Donald Trump’s immigration plan still dominates the news cycle, more than twenty-four hours later. Yesterday, Judge Andrew P. Napolitano asserted, but did not prove, the Fourteenth Amendment guarantees an absolute birthright of citizenship to any person born on American soil, under any circumstances. Last night, Bill O’Reilly asserted the same thing. (Bill O’Reilly really should leave that to his “Is It Legal?” team.) This morning, former Governor Jim Gilmore (R-Va.) said the same.
Cite the case, Jim. Cite the case, Bill. Cite the case, Your Honor. (Judge Napolitano surprises us at CNAV. Of all the three, he should have known better than to throw down a legal challenge and fail to cite the case.)
To repeat: do you really think the Constitution gives an absolute citizenship birthright per jus soli (Law of the Soil)? Cite the case!
What the Constitution really says about birthright citizenship
All three cite the Fourteenth Amendment to the Constitution. So: let us examine that more closely.
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 CNAV said yesterday: the citizenship birthright has a qualifier. Note the phrase: subject to the jurisdiction of the United States. Every civics student learned, at least in the early Seventies, that two classes of children would never get birthright citizenship. Specifically, the children of:
- Foreign diplomats, their staffs, and others who register as foreign agents, or
- Invading enemy soldiers occupying the territory of the United States with a view to hostile possession,
do not get the birthright.
Beyond that, Congress decides “the jurisdiction of the United States,” per Article III, Section 2 of the Constitution:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Donald Trump correctly told Bill O’Reilly: no case involving a child born in wedlock, neither of whose parents is even a lawful resident, nor a child born out-of-wedlock, the mother of whom is not a lawful resident, has ever come to the federal courts for a decision. Trump proposes to revoke birthright citizenship. Maybe he intends to re-introduce, or draft a law similar to, Nathan Deal’s Citizenship Reform Act of 2005 (HR 698 in the 109th Congress). After that, he says, let someone test that in court.
Bill O’Reilly certainly ought to cite the case now. Why won’t he? Not that the case would be “dispositive,” as lawyers say. But he could have cited this case:
The most common “birthright citizenship” case
United States v. Wong Kim Ark. The Supreme Court decided this case on 28 March 1898.
Wong Kim Ark was born in 1873, in San Francisco, California. His parents came to the United States to help build the transcontinental railroad. They never naturalized. But they did reside lawfully in San Francisco.
In 1890, Mr. Wong made a temporary trip to China to see some relatives. In August of 1895 he arrived back in San Francisco, on the S. S. Coptic. The Collector of Customs for San Francisco refused him permission to disembark, on the grounds that Mr. Wong was not a citizen of the United States. The customs collector ordered the steamship officers to confine Mr. Wong on board with the view to having the ship take him back the way he came.
Wong Kim Ark immediately filed for a writ of habeas corpus. The United States Attorney for the Southern District of California argued against the writ. At issue: the Chinese Exclusion Acts, by which Congress sought to exclude all Chinese.
The Court named the real issue of this 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 domicile 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.
Note carefully: Mr. Wong’s parents:
- Had a permanent and lawful domicile in the United States,
- Had jobs here, and
- Were not working for the Chinese ambassador, consul-general, or any other such officer.
The court then held specifically that the children of the two classes of parents mentioned already (foreign diplomatic agents and other personnel, and invading troops) would not have the birthright.
The only way to use the Wong case to grant the birthright to an illegal alien child is to construe the distinctions of Mr. Wong’s parents as mere obiter dicta. When that case came before the court, no one even alleged the Wongs came to, or lived in, this country illegally. Nor did the court go so far as to strike down any law excluding any classes of non-citizen from landing or crossing. Nor did the court explicitly say that any person born in the United States, to parents “just passing through,” and left the country with its parents, would be a citizen. Wong Kim Ark did none of these things. He made his temporary visit at the age of seventeen.
So why not cite the case?
Where do the judge, the TV host, and the Presidential candidate stand now? If U.S. v. Wong Kim Ark did grant this absolute birthright they champion, why did they not cite the case? Perhaps because they knew, as Donald Trump said, no one has yet tested the proposition.
In fact, no one has tested any claim to citizenship from a person, born aboard an airliner en route, say, from Toronto to Mexico City, while said aircraft was in American airspace. Nor have we yet seen a test of birth tourism. A pregnant, foreign woman takes a room in a hotel in the United States, and when the time comes for her delivery, she then checks into a local hospital. Does her child get the citizenship birthright?
The Wong case won’t help here. Wong Kim Ark’s parents did not live in any hotel. They came lawfully and had permanent living quarters.
So CNAV asks again: cite the case. If any case specifically says the child has a birthright of citizenship even if the parents (or unwed mother) came into the country illegally, cite the case.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
- Christianity Today
- Constitution 101
- Creation Corner
- Entertainment Today
- First Amendment
- Foundation of our Nation
- Guest Columns
- Human Interest
- Ignite the Pulpit
- Let's Talk
- Money matters
- Racial Issues
- Tea Party
- Trump elevator pitch
- World news
Constitution2 days ago
Declaration of Independence – what it means
Accountability9 hours ago
Students say NYC principal who tried to ‘get rid of’ white teachers has created ‘insanity’ at the school
Accountability2 days ago
R. Kelly sues prison for placing him on suicide watch following conviction
Legislative3 days ago
Rep. Lauren Boebert in worship service speech: ‘Church is supposed to direct government’
Guest Columns3 days ago
We must get Trump
Accountability4 days ago
Supreme Court rules President Biden can end Trump’s ‘Remain in Mexico’ policy
Constitution2 days ago
Lauren Boebert denounces faith-state separation
Constitution4 days ago
Election law leads SCOTUS 2022 term