August 23, 2015

940 words 5 mins read

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 the**United **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. 6_a,_ “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: Watch the latest video at

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.

Read more at:

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.