wong Wing decision.

More recently, the Supreme Court addressed the application of the Equal Protection Clause of the Fourteenth Amendment to illegal aliens. In its 1982 decision in Plyler v. Doe,[lxxxii] the court addressed the question of whether a Texas law that denied to undocumented school-age children the free public education that it provided to children who were either citizens of the United States or legally admitted aliens violated the Equal Protection Clause of the Fourteenth Amendment.[lxxxiii] By a 5-4 majority, the Supreme Court ruled that it did. However, despite the split on the court relative to whether the Texas law violated the Fourteenth Amendment’s Equal Protection Clause, the court was 9-0 on the issue of whether the same clause applied to undocumented (i.e. illegal) aliens. Chief Justice Warren Burger, in his dissenting opinion in Plyler, which was joined by Justices Byron White, William Rehnquist and Sandra Day O’Connor, wrote:

I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically “within the jurisdiction” of a state.[lxxxiv]

The above language unequivocally indicates that all four dissenting justices in Plyler—along with those in the majority; in other words, all nine justices—agreed that the Equal Protection Clause of the Fourteenth Amendment applied to illegal aliens.

If the Plyler decision stands as precedent, and if the Supreme Court’s decision in Wong Kim Ark holding that any person “within the jurisdiction” of a state for purposes of the Equal Protection Clause of the Fourteenth Amendment is “subject to the jurisdiction” of the United States for purposes of the Citizenship Clause of the Fourteenth Amendment—a decision that has stood for 127 years—continues to stand as precedent, then children born to illegal alien parents are “subject to the jurisdiction” of the United States for purposes of the Citizenship Clause of the Fourteenth Amendment.

SUMMARY and CONCLUSIONS

I submit that this paper establishes the following:

The essence of the term “jurisdiction,” as defined in an 1865 dictionary, is the power of a nation to govern, legislate, and exercise authority within its own territory to whatever extent that nation’s laws provide.

In the United States Supreme Court’s 1812 decision in The Schooner Exchange v. McFaddon & others, Chief Justice John Marshall declared that the “jurisdiction” of the United States within its own territory is “absolute,” constitutes “full and complete power” over it, and that any “limitation” or “exception” to this “absolute jurisdiction” must be either “imposed by” or with the “consent of” the nation itself. In other words, unless explicitly limited, the “jurisdiction” of the United States within its own territory is infinitely broad and omnipresent (i.e. “complete”). The precedent established in The Exchange case constitutes one of the primary bases for the Supreme Court’s interpretation of what the word “jurisdiction” means, as it is used in the Citizenship Clause of the Fourteenth Amendment, in the Wong Kim Ark decision.

In the United States Supreme Court’s 1837 decision in New York v. Miln, the court unambiguously declared that the authority of a state to impose its law upon a person “does in no degree depend upon the citizenship of the party” and that, simply by entering upon the territory and jurisdiction of a state—even if the person “shall just have set his foot upon the soil of the state”—the person so entering is “within its jurisdiction.” In other words, to be “within the jurisdiction” (i.e. within the territory) of a state is to be “subject to the jurisdiction” (i.e. subject to the laws) of the state.

In Wong Kim Ark, after a thorough analysis supported by both the English common law and American court precedent, the Supreme Court concluded that the law of the United States up to the enactment of the Civil Rights Act of 1866—which was based on, though not identical to, the doctrine of jus soli as it existed under English common law—provided that the fact of a child’s birth in the United States, regardless of the citizenship of their parents, subjected the child to a duty of allegiance to the United States and reciprocally entitled the child to the protection of the United States and to the other rights and advantages that accompany citizenship. The Wong Kim Ark opinion establishes that this reciprocal obligation of allegiance and protection between a citizen and their sovereign, arising from the fact of a child’s birth within the sovereign’s territory, is the bedrock foundation of what renders a citizen “subject to the jurisdiction thereof.”

The Civil Rights Act of 1866 provided that:

[A]ll persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.

The language chosen by the drafters of the Civil Rights Act expressly provided for citizenship based, not on the nationality of a child’s parents (jus sanguinis), but on the fact of the child’s birth in the United States (jus soli). The chosen language of the Civil Rights Act also provided that the child not be “subject to any foreign power.” Had this same language been implemented into the Fourteenth Amendment, it would likely have excluded from “birthright citizenship” most if not all children born to non-citizens in the United States (depending on what the laws of their own nation provided).

However, the language that was chosen by the framers of the Citizenship Clause of the Fourteenth Amendment to the United States Constitution provides that:

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.

Unlike the language of the Civil Rights Act, which expressly excluded children “subject to any foreign power,” the language of the Citizenship Clause of the Fourteenth Amendment includes any and all children who are “subject to the jurisdiction” of the United States, which, as noted above, is absolute, constituting full and complete power within U.S. territory, subject only to explicit exceptions expressed in the law.

Those who argue that the Citizenship Clause of the Fourteenth Amendment was intended to mean the same thing as provided in the Civil Rights Act of 1866 zealously focus on the historical background leading up to the adoption of the Fourteenth Amendment and the debates in Congress underlying its adoption. However, they ignore two things: first, the fact that the words that the Congress actually enacted into the Fourteenth Amendment are different than those in the Civil Rights Act; and, second, that the words that the Congress actually enacted into the Fourteenth Amendment have a different meaning from those in the Civil Rights Act.

The Wong Kim Ark opinion clarifies, after setting forth an appropriate discussion of the issue, that language in the Supreme Court’s 1873 decision in The Slaughterhouse Cases indicating that the Citizenship Clause of the Fourteenth Amendment did not apply to children of non-citizens born in the United States constituted obiter dictum and did not constitute authoritative law on the question.

The Supreme Court’s 1884 decision in Elk v. Wilkins held that members of Indian tribes in the United States were not “subject to the jurisdiction thereof.” This holding was based, in part, on the court’s finding that the “jurisdiction” of the United States over them was not “complete.” However, the holding in Elk was largely based on the unique and peculiar relationship between the Indian tribes and the United States, as well as the fact that the actual text of the Fourteenth Amendment served to exclude “Indians not taxed” from citizenship. Furthermore, the Supreme Court in Elk took specific note of the fact that, in 1884, many of the laws of the United States simply did not apply to them and could not be applied against them.

The Supreme Court in Wong Kim Ark concluded, based on cited precedent, that the laws of the United States did not apply to persons inhabiting U.S. territory subject to military conquest and occupation by a foreign power. As such, the laws of the United States did not apply to any children born to such persons. Therefore, such children were “not subject to the jurisdiction” of the United States.

The Supreme Court in Wong Kim Ark concluded, based on cited precedent, consistent with Section 25 of the Crimes Act of 1790, that the laws of the United States did not apply to recognized foreign ministers present within United States territory. As such, the laws of the United States did not apply to any children born to such persons while present therein. Therefore, such children were “not subject to the jurisdiction” of the United States.

The Wong Kim Ark opinion took note of the holding in The Exchange case that the laws of the United States did not apply to foreign public ships docked or sailing within United States ports. As such, the laws of the United States did not apply to any children born upon such vessels. Therefore, such children were “not subject to the jurisdiction” of the United States.

After extensive analysis, the Wong Kim Ark opinion sets fourth four—and only four—exceptions to the absolute, complete jurisdiction of the United States within its own territory relative to persons born therein: 1) children born of foreign sovereigns or their ministers; 2) children born on foreign public ships (pursuant to the holding in The Exchange case); 3) children born of enemies within and during a hostile occupation of part of the United States; and, 4) children of members of the Indian tribes owing direct allegiance to their several tribes. The one and only characteristic common to these four exceptions is that the laws of the United States did not apply to persons covered under each exception.

The Wong Kim Ark opinion includes language indicating that aliens residing in the United States are completely subject to the political jurisdiction of the United States: independently of any intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance; for so long a time as they continue within the dominions of the United States. Contrary to the assertions of some, there is no language in the Wong Kim Ark opinion that limits its holding to the children of alien persons who are domiciled in the United States or who are “legally” or “permanently” residing in the United States.

The Wong Kim Ark opinion takes note of the Supreme Court’s 1886 decision in Yick Wo v. Hopkins, which held that the Fourteenth Amendment is not confined to the protection of citizens, that its provisions are universal in their application, and therefore, that it applies to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. Based, in part, on the Yick Wo decision, the Wong Kim Ark opinion concluded that any person “within the jurisdiction” of a state under the Equal Protection Clause of the Fourteenth Amendment must be held to be “subject to the jurisdiction” of the United States under the Citizenship Clause of the Fourteenth Amendment and their children who are born in the United States cannot be less “subject to the jurisdiction thereof.”

In the Supreme Court’s 1896 decision in Wong Wing v. United States, which is cited in the Wong Kim Ark opinion, the court held that, based on the Yick Wo decision, that the Equal Protection Clause of the Fourteenth Amendment applied to Wong Wing and others brought before a federal court in Michigan who were explicitly identified as being “unlawfully” within the United States because they were “within the jurisdiction” of a state for purposes of said clause. More recently, in the Supreme Court’s 1982 decision in Plyler v. Doe, the court unanimously held that the Equal Protection Clause of the Fourteenth Amendment applied to illegal aliens. Therefore, pursuant to the conclusion reached in the Wong Kim Ark opinion and set forth in the preceding paragraph herein, persons “unlawfully within the United States” (i.e. illegal aliens) are “subject to the jurisdiction thereof” for purposes of the Citizenship Clause of the Fourteenth Amendment.

The question of whether the President has the constitutional authority to issue his Executive Order of January 20, 2025, relative to Birthright Citizenship—or whether an amendment to the Constitution is required to accomplish its policy goal—will almost certainly be answered by the United States Supreme Court at some point in the foreseeable future. In my humble opinion, based on the analysis set forth above, in order to find in favor of the President’s authority to issue his Executive Order, the Supreme Court would have to: 1) expressly overrule the Wong Kim Ark decision and, very likely, a host of other longstanding decisions interpreting Section 1 of the Fourteenth Amendment; 2) disregard two centuries of Supreme Court precedent establishing that to be “within the jurisdiction” of a government is to be “subject to the jurisdiction” thereof; and 3) apply the Constitution as if it contains words that it does not. At some point, we will all learn what the Supreme Court decides.

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[i]

(0:29-0:39).

[ii]United States v. Wong Kim Ark,169 U.S. 649 (1898).

[iii] Wong Kim Ark, 169 U.S. at 652.

[iv] Wong Kim Ark, 169 U.S. at 653.

[v] Wong Kim Ark, 169 U.S. at 653-54.

[vi] Wong Kim Ark, 169 U.S. at 654.

[vii] Wong Kim Ark, 169 U.S. at 654.

[viii] Wong Kim Ark, 169 U.S. at 655.

[ix] Crawford v. Washington, 541 U.S. 36 (2004).

[x] Wong Kim Ark, 169 U.S. at 655.

[xi] https://www.latin-is-simple.com/en/vocabulary/phrase/1548/#google_vignette

[xii] https://avalon.law.yale.edu/18th_century/fr1788-1.asp

[xiii] https://avalon.law.yale.edu/19th_century/bar1805t.asp

[xiv] https://loveman.sdsu.edu/docs/1814TreatyofGhent.pdf

[xv] Hamdi v. Rumsfeld, 542 U.S. 507, 559 (2004)(Scalia, J., dissenting).

[xvi] Wong Kim Ark, 169 U.S. at 655.

[xvii] Wong Kim Ark, 169 U.S. at 657-58.

[xviii] Wong Kim Ark, 169 U.S. at 658.

[xix] Wong Kim Ark, 169 U.S. at 658.

[xx] United States v. Rhodes, 27 F. Cas. 785 (C.C.D. Ky. 1866).

[xxi] Wong Kim Ark, 169 U.S. at 662-63.

[xxii] Wong Kim Ark, 169 U.S. at 711-12 (Fuller, C.J., dissenting).

[xxiii] Gardner v. Ward, 2 Mass. 244, note (1805).

[xxiv] Wong Kim Ark, 169 U.S. at 663.

[xxv] Wong Kim Ark, 169 U.S. at 663-64.

[xxvi] Wong Kim Ark, 169 U.S. at 674.

[xxvii] Wong Kim Ark, 169 U.S. at 675.

[xxviii] Wong Kim Ark, 169 U.S. at 675.

[xxix] Wong Kim Ark, 169 U.S. at 675.

[xxx] Wong Kim Ark, 169 U.S. at 675-76.

[xxxi] Wong Kim Ark, 169 U.S. at 678.

[xxxii] Wong Kim Ark, 169 U.S. at 678-79.

[xxxiii] Elk v. Wilkins, 112 U. S. 94 (1884).

[xxxiv] Wong Kim Ark, 169 U.S. at 680-81.

[xxxv] Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).

[xxxvi] Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012), page 101.

[xxxvii] https://www.foxnews.com/politics/justice-scalia-constitution-is-not-a-living-organism

[xxxviii] Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

[xxxix] Cherokee Nation, 30 U.S. at 16.

[xl] Elk v. Wilkins, 112 U.S. at 99-100.

[xli] Elk v. Wilkins, 112 U.S. at 102.

[xlii] Wong Kim Ark, 169 U.S. at 682.

[xliii] Wong Kim Ark, 169 U.S. at 682.

[xliv] Wong Kim Ark, 169 U.S. at 683.

[xlv] The Schooner Exchange v. McFaddon & others, 11 U.S. (7 Cranch) 116 (1812).

[xlvi] Wong Kim Ark, 169 U.S. at 683.

[xlvii] Wong Kim Ark, 169 U.S. at 683-84.

[xlviii] Wong Kim Ark, 169 U.S. at 685.

[xlix] Crimes Act of 1790, § 25, 1 Stat. 112, 117-18.

[l] The Exchange, 11 U.S. (7 Cranch) at 145-46.

[li] Wong Kim Ark, 169 U.S. at 685-86.

[lii] Wong Kim Ark, 169 U.S. at 686-87.

[liii] Wong Kim Ark, 169 U.S. at 687.

[liv] Wong Kim Ark, 169 U.S. at 688.

[lv] Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012), page 170.

[lvi] Wong Kim Ark, 169 U.S. at 693.

[lvii] Wong Kim Ark, 169 U.S. at 693-94.

[lviii]NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 732 (Chauncey A. Goodrich & Noah Porter eds., Springfield, G. & C. Merriam 1865).

[lix] New York v. Miln, 36 U.S. 102, 139-40 (1837).

[lx] Miln, 36 U.S. at 140.

[lxi] Pennoyer v. Neff, 95 U.S. 715, 722 (1878).

[lxii] Burnham v. Superior Court of Cal., Marin County, 495 U.S. 604, 610 (1990).

[lxiii] Wong Kim Ark, 169 U.S. at 694.

[lxiv] Yick Wo v. Hopkins, 118 U.S. 356 (1886).

[lxv] Wong Kim Ark, 169 U.S. at 695.

[lxvi] Wong Kim Ark, 169 U.S. at 696.

[lxvii] Wong Kim Ark, 169 U.S. at 696.

[lxviii] Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012), page 170.

[lxix] Wong Kim Ark, 169 U.S. at 699.

[lxx] Opinion of Alexander Hamilton, on the Constitutionality of a National Bank (Feb. 23, 1791), in LEGISLATIVE AND DOCUMENTARY HISTORY OF THE BANK OF THE UNITED STATES 95, 101 (M. St. Clair Clarke & D. A. Hall eds., Augustus M. Kelley 1967) (1832).

[lxxi] Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012), page 56.

[lxxii] Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012), page 369.

[lxxiii] Wong Kim Ark, 169 U.S. at 721 (Fuller, C.J., dissenting).

[lxxiv] Wong Kim Ark, 169 U.S. at 703-04.

[lxxv] Wong Kim Ark, 169 U.S. at 705.

[lxxvi] Wong Wing v. United States, 163 U. S. 228 (1896).

[lxxvii] Wong Wing, 163 U. S. at 229.

[lxxviii] Wong Wing, 163 U. S. at 229.

[lxxix] Wong Wing, 163 U. S. at 233-34.

[lxxx] Wong Wing, 163 U. S. at 237.

[lxxxi] Wong Wing, 163 U. S. at 238.

[lxxxii] Plyler v. Doe, 457 U.S. 202 (1982).

[lxxxiii] Plyler, 457 U.S. at 205.

[lxxxiv] Plyler, 457 U.S. at 243.