Replies

[E]ach of the thirteen states had its own rules for citizenship in that state, which then formed the basis of national citizenship. . . . the Fourteenth Amendment . . . added to the Constitution, for the first time, a definition of both national and state citizenship.

. . . in a series of revisions in the Senate the Citizenship Clause was altered and its intention became unclear. Some legislators believed that the amendment’s new phrase, “subject to the jurisdiction thereof,” meant exactly the same thing as the language in the Civil Rights Act: “not subject to any foreign power.” Senators Lyman Trumbull of Illinois and Reverdy Johnson of Maryland were very explicit on this issue. Said Trumbull:
“What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else; that is what it means.”

The linked document is short, concise, and summarizes and explains much that has been in articles posted here. The reply below is about three of the cases mentioned in the article and is what I have added. Hover for some definitions.

I used as source for the three cases:

INS v. Rios-Pineda (1985)

Plyler v. Doe (1982)

United States v. Wong Kim Ark (1898)

I believe it is true that there has never been before the Supreme Court the issue of citizenship specific to children born here of ILLEGAL aliens, or of mothers legally here but with the intention of returning to their home country with their "American citizen" babies. I include currently in the status of overstaying visas as ILLEGAL aliens.

United States v. Wong Kim Ark (1898) was about an adult male born here. The alien parents resided here legally. INS v. Rios-Pineda (deported ILLEGAL alien parents of children born here) contained the remark or observation that children born here are "within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States;" it was in dictum I believe . . . but used by some to be a holding and though birthright citizenship had, at most, incidental bearing on the case nevertheless the remark is assumed to be a Court ruling. Apparently. Plyler v. Doe (1982) was simply about all children no matter what are entitled to a public education. But there was that famous Footnote 10.

Why was an incidental remark or observation with a narrower meaning in United States v. Wong Kim Ark labeled in dictum (See below United States v. Wong Kim Ark "'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.") and the aforementioned incidental remark with the broad meaning considered, a holding? Why didn't the broad meaning also evoke Chief Justice Marshall to explain:

"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."

United States v. Wong Kim Ark text made the point over and over that any child born in the Country is a matter of common law location, location, location and therefore "is as much a citizen as the natural-born child of a citizen;" jus solis

But

United States v. Wong Kim Ark text recognized that there can be exceptions. It excepted children of foreign sovereigns or their ministers, "or of enemies within and during a hostile occupation of part of our territory." It even included two other exceptions: born on foreign public ships and "children of members of the Indian tribes owing direct allegiance to their several tribes."

United States v. Wong Kim Ark text noted that "issue born abroad . . . of American citizens . . . should inherit, to some extent at least, the rights of their parents;" jus sanguinis an exception to common law? BTW United States v. Wong Kim Ark included this "depending on birth within the realm [common law], [was] originally founded on feudal considerations"; like compliant servile obedient subjects (Democratic votes) and cheap labor? The two Parties needed votes and cheap labor in the 19th Century.

Two other cases are Plyler v. Doe; and INS v. Rios-Pineda.

In INS v. Rios-Pineda seemed like every time the ILLEGAL alien mother's child born here was mentioned there was included a remark that the child "is a citizen of the United States." Did that remark have a bearing on the case? I do not think so I believe the couple lost the case.


Plyler v. Doe contains the Footnote: with the observation that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." [Begin Plyler v. Doe quotes] Syllabus Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. . . . In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." [Footnote 10] . . . [Footnote 10] Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], 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.'" Id. at 169 U. S. 687. Justice Gray concluded that "[e]very 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." Id. at 169 U. S. 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912). [end Footnote 10 quotes. Return to Plyler v. Doe top] . . . . [Begin United States v. Wong Kim Ark quotes] . . . In a very recent case, the Supreme Court of New Jersey held that a person born in this country of Scotch parents who were domiciled but had not been naturalized here was "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment, and was "not subject to any foreign power" within the meaning of the Civil Rights Act of 1866; and, in an opinion delivered by Justice Van Syckel with the concurrence of Chief Justice Beasley, said: "The object of the Fourteenth Amendment, as is well known, was to confer upon the colored race the right of citizenship. It , however, gave to the colored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races, and unless the general rule, that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the language, 'all persons born in the United States, and subject to the jurisdiction thereof,' was intended (Page 169 U. S. 693) to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race." Benny v. O'Brien (1895), 29 Vroom (58 N.J.Law), 36, 39, 40. 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. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle." 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 (Page 169 U. S. 694) 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." Ex.Doc. H.R. No. 10, 1st sess. 32d Congress, p. 4; 6 Webster's Works, 56; United States v. Carlisle, 16 Wall. 147, 83 U. S. 155; Calvin's Case, 7 Rep. 6a; Ellesmere on Postnati 63; 1 Hale P.C. 62; 4 Bl.Com. 92. To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.. . . . [End of United States v. Wong Kim Ark quotes Return to Footnote 10]

Plyler v. Doe contains the Footnote: with the observation that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

[Begin Plyler v. Doe quotes]

Syllabus

Held:

A Texas statute
- which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and
- which authorizes local school districts to deny enrollment to such children,
violates the Equal Protection Clause of the Fourteenth Amendment.

. . .

In appellants' view,
persons who have entered the United States illegally
are not "within the jurisdiction" of a State
- even if they are present within a State's boundaries and
- subject to its laws.
Neither our cases nor
the logic of the Fourteenth Amendment support that constricting construction of
the phrase "within its jurisdiction." [Footnote 10]

. . .

[Footnote 10] Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], 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.'" Id. at 169 U. S. 687.

Justice Gray concluded that "[e]very 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." Id. at 169 U. S. 693.

As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).

[end Footnote 10 quotes. Return to Plyler v. Doe top]

. . . .

[Begin United States v. Wong Kim Ark quotes]

. . .

In a very recent case, the Supreme Court of New Jersey held that

a person born in this country of Scotch parents
- who were domiciled but had not been naturalized here
was "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment, and
was "not subject to any foreign power" within the meaning of the Civil Rights Act of 1866;
and, in an opinion delivered by Justice Van Syckel with the concurrence of Chief Justice Beasley, said:
"The object of the Fourteenth Amendment,
- as is well known,
was to confer upon the colored race the right of citizenship.
It
- , however,
gave to the colored people no right superior to that granted to the white race.
The ancestors of all the colored people then in the United States were of foreign birth, and
could not have been naturalized or in any way have become entitled to the right of citizenship.
The colored people were no more subject to the jurisdiction of the United States,
- by reason of their birth here,
than were the white children born in this country of parents who were not citizens.
The same rule must be applied to both races, and unless the general rule, that,
when the parents are domiciled here,

birth establishes the right to citizenship, is accepted,
the Fourteenth Amendment has failed to accomplish its purpose, and

the colored people are not citizens.
The Fourteenth Amendment, by the language, 'all persons born in the United States, and
subject to the jurisdiction thereof,'
was intended (Page 169 U. S. 693) to bring all races, without distinction of color,
within the rule which prior to that time pertained to the white race." Benny v. O'Brien (1895), 29 Vroom (58 N.J.Law), 36, 39, 40.

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,

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.
His allegiance to the United States is direct and immediate,
- and, although but local and temporary, continuing only so long as he remains within our territory, is yet,
  - in the words of Lord Coke in Calvin's Case, 7 Rep. 6a,
- "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;"
and his child,
- as said by Mr. Binney in his essay before quoted,
"if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle."
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 (Page 169 U. S. 694) 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."
- Ex.Doc. H.R. No. 10, 1st sess. 32d Congress, p. 4;
- 6 Webster's Works, 56;
- United States v. Carlisle, 16 Wall. 147, 83 U. S. 155;
- Calvin's Case, 7 Rep. 6a;
- Ellesmere on Postnati 63; 1 Hale P.C. 62;
- 4 Bl.Com. 92.

To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.. . . .

[End of United States v. Wong Kim Ark quotes Return to Footnote 10]


United States v. Wong Kim Ark "'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.". In INS v. Rios-Pineda every time the ILLEGAL alien mother's child born here was mentioned it was added "who is a citizen of the United States" and no objections in the text from other judges. In United States v. Wong Kim Ark such a remark going the opposite way got an immediate response and was recognized as in dictum. [Quote] 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." 16 Wall. 83 U. S. 73. 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 (Page 169 U. S. 679) 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. 1 Kent Com. 44; Story Conflict of Laws § 48; Wheaton International Law (8th ed.) § 249; The Anne (1818), 3 Wheat. 435, 16 U. S. 445, 16 U. S. 446; Gittings v. Crawford (1838), Taney 1, 10; In re Baiz (1890), 135 U. S. 403, 135 U. S. 424. 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." Cohens v. Virginia (1821), 6 Wheat. 264, 19 U. S. 399.

United States v. Wong Kim Ark "'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.".

In INS v. Rios-Pineda every time the ILLEGAL alien mother's child born here was mentioned it was added "who is a citizen of the United States" and no objections in the text from other judges.

In United States v. Wong Kim Ark such a remark going the opposite way got an immediate response and was recognized as in dictum.

[Quote]

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." 16 Wall. 83 U. S. 73.

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 (Page 169 U. S. 679) 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.
- 1 Kent Com. 44;
- Story Conflict of Laws § 48;
- Wheaton International Law (8th ed.) § 249;
- The Anne (1818), 3 Wheat. 435, 16 U. S. 445, 16 U. S. 446;
- Gittings v. Crawford (1838), Taney 1, 10;
- In re Baiz (1890), 135 U. S. 403, 135 U. S. 424.

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."
Cohens v. Virginia (1821), 6 Wheat. 264, 19 U. S. 399.

Citizenship follows the parents, not what piece of land they happen to be over when a kid drops out of a woman.

Look up 31 CFR 515.300 and 31 CFR 515.299. By federal regulation any child born in the US is a citizen. Those same regulations can be changed so that any child born in the US to an illegal immigrant is not a citizen.

You can’t change it for anyone already born, that would be an ex-post-facto law. You can change it quite simply for future births.