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Trump’s Immigration Fans Need to Read Wong Kim Ark

It’s sad that Donald Trump has inspired so many good conservatives to promote fantasies about the 14th Amendment.

The Supreme Court addressed the issue of birthright citizenship directly, and Mark Levin and Laura Ingram know it. They are Constitutional lawyers.

Both Levin and Ingraham are familiar with United States v. Wong Kim Ark (1898) which established, thoroughly, that citizenship by birth has been the law of the land since before the Declaration of Independence and was codified by the 14th Amendment. (…).

From the majority opinion:

“Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.”

The opinion goes on:

“As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States.”

And, finally, the Supreme Court ruled:

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.”

Levin, Ingraham, and Limbaugh are arguing that the Wong Kim Ark case was decided wrongly and the Dred Scott case was decided rightly! (Not a good position.) But, even if Dred Scott was right at the time (and it was not), it was overturned by the 14th Amendment, as Wong Kim Ark makes clear: “finally put at rest by the Fourteenth Amendment of the Constitution . . .”

I realize that immigration is a hot-button issue. But promoting fantasies about the Constitution does no good. I thought we conservatives believed in original intent or, like me and Robert Bork, original understanding.

Levin, Ingraham, and Limbaugh are now firmly in the “living Constitution” camp, wanting to change the meaning of the text to fit the needs of the moment.

Don’t fall for it. The Constitution is not dead, but it’s dormant. It comes to life through Article V, not through talk radio.


Some have raised the question on Facebook of allegiance. In short, does allegiance to country of origin on the part of the parents prevent a child of immigrants, born on US soil, from jurisdiction under the 14th Amendment?

Justice Gray’s opinion in Wong Kim Ark anticipated this argument and negated it:

Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of theUnited 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, is yet, in the words of Lord Coke, in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”

Van Harvey provides some great arguments against my opinion on this epic Facebook thread. You have to read it.


UPDATE: Judge Andrew Napolitano clearly explains the problem:

ANOTHER UPDATE: John Yoo writes on National Review:

Of course, the American people can always amend the Constitution to change the principle of birthright citizenship. Putting to one side the waste of time and resources entailed, amending the Constitution would be a sorry mistake. Rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party. It was the Republican party that opposed Dred Scott. It was the Republican party that fought and won the Civil War. And it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race. If we are to discard one of the greatest attributes of American exceptionalism, let it be the handiwork of nativist Democrats and candidates who appeal to the lesser angels of their nature.

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NOTE: I toned this down from the original. I was too worked up and used irresponsible characterizations of people I admire and respect. I am sorry.

Author: William Hennessy

Co-founder of St. Louis Tea Party Coalition and Nationwide Chicago Tea Party Persuasive design expertLatest book: Turning On Trump: An Evolution (2016)Author of The Conservative Manifest (1993), Zen Conservatism (2009), Weaving the Roots (2011), and Fight to Evolve (2016)I believe every person deserves the dignity of meaningful work as the only path to human flourishing.

14 Comments on “Trump’s Immigration Fans Need to Read Wong Kim Ark

  1. Trump’s Critics Are Wrong about the 14th Amendment and Birthright Citizenship
    Donald Trump continues to bewilder political experts. He unabashedly wades into politically dangerous territory and yet continues to be rewarded by favorable poll results. He has clearly tapped into a reserve of public resentment for inside-the-Beltway politics. How far this resentment will carry him is anyone’s guess, but the Republican establishment is worried. His latest proposal to end birthright citizenship has set off alarm bells in the Republican party. The leadership worries that Trump will derail the party’s plans to appeal to the Latino vote. Establishment Republicans believe that the future of the party depends on being able to capture a larger share of this rapidly expanding electorate. Trump’s plan, however, may appeal to the most rapidly expanding electorate, senior citizens, and may have an even greater appeal to the millions of Republicans who stayed away from the polls in 2012 as well as the ethnic and blue-collar Democrats who crossed party lines to vote Republican in the congressional elections of 2014. All of these voters outnumber any increase in the Latino vote that Republicans could possibly hope to gain from a population that has consistently voted Democratic by a two-thirds majority and shows little inclination to change. RELATED: Not Hard to Read the 14th Amendment As Not Requiring Birthright Citizenship — And Nothing Odd About Supporting Such a Reading Critics say that Trump’s plan is unrealistic, that it would require a constitutional amendment because the 14th Amendment mandates birthright citizenship and that the Supreme Court has upheld this requirement ever since its passage in 1868. The critics are wrong. A correct understanding of the intent of the framers of the 14th Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship. Simple legislation passed by Congress and signed by the president would be constitutional under the 14th Amendment. Birthright citizenship is the policy whereby the children of illegal aliens born within the geographical limits of the U.S. are entitled to American citizenship — and, as Trump says, it is a great magnet for illegal immigration. Many of Trump’s critics believe that this policy is an explicit command of the Constitution, consistent with the British common-law system. This is simply not true. Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship. Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was in 1868 that a definition of citizenship entered the Constitution with the ratification of the 14th Amendment. Here is the familiar language: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Thus there are two components to American citizenship: birth or naturalization in the U.S. and being subject to the jurisdiction of the U.S. Today, we somehow have come to believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction; but this renders the jurisdiction clause utterly superfluous. If this had been the intention of the framers of the 14th Amendment, presumably they would have said simply that all persons born or naturalized in the U.S. are thereby citizens. Indeed, during debate over the amendment, Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.” RELATED: End Birthright Citizenship Now: Barack Obama Makes the Case Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S. Furthermore, there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship. In the case of Wong Kim Ark (1898) the Court ruled that a child born in the U.S. of legal aliens was entitled to “birthright citizenship” under the 14th Amendment. This was a 5–4 opinion which provoked the dissent of Chief Justice Melville Fuller, who argued that, contrary to the reasoning of the majority’s holding, the 14th Amendment did not in fact adopt the common-law understanding of birthright citizenship. GET FREE EXCLUSIVE NR CONTENT The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms “citizen” or “citizenship.” The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under common law is the doctrine of perpetual allegiance. America’s Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that “the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain. RELATED: Trump’s Immigration Plan Is a Good Start — For All GOP Candidates Consider as well that, in 1868, Congress passed the Expatriation Act. This permitted American citizens to renounce their allegiance and alienate their citizenship. This piece of legislation was supported by Senator Howard and other leading architects of the 14th Amendment, and characterized the right of expatriation as “a natural and inherent right of all people, indispensable to the enjoyment of the right of life, liberty and the pursuit of happiness.” Like the idea of citizenship, this right of expatriation is wholly incompatible with the common-law understanding of perpetual allegiance and subjectship. One member of the House expressed the general sense of Congress when he proclaimed: “The old feudal doctrine stated by Blackstone and adopted as part of the common law of England . . . is not only at war with the theory of our institutions, but is equally at war with every principle of justice and of sound public policy.” The notion of birthright citizenship was characterized by another member as an “indefensible doctrine of indefeasible allegiance,” a feudal doctrine wholly at odds with republican government. Nor was this the only legislation concerning birthright citizenship that Congress passed following the ratification of the 14th Amendment. As mentioned above, there was almost unanimous agreement among its framers that the amendment did not extend citizenship to Indians. Although born in the U.S., they were not subject to the jurisdiction of the U.S. Beginning in 1870, however, Congress began to pass legislation offering citizenship to Indians on a tribe-by-tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become a citizen. Thus Congress used its legislative authority under Section Five of the 14th Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to the jurisdiction of the United States. A constitutional amendment is no more required today than it was in 1923. A nation that cannot determine who becomes citizens or believes that it must allow the children of those who defy its laws to become citizens is no longer a sovereign nation. Legislation to end birthright citizenship has been circulating in Congress since the mid ’90s and such a bill is circulating in both houses today. It will, of course, not pass Congress, and if it did pass it would be vetoed. But if birthright citizenship becomes an election issue and a Republican is elected president, then who knows what the future might hold. It is difficult to imagine that the framers of the 14th Amendment intended to confer the boon of citizenship on the children of illegal aliens when they explicitly denied that boon to Indians who had been born in the United States. Those who defy the laws of the U.S. should not be allowed to confer such an advantage on their children. This would not be visiting the sins of the parents on the children, as is often claimed, since the children of illegal aliens born in the U.S. would not be denied anything to which they otherwise would have a right. Their allegiance should follow that of their parents during their minority. A nation that cannot determine who becomes citizens or believes that it must allow the children of those who defy its laws to become citizens is no longer a sovereign nation. No one is advocating that those who have been granted birthright citizenship be stripped of their citizenship. Equal protection considerations would counsel that citizenship once granted is vested and cannot be revoked; this, I believe, is eminently just. The proposal to end birthright citizenship is prospective only. MORE IMMIGRATION THE VERY REAL ECONOMIC COSTS OF BIRTHRIGHT CITIZENSHIP WHAT CONSERVATIVES GET WRONG ABOUT BIRTHRIGHT CITIZENSHIP AND THE CONSTITUTION DONALD TRUMP’S HALF-SERIOUS, HALF-FANTASY IMMIGRATION PLAN Political pundits believe that Trump should not press such divisive issues as immigration and citizenship. It is clear, however, that he has struck a popular chord — and touched an important issue that should be debated no matter how divisive. Both the Republican party and the Democratic party want to avoid the issue because, while both parties advocate some kind of reform, neither party has much interest in curbing illegal immigration: Republicans want cheap and exploitable labor and Democrats want future voters. Who will get the best of the bargain I will leave for others to decide. — Edward J. Erler is a senior fellow at the Claremont Institute.

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      1. The writer of the article is a Professor who is a Constitutional EXPERT. If you read the beginning of the POST the Professor asks for the information to be spread to the masses. Did you even read the post? If not, read it, you may learn something.

        1. Greg,

          In the matter of experts, John Yoo is also an expert, he believes that Gray meant what he wrote in *Ark*. (Yoo clerked for Clarence Thomas and is a law professor at Berkeley.) Judge Andrew Napolitano might classify as an expert, too, and he also believes that birthright citizenship changes require a Constitutional amendment. And that’s exactly my point.

          We have conservatives on talk radio telling people that simple law or executive order is all that’s needed to change birthright citizenship. But the fact that numerous conservative legal experts disagree tells you that the fight would be long and hard. At best, the law would be on hold until it gets to the Supreme Court (2 years, maybe?). And I honestly think the court would strike it down.

          Next, we’d go to a Constitutional amendment. How long would that take?

          In the meantime, we have plenty of other problems to solve, the open border. Fix that. I want that fixed. And Trump can probably build a wall before his legislation ever gets to the Supreme Court.

          Rush Limbaugh and Mark Levin shouting that we can change everything tomorrow with a simple bill in Congress are misdirecting people’s energy and attention to a fight they’re not going to win. While we fight that battle, millions more illegals will enter the country.

          If we don’t prioritize and face the world as it is instead of the way we want it to be, we’re going to accomplish as much in the next 8 years as we accomplished in the last 8.

        2. What would you expect coming from a “Professor” from Berkeley? A liberal mindset. Nonetheless, it can be changed by statute. Precedent has already been set with the American Indian Citizenship Act of 1924. The Republicans should write up the statute and see where it goes. Most DemonRATS would not support it and Hussein Obama would veto it, so they would need 2/3 of a vote they cannot get to override the veto, but it would put them on record. After all they have had a show/shell vote to repeal Obamacare over 50 times. Talk about a waste of time, when Boehner and McConnel do not have the courage to not FUND it. I have contacted them to defund Planned Parenthood, I await their response, but I do not hold out much hope that they will do the right thing, but I still would like to see the phones burned up pressuring these cowards to grow a spine.

        3. It is an easy fix if those in charge have the will to do what is right. What should be done is secure the border; end sanctuary cities by defunding them if they do not enforce the law and prosecute lawbreakers; go after the employers who hire illegals with heavy fines and jail time; deport all illegals. Some consider deporting the illegals an impossible task. It is not. First off, the 11+million, with the emphasis on the plus, did not come all at once. If they did, it would have been considered an invasion, although, in reality it was an invasion. Let it be known that if you are here illegally, you will be found and you will be deported. Deputize all law enforcement to handle illegal immigration. Then, when law enforcement comes across them they would be put into the system for deportation. They would be jailed with a high bond until their hearing and then deport them. There are plea bargains done every day in our court system, so instead of jailing them give the apprehended illegals the option of leaving the country or be placed in jail, until their hearing wherein they then would be deported. Most of the illegals would most likely begin to self-deport. The U.S. is a sovereign nation and our laws should not be flouted, but enforced. It can be done and it should be done.
          Bill O’Reilly has started a campaigned to pass a law, the Kate Steinle law, where any illegal immigrant who has been deported and is caught again would receive 5 years in jail. Why does O’Reilly think another law would have prevented this killing, when current laws are not being enforced by the Obama Regime? There is no need for “Kate’s law.” If a law is not enforced, is it a law? The following are laws already not being enforced: 8 U.S. Code § 1326 – Reentry of removed aliens any alien who—(1) has been denied admission, excluded, deported,… shall be fined under title 18, or imprisoned not more than 2 years, or both. …) any alien whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both. The answer is to demand from those in charge to ENFORCE the law.

  2. Do you believe the framers of the 14th Amendment meant to give power and authority to illegal aliens to bestow US citizenship on the birth of their child simply by having the baby on U.S. soil? I think not. As for the case of Wong Kim Ark, the Court ruled that a child born in the U.S. of legal aliens, (not illegal aliens) was entitled to “birthright citizenship.” Same is true to legal U.S. citizens who have a child born outside the states. That child is a U.S. citizen, as is the case with John McCain, who was born in Panama to parents who were U.S. citizens. So, I believe it is not settled law.
    Besides, the Supreme Court is not infallible. They have ruled incorrectly many times. They incorrectly legislated from the bench in their most recent decisions on ObamaCare and Gay Marriage to name a few.
    So, there is no need to amend the Constitution with Article 5 when Article 1 Section 8 Clause 4 gives Congress the authority over naturalization of people. If need be, Congress would only need to pass a bill or a resolution clarifying the intent of the framers of the 14th Amendment. Precedent has been set when Congress passed The Indian Citizenship Act of 1924, wherein, it bestowed citizenship on all Native Americans born within the territorial limits of the country. Will Congress be able to pass such legislation remains to be seen, but that is not to say it cannot happen.

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