LIVE: Supreme Court Hears Birthright Citizenship Case
Quick Read
Summary
Takeaways
- ❖General Sour (government) argues the 14th Amendment's Citizenship Clause requires 'lawful domicile' for parents, meaning lawful presence with intent to remain permanently, for a child to gain birthright citizenship.
- ❖Miss Wang (respondent) counters that the 14th Amendment codified the English common law rule, granting citizenship to all born on U.S. soil unless subject to a 'fiction of extraterritoriality' (e.g., children of ambassadors, foreign invaders, tribal Indians).
- ❖The government claims 'Wong Kim Arc' (1898) supported a domicile requirement, while the respondent asserts it explicitly rejected domicile as irrelevant to birthright citizenship under common law.
- ❖The government highlights 'birth tourism' and international comparisons, noting most modern nations do not have unrestricted birthright citizenship.
- ❖The respondent emphasizes the 14th Amendment's purpose to prevent future Congresses from stripping citizenship and argues the exceptions are a 'closed set,' not open to new interpretations based on modern issues.
- ❖The debate includes the meaning of 'allegiance' in the 19th century: whether it implies subjective loyalty and domicile (government) or merely being subject to local laws (respondent).
Insights
1Government's Domicile-Based Allegiance Theory
General Sour argues that the 14th Amendment's phrase 'subject to the jurisdiction thereof' means owing 'direct and immediate allegiance' to the United States. This allegiance, for aliens, is established through 'lawful domicile,' defined as lawful presence with the intent to remain permanently. Therefore, children born to temporary visitors or illegal aliens, who lack this domicile, would not be birthright citizens.
Cites Senator Trumbull's explanation that 'subject to the jurisdiction thereof' means 'not owing allegiance to anybody else' (), and the text of the clause presupposes domicile (). Mentions that illegal aliens lack the legal capacity to establish domicile ().
2Respondent's Common Law 'Born on Soil' Rule
Miss Wang asserts that the 14th Amendment enshrined the English common law rule of birthright citizenship, meaning virtually everyone born on U.S. soil is a citizen. The only exceptions are a 'closed set' for those under a 'fiction of extraterritoriality,' such as children of foreign diplomats, foreign invaders, or tribal Indians, who are considered subject to another sovereign's jurisdiction.
States that Wong Kim Arc held the 14th Amendment embodies the English common law rule (). Cites Lynch v. Clark (1844), which found a US-born daughter of temporary Irish visitors to be a citizen (), and Kent's commentaries supporting this ().
3Interpretation of Wong Kim Arc
The government claims Wong Kim Arc's holding was predicated on the parents being 'lawfully domiciled,' suggesting domicile was a key factor. The respondent vehemently disagrees, arguing the majority opinion in Wong Kim Arc explicitly states domicile is irrelevant under common law and that the case's holding was an 'a fortiori' application of the broader common law rule.
General Sour points to the opinion's use of 'domicile' 20 times, including in the question presented and holding (, ). Miss Wang cites Justice Gray's statement that foreign nationals owe allegiance 'independently of any domiciliation' () and that the rule of decision was the common law, where domicile was not relevant ().
4The 'Closed Set' of Exceptions and Congressional Power
Miss Wang argues the exceptions to birthright citizenship are a 'closed set' established by the 14th Amendment, and Congress cannot create new ones, even for unforeseen modern circumstances like widespread illegal immigration or birth tourism. The 14th Amendment sets a 'floor' for citizenship that Congress cannot go below.
States Wong Kim Arc says the framers were not trying to introduce new exceptions but to foreclose them (). Emphasizes that the 14th Amendment's purpose was to put citizenship 'out of the reach of any government official to destroy' ().
5Practical Implications and Workability
The government acknowledges that a domicile-based system would require determining parental intent to remain, but suggests it could be managed through objective immigration status checks. The respondent warns that such a system would be messy, lead to thousands of babies losing citizenship, and call into question the citizenship of millions, past, present, and future.
General Sour mentions SSA guidance for objective checks based on immigration status (). Miss Wang states the executive order would render 'swaths of American laws senseless' and cause 'thousands of American babies' to lose citizenship ().
Lessons
- Understand the two primary legal interpretations of the 14th Amendment's Citizenship Clause: the government's 'domicile-based allegiance' theory versus the respondent's 'English common law born on U.S. soil' rule.
- Recognize the historical context of the 14th Amendment, particularly its role in overturning Dred Scott and establishing citizenship for freed slaves, as both sides use this to support their arguments.
- Consider the implications of a potential shift in birthright citizenship interpretation, which could affect immigration policies, the legal status of individuals, and the definition of American citizenship for future generations.
Quotes
"The citizenship clause was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children whose allegiance to the United States had been established by generations of doicile here. It did not grant citizenship to the children of temporary visitors or illegal aliens who have no such allegiance."
"Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship. It operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws but also jump in front of those who follow the rules."
"Ask any American what our citizenship rule is, and they'll tell you. Everyone born here is a citizen alike. That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy."
"The 14th Amendment's fixed bright line rule has contributed to the growth and thriving of our nation. It comes from text and history. It is workable and it prevents manipulation. The executive order fails on all those counts."
"The entire history of the citizenship clause is is is is driven by the notion that we don't want to have any other exceptions."
Q&A
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