I hate it when I'm wrong but in the argument against birthright citizenship, I offer this mea culpa.
I have for some time tried to make the argument that birthright citizenship was not guaranteed under the 14th Amendment and that the SCOTUS affirmed this in
US v Wong Kim Ark because the court found that Kim Ark's parents were legally domiciled, resident aliens and that this would not apply to the offspring of illegal immigrants.
However after rereading the
majority opinion in the case, I submit that I was wrong in my interpretation. The court did indeed grant citizenship to anyone born in the US based on the principal of
jus soli and English Common Law. But, with that said, it is unimaginable just how the court reached it's decision since it completely disregarded what Congress meant in defining in the phrase "subject to the jurisdiction thereof" in the debates over the amendment, opinions of the US Attorney General along with an established SCOTUS precedent.
Just how did we get to where we are when Justice Horace Gray even goes as far as to contradict himself when, after he quotes passages from the debates to support his position, he writes that
"[T]he 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".
So let us first take a look at what other members of Congress said in regards to what "subject to the jurisdiction thereof" meant.
Senator Jacob Howard was pretty clear
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
-Congressional Globe, Senate, 39th Congress, 1st Session Page 2890
As was Senator Lyman Trumbull
The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof."... What do we mean by "complete jurisdiction thereof?" Not owing allegiance to anybody else. That is what it means.
-Congressional Globe, Senate, 39th Congress, 1st Session Page 2893
Senator Howard later agreed with Senator Trumbull's definition of the word.
I concur entirely with the honorable Senator from Illinois, in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
-Congressional Globe, Senate, 39th Congress, 1st Session Page 2895
To further support the contention that Justice Gray got it wrong, Congress, on April 9, 1866, passed a law which established
"That all 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;" (39th Congress, Session 1, Chapter 31) which later became Section 1992 of the US Revised Statutes in 1873. Now you argue that by choosing different language for the 14th Amendment, Congress changed it's mind but remember, this law was passed only a month after the amendment was proposed and Representative John Bingham, who co-wrote the citizenship clause said this regarding chapter 31 in the debate.
I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.
-Congressional Globe, House of Representatives, 39th Congress, 1st Session Page 1291
So we have here the Congressional record that clarifies "subject to the jurisdiction thereof", now can we find any other reference by the government as to what it means? Well in 1873 the US Attorney General George Henry Williams issued this opinion concerning the 14th Amendment which according to the current DOJ website, "Under the Judiciary Act of 1789, the Attorney General was authorized to render opinions on questions of law when requested by the President and the heads of Executive Branch departments."
"The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them."
-14 U.S. Attorney General Opinions 300
Interestingly enough Justice Gray uses the previous opinions of Attorney Generals to support his opinion while omitting one that came just a year before
Elk v. Wilkins where he himself also wrote similar words in the majority opinion,
The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is 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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
With the history lesson being over on what the intent of just what was meant by "subject to the jurisdiction thereof" you have to ask yourself, how did Justice Gray arrive at this opinion in
US v Wong Kim Ark just 14 years later, and especially after citing Elk?
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... It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides.
What is presented as the opinion in Kim Ark is a pretty ironclad case for birthright citizenship regardless of the legal status of the parents. This is further cemented by a little nugget from Justice William Brennan in
Plyler v Doe and makes it impossible to get around without an amendment or a SCOTUS ruling that settles the question once and for all.
"[B]y 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."