LIVE: Supreme Court hears arguments in birthright citizenship case

General Sour, representing the petitioner, argued that the 14th Amendment's phrase 'subject to the jurisdiction thereof' means owing 'direct and immediate allegiance' to the United States. This allegiance, he contended, is established through 'lawful domicile,' a status that temporary visitors and illegal aliens lack. He emphasized that the clause was intended to grant citizenship to freed slaves who had established domicile and no foreign allegiance, not to temporary residents.

Sour cited Senator Trumbull's explanation that 'subject to the jurisdiction thereof' means 'not owing allegiance to anybody else' and an 1884 court recognition that it means 'owing direct and immediate allegiance.' He also pointed to the term 'reside' in the clause as textual evidence supporting a domicile-based theory.

Ms. Wong, representing the respondent, argued that the 14th Amendment enshrined the English common law rule of birthright citizenship, meaning 'everyone born here is a citizen alike.' She asserted that the phrase 'subject to the jurisdiction thereof' only excludes a 'closed set of exceptions' for individuals cloaked with a 'fiction of extraterritoriality,' such as children of foreign diplomats, foreign invaders, or tribal Indians, who are considered subject to another sovereign's jurisdiction.

Wong cited the 1898 Wong Kim Arc case as controlling precedent, arguing it established that domicile is irrelevant to the common law rule of birthright citizenship. She also referenced Lynch v. Clark, which held that a U.S.-born child of temporary Irish visitors was a U.S. citizen, and historical commentaries by Lincoln's Attorney General and Kent.

Both sides heavily relied on the 1898 Supreme Court case Wong Kim Arc, but offered diametrically opposed interpretations. General Sour argued that Wong Kim Arc supported his position by focusing on the 'lawfully domiciled' status of Wong Kim Arc's parents, implying domicile was a key factor. Ms. Wong countered that the case's 'controlling rule of decision' explicitly stated that domicile was 'irrelevant under common law' for determining birthright citizenship, and that any mention of domicile was merely a stipulated fact or an effort to calm public anxieties about Chinese immigrants.

Sour highlighted the 20 instances of 'domicile' in the Wong Kim Arc opinion, including in the question presented and the holding (01:22:02). Wong pointed to passages in Wong Kim Arc that explicitly state foreign nationals owe allegiance 'independently of any domiciliation' (01:25:59) and that the majority opinion's rationale was rooted in English common law where domicile was not a factor (01:23:15).

General Sour raised policy concerns, stating that unrestricted birthright citizenship 'demeans the priceless and profound gift of American citizenship,' acts as a 'powerful pull factor for illegal immigration,' and has 'spawned a sprawling industry of birth tourism' from potentially hostile nations. Ms. Wong countered that policy considerations should not re-engineer the original meaning of the 14th Amendment, emphasizing that the fixed, bright-line rule has contributed to national growth and prevents manipulation.

Sour cited media reports estimating 'over one million or 1.5 million' birth tourism cases from China alone, with '500 birth tourism companies' (01:06:10). Wong argued that the framers considered immigration issues and chose a universal rule to 'foreclose any cast creating exceptions' and to ensure a citizenry to 'populate the military to settle the country' (01:57:35).