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birthright citizenship
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birthright citizenship The US Supreme court in 1898 held by 6 to 2 that all aliens except Indians, invaders and diplomats were US citizens by birth if born in the US. Trump cannot change this by executive order or by a law from Congress. It will take a US Constitutional Amendment, passed by 2/3 of the House and 2/3 of the Senate and ratified by 38 states. Not going to happen. Wong Kim Ark (黃金德[72]) was born in San Francisco. Various sources state or imply his year of birth as being 1873,[73] 1871,[74][75] or 1868.[76][77] His father (Wong Si Ping) and mother (Wee Lee) were immigrants from China and were not United States citizens, as the 1882 Chinese Exclusion Act made them ineligible for citizenship.[78][79] Wong worked in San Francisco as a cook.[80] Wong visited China in 1890, and upon his return to the United States in July 1890, he was readmitted without incident because of his U.S. citizenship. In November 1894, Wong sailed to China for another temporary visit, but when he returned in August 1895, he was detained at the Port of San Francisco by the Collector of Customs, who denied him permission to enter the country, arguing that Wong was not a U.S. citizen despite his having been born in the U.S., but was instead a Chinese subject because his parents were Chinese.[81] Wong was confined for five months on steamships off the coast of San Francisco while his case was being tried.[58] According to Salyer, the San Francisco attorney George Collins had tried to persuade the federal Justice Department to bring a Chinese birthright citizenship case before the Supreme Court. An article by Collins was published in the May/June 1895 American Law Review, criticizing the Look Tin Sing ruling and the federal government's unwillingness to challenge it, and advocating the international law view of jus sanguinis citizenship.[82] Eventually, Collins was able to convince U.S. Attorney Henry Foote, who "searched for a viable test case and settled on Wong Kim Ark".[83] With the assistance of legal representation by the Chinese Consolidated Benevolent Association,[84] Wong Kim Ark challenged the refusal to recognize his birth claim to U.S. citizenship, and a petition for a writ of habeas corpus was filed on his behalf in federal district court.[85][86] The arguments presented before District Judge William W. Morrow[87] centered on which of two competing interpretations of the phrase subject to the jurisdiction thereof in the Citizenship Clause should govern a situation involving a born in the United States to alien parents.[88] Wong's attorneys argued that the phrase meant "'subject to the laws of the United States,' comprehending, in this expression, the allegiance that aliens owe in a foreign country to obey its laws"—an interpretation, based on the common law inherited by the United States from England, that would encompass essentially everyone born in the U.S. via the principle of jus soli (citizenship based on place of birth). The U.S. government claimed that subject to the jurisdiction thereof meant "to be subject to the political jurisdiction of the United States"—an interpretation, based on international law, which would exclude parents and their who owed allegiance to another country via the principle of jus sanguinis (citizenship inherited from a parent).[89][90] The question of the citizenship status of U.S.-born of alien parents had, up to this time, never been decided by the Supreme Court.[68][91] The U.S. government argued that Wong's claim to U.S. citizenship was ruled out by the Supreme Court's interpretation of jurisdiction in its 1873 Slaughterhouse Cases ruling,[66] but the district judge concluded that the language in question was obiter dictum and not directly relevant to the case at hand.[68][92] The government also cited a similar statement in Elk v. Wilkins, but the judge was not convinced by this argument either.[93][94] Wong's attorneys cited the Look Tin Sing case, and the district judge agreed that in the absence of clear direction from the Supreme Court, this case definitively settled the question of citizenship for Wong and others like him as far as federal courts in the Ninth Circuit were concerned.[95][96] The judge saw the Look Tin Sing holding reaffirmed in the Gee Fook Sing case and noted further that another part of the Supreme Court's Slaughterhouse Cases opinion said that "it is only necessary that [a man] should be born or naturalized in the United States to be a citizen of the Union."[97] Concluding that the Look Tin Sing decision constituted a controlling precedent in the Ninth Circuit, Judge Morrow ruled that subject to the jurisdiction thereof referred to being subject to U.S. law (the first of the two proposed interpretations). On January 3, 1896,[98][99] the judge declared Wong Kim Ark to be a citizen because he was born in the U.S.[100][101] The U.S. government appealed the district court ruling directly to the United States Supreme Court.[102][103] According to Salyer, government officials—realizing that the decision in this case "was of great importance, not just to Chinese Americans, but to all American citizens who had been born to alien parents", and concerned about the possible effect of an early ruling by the Supreme Court on the 1896 presidential election—delayed the timing of their appeal so as to avoid the possibility of a decision based more on policy concerns than the merits of the case.[104] Oral arguments before the Supreme Court were held on March 5, 1897.[105] Solicitor General Holmes Conrad presented the government's case;[106] Wong was represented before the Court by Maxwell Evarts, former U.S. Assistant Attorney General J. Hubley Ashton,[107] and Thomas D. Riordan.[108] The Supreme Court considered the "single question" in the case to be "whether a born in the United States, of parent[s] of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States."[109] It was conceded that if Wong was a U.S. citizen, "the acts of congress known as the 'Chinese Exclusion Acts,' prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him."[110] Opinion of the Court Associate Justice Horace Gray wrote the opinion of the Court in the Wong Kim Ark case. In a 6–2 decision[111][112] issued on March 28, 1898,[113] the Supreme Court held that Wong Kim Ark had acquired U.S. citizenship at birth and that "the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth."[114] Upholding the concept of jus soli (citizenship based on place of birth),[116] the Court held that the Citizenship Clause needed to be interpreted in light of English common law,[117] which had included as subjects virtually all native-born , excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country's territory.[118][119][120] The court's majority held that the subject to the jurisdiction phrase in the Citizenship Clause excluded from U.S. citizenship only those persons covered by one of these three exceptions (plus a fourth "single additional exception"—namely, that Indian tribes "not taxed" were not considered subject to U.S. jurisdiction).[121][57] The majority concluded that none of these four exceptions to U.S. jurisdiction applied to Wong; "during all the time of their said residence in the United States, as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the emperor of China". Quoting approvingly from an 1812 case, The Schooner Exchange v. M'Faddon, in which Chief Justice John Marshall said, "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute"[122][123][124]—and agreeing with the district judge who had heard Wong's original habeas corpus petition that comments in the Slaughterhouse Cases about the citizenship status of born to non-citizen parents did not constitute a binding precedent[69]—the Court ruled that Wong was a U.S. citizen from birth, via the Fourteenth Amendment, and that the restrictions of the Chinese Exclusion Act did not apply to him.[125] An act of Congress, they held, does not trump the Constitution; such a law "cannot control [the Constitution's] meaning, or impair its effect, but must be construed and executed in subordination to its provisions."[126][127] The majority opinion referred to Calvin's Case ( 1608 ) as stating the fundamental common law principle that all people born within the King's "allegiance" were subjects, including of "aliens in amity". In the years since Wong Kim Ark, the concept of jus soli citizenship has never been seriously questioned by the Supreme Court, and [has] been accepted as dogma by lower courts. Citizenship cases since Wong Kim Ark have dealt mainly with situations falling outside the bounds of the Citizenship Clause[4]—such as citizenship via jus sanguinis for foreign-born of U.S. citizens,[159] or circumstances under which U.S. citizenship may be lost.[160] The Wong Kim Ark court's affirmation of jus soli as the primary rule determining United States citizenship has been cited in several Supreme Court decisions affirming the citizenship of U.S.-born individuals of Chinese or Japanese ancestry.[160][161][162][163] The court's holding that the language of the Constitution should be understood in light of the common law has been cited in numerous Supreme Court decisions dealing with the interpretation of the Constitution or acts of Congress.[164][165][166] The Wong Kim Ark court's understanding of Fourteenth Amendment jurisdiction was also cited in a 1982 case involving the rights of illegal immigrants.[167] An unsuccessful effort was made in 1942 by the Native Sons of the Golden West to convince the Supreme Court to revisit and overrule the Wong Kim Ark ruling, in a case (Regan v. King) challenging the citizenship status of roughly 2,600 U.S.-born persons of Japanese ancestry. The plaintiffs' attorney termed Wong Kim Ark "one of the most injurious and unfortunate decisions" ever handed down by the Supreme Court and hoped the new case would give the court "an opportunity to correct itself".[168] A federal district court[169][170] and the Ninth Circuit Court of Appeals[171] summarily rejected this contention, each citing Wong Kim Ark as a controlling precedent, and the Supreme Court declined to hear the case.[172] |
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Few issues in Constitutional law are as clear as birthright citizenship for all persons born in the U.S. unless they are children of diplomats or an invading army. Aliens who avoid inspection at entry into the U.S. are not an invading army, despite rabid speculation by right wing crazies to the contrary. No executive order or statute can redefine the U.S. Constitution, as the Wong case clearly said. Despite the Chinese Exclusion act which prevented Wong's parents from being able to become U.S. citizens, Wong Kim Ark was a citizen of the U.S. at birth. It would take a Constitutional Amendment to change that result, which is very unlikely to happen. So why does Trump pretend otherwise? To feed his anti immigrant base red meat and incite hatred of aliens. Vote as though your life and safety depended on it. It may.
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