Discussion about this post

User's avatar
C. Vitalist's avatar

I wrote an article on this a few weeks ago.

https://annoyances.substack.com/p/wong-kim-ark-and-anchor-babies

I disagree with your understanding of common law, and your reading of Ark

Coke (basically the formulator of the common-law understanding of birthright citizenship) goes into a fairly detailed explanation of what "legiance" is, and it's not the mere de facto subjection of jurisdiction, but is also the desire of the sovereign to subject the individual to his jurisdiction. The basic idea is that 'legiance' comes with grants from the sovereign to the individual, and obligations from the individual to the sovereign. The sovereign is free to decide and exclude people from such a regime of protection... but open borders were the norm in the pre-liberal age anyway, as actual economic and social privileges were determined by class and birth, irrespective of one's "citizenship".

It should be noted that "illegal immigration" did not exist at the time Ark was born, as the US had pretty much allowed everyone entry, and everyone allowed entry was granted certain rights and privileges.. with the exception of Indians, who were governed, not by a principle of extraterritoriality (as were diplomats), but the underlying assumption was them not being ready, at some kind of ontological level, for citizenship. The US treatment of Indians was generally inconsistent, and regulated by specific treaties with tribes, rather than precise legal principles.

The idea of a mass of people sneaking across the border, and the idea that this would somehow be officially opposed by the government and the country at large, yet at the same time not stymied was not within the conceptual scope of the 1890s.

But indeed, despite the lack of extraterritoriality (Indians were tried under US/Federal law, if the victim of a given crime was not an Indian), Indians born within the territory of the United States were not magically citizens.. though this theory had actually never been mentioned or tested in court, this seems to be the implication.

Clearly Ark establishes that people allowed into the United States and granted the ability to participate in its life, either temporarily or permanently, are fully subject to its jurisdiction, and children born to such people are citizens by virtue of inheriting this state on a permanent basis. The fact that the US had, at some point in the future, decided that it no longer deemed Chinese as desirable, could not retroactively revoke the citizenship of those born during a regime where such individuals were rightfully resident.

Expand full comment
gmt's avatar

I also note that the “subject to the jurisdiction means allegiance” argument is extremely dangerous to follow. The contrapositive goes that if someone is no longer “allegiant” to the United States, they are not “subject to the jurisdiction”. The amendment doesn’t state that the person has to be subject at the time of the birth, and a broad enough view could take it to mean that if at any time they are not subject, they can no longer be citizens of the United States.

And what does it mean to be “allegiant” here? That’s not in the Constitution. Maybe it means “they were not an illegal immigrant or foreign diplomat”. But maybe it includes “they performed terrorism”, that’s certainly not an act done by someone allegiant to the United States. And then maybe it includes “they went to a protest against the government” or “they broke the law” or “they expressed un-American views”? Certainly I would not put it past this administration, or a future administration, to reach for this interpretation. And if the core argument here is already decided, what will be left to prevent this?

Citizenship is a clear line in the sand, and smudging it here destroys its sanctity entirely.

Expand full comment
12 more comments...

No posts