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
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]
. . .
[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
the Fourteenth Amendment has failed to accomplish its purpose, and
The foregoing considerations and authorities irresistibly lead us to these conclusions:
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.
"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.