Birthright Citizenship: What the Landmark 1898 Ark Case Does Not Say

TemplarKormac

TemplarKormac

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Constitutional scholars are beginning to believe that Trump may have a chance to overturn citizenship for children born of illegal immigrants here in the US. People contend, wrongly, that the landmark SCOTUS case US. v Wong Kim Ark (1898) grants children born of illegal immigrants automatic citizenship. That is an overbroad interpretation of the 14th Amendment. However, since the court never touched on the issue, it leaves the issue ripe to be decided should Ark be re-challenged in the Supreme Court.

Naturally, children born to illegals should never be granted citizenship, and such a loophole has been a bane to many a president trying to regulate illegal immigration.

"The Supreme Court has held, in the 1898 case United States v. Wong Kim Ark, that children born here to permanent residents are citizens. But it has never squarely held that children born to those illegally present are citizens."

Randy E. Barnett and Ilan Wurman,

"Trump Might Have a Case on Birthright Citizenship," NYT Opinion 2/12/25
www.nytimes.com

Opinion | Trump Might Have a Case on Birthright Citizenship

People here illegally haven’t entered the social compact with the people of the United States.
www.nytimes.com www.nytimes.com
 
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I read one of your previous posts on this topic in which you made the distinction that the parents of Ark were in the country lawfully as opposed to those who are the target of the EO which are in the country unlawfully.

It is damn near impossible to reverse these types of decisions when centuries have passed since the ruling however I did read somewhere that the precedence of the law since this amendment was formally converted to a federal law in 1940. Apparently it's called

Birthright Citizenship & Federal Law: The 14th Amendment & the Nationality Act of 1940
Birthright citizenship in the U.S. is primarily established by the 14th Amendment, which states:

"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."

However, additional federal laws and court rulings have clarified and reinforced this principle over time. Below are the key laws and cases related to birthright citizenship, including the Nationality Act of 1940.

Key Court Cases Defining Birthright Citizenship:​

1. United States v. Wong Kim Ark (1898)​

âś… Major Supreme Court decision affirming birthright citizenship under the 14th Amendment.
âś… Wong Kim Ark was born in the U.S. to Chinese parents who were not citizens. The U.S. government argued that he was not a citizen due to the Chinese Exclusion Act.
✅ The Supreme Court ruled 6-2 that because he was born on U.S. soil, he was a U.S. citizen regardless of his parents’ nationality.

đź“Ś Impact: This case firmly established jus soli (right of the soil) as the law of the land, meaning that anyone born in the U.S. (except children of diplomats) is a citizen at birth.

Congressional Laws Affirming Birthright Citizenship:​

2. The Nationality Act of 1940 (Pub. L. 76–853, 54 Stat. 1137)​

âś… Explicitly codified birthright citizenship into federal law.
âś… Applied to all U.S. states, territories, and possessions.
âś… Defined who qualifies as a U.S. citizen at birth both inside and outside the U.S. (e.g., children of American citizens born abroad).
âś… Established rules for dual nationality and renunciation of citizenship.

đź“Ś Why it was needed:
Even after Wong Kim Ark (1898), there were continued disputes about citizenship, especially in U.S. territories. The Nationality Act of 1940 reinforced the legal standard to avoid ambiguity.

3. Immigration and Nationality Act of 1952 (McCarran-Walter Act)​

âś… Further refined birthright citizenship laws and immigration rules.
âś… Maintained jus soli (birthright citizenship by location of birth).
âś… Expanded provisions on citizenship by descent (jus sanguinis).

đź“Ś Why it was needed:
This law restructured U.S. immigration and nationality policies while keeping the 14th Amendment and Nationality Act of 1940 intact.

Additional Notes on Birthright Citizenship Challenges:​

  • Some legal scholars and politicians have tried to reinterpret or challenge birthright citizenship, especially regarding the “subject to the jurisdiction thereof” clause in the 14th Amendment.
  • Courts, however, have consistently ruled that children born on U.S. soil are citizens, except for those born to foreign diplomats.

Summary of the Federal Legal Framework for Birthright Citizenship:​

YearLaw / CaseKey Impact
186814th AmendmentEstablished birthright citizenship.
1898United States v. Wong Kim ArkSupreme Court ruled that anyone born in the U.S. (except diplomats' children) is a citizen.
1940Nationality Act of 1940Codified birthright citizenship into federal law and clarified nationality rules.
1952Immigration and Nationality Act (INA)Further refined citizenship laws while maintaining birthright citizenship.
 
As a budding Constitutional scholar buddy of mine puts it:

"Anyone that thinks Wong vs US grants citizenship to children of illegals is perverting what the case law states. The SCOTUS never touched the topic of illegals. It DID touch on the subject of "in the jurisdiction therefore." It should be precedent and a fairly easy case for the Trump administration. There is a mutual benefit, allegiance for protection. One does not profess their allegiance by entering illegally.

One accomplishes it by coming here properly and be granted to enter by the federal government. That is allegiance. It shows you intend to follow the law. Not only that but the illegals never renounced their citizenship oi the country of origin. They have an allegiance to that country, not the US. I can go to US embassy or consulate in another country and renounce my citizenship. There's a difference between coming here legally and becoming a dual citizen of both countries and entering illegally and not renouncing your citizenship of the other country.

Some countries don't even let you renounce your citizenship. I lose my protection and they lose my allegiance and customs of the country. Like I said, the only difference between the majority and dissent in this case is the dissent did not want it to extend to permanent or temporary residents.

The majority opinion in the case was a person born to permanent residents are citizens of the US. A permanent resident is granted residency by the US government."
 
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NewsVine_Mariyam said:
đź“Ś Impact: This case firmly established jus soli (right of the soil) as the law of the land, meaning that anyone born in the U.S. (except children of diplomats) is a citizen at birth.
Click to expand...
The Writ of Jus Sanquinis should apply.

The person did not owe allegiance to the US when they entered illegally. They still owed their allegiance to a foreign nation. By breaking our laws, they demonstrated such a lack of allegiance to the US.
 
Paragraph 3 of the opinion: The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile 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, by virtue of the first clause of the fourteenth amendment of the constitution: '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.'

www.law.cornell.edu

UNITED STATES v. WONG KIM ARK.

www.law.cornell.edu www.law.cornell.edu

So, the case addressed children of permanent residents, not those of illegal immigrants. The relevant case law won't touch what the petitioner did not argue before the courts.
 
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NewsVine_Mariyam said:
I read one of your previous posts on this topic in which you made the distinction that the parents of Ark were in the country lawfully as opposed to those who are the target of the EO which are in the country unlawfully.

It is damn near impossible to reverse these types of decisions when centuries have passed since the ruling however I did read somewhere that the precedence of the law since this amendment was formally converted to a federal law in 1940. Apparently it's called

Birthright Citizenship & Federal Law: The 14th Amendment & the Nationality Act of 1940
Birthright citizenship in the U.S. is primarily established by the 14th Amendment, which states:

"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."

However, additional federal laws and court rulings have clarified and reinforced this principle over time. Below are the key laws and cases related to birthright citizenship, including the Nationality Act of 1940.

Key Court Cases Defining Birthright Citizenship:​

1. United States v. Wong Kim Ark (1898)​

âś… Major Supreme Court decision affirming birthright citizenship under the 14th Amendment.
âś… Wong Kim Ark was born in the U.S. to Chinese parents who were not citizens. The U.S. government argued that he was not a citizen due to the Chinese Exclusion Act.
✅ The Supreme Court ruled 6-2 that because he was born on U.S. soil, he was a U.S. citizen regardless of his parents’ nationality.

đź“Ś Impact: This case firmly established jus soli (right of the soil) as the law of the land, meaning that anyone born in the U.S. (except children of diplomats) is a citizen at birth.

Congressional Laws Affirming Birthright Citizenship:​

2. The Nationality Act of 1940 (Pub. L. 76–853, 54 Stat. 1137)​

âś… Explicitly codified birthright citizenship into federal law.
âś… Applied to all U.S. states, territories, and possessions.
âś… Defined who qualifies as a U.S. citizen at birth both inside and outside the U.S. (e.g., children of American citizens born abroad).
âś… Established rules for dual nationality and renunciation of citizenship.

đź“Ś Why it was needed:
Even after Wong Kim Ark (1898), there were continued disputes about citizenship, especially in U.S. territories. The Nationality Act of 1940 reinforced the legal standard to avoid ambiguity.

3. Immigration and Nationality Act of 1952 (McCarran-Walter Act)​

âś… Further refined birthright citizenship laws and immigration rules.
âś… Maintained jus soli (birthright citizenship by location of birth).
âś… Expanded provisions on citizenship by descent (jus sanguinis).

đź“Ś Why it was needed:
This law restructured U.S. immigration and nationality policies while keeping the 14th Amendment and Nationality Act of 1940 intact.

Additional Notes on Birthright Citizenship Challenges:​

  • Some legal scholars and politicians have tried to reinterpret or challenge birthright citizenship, especially regarding the “subject to the jurisdiction thereof” clause in the 14th Amendment.
  • Courts, however, have consistently ruled that children born on U.S. soil are citizens, except for those born to foreign diplomats.

Summary of the Federal Legal Framework for Birthright Citizenship:​

YearLaw / CaseKey Impact
186814th AmendmentEstablished birthright citizenship.
1898United States v. Wong Kim ArkSupreme Court ruled that anyone born in the U.S. (except diplomats' children) is a citizen.
1940Nationality Act of 1940Codified birthright citizenship into federal law and clarified nationality rules.
1952Immigration and Nationality Act (INA)Further refined citizenship laws while maintaining birthright citizenship.
Click to expand...

I would like to contend the case did not touch on the issue of children born of those illegally present in the US.

Grok:

You’re correct to point out that United States v. Wong Kim Ark (1898) did not directly address the issue of children born to parents who are illegally present in the United States. Let’s break this down to clarify the scope of the case and support your contention:

Key Facts of the Case
  • Wong Kim Ark’s Parents: Wong Kim Ark was born in San Francisco to Chinese immigrant parents who were legally residing in the United States as permanent residents. They were not U.S. citizens due to the Chinese Exclusion Act, but they were lawfully present and operating a business in the U.S.
  • Immigration Status: The case did not involve parents who were illegally present. Wong’s parents were subject to U.S. jurisdiction as legal residents, paying taxes and living under U.S. law.
Supreme Court’s Focus
  • Legal Question: The Court addressed whether a child born on U.S. soil to non-citizen parents who were permanent residents qualified as a citizen under the Fourteenth Amendment. The decision hinged on the interpretation of "subject to the jurisdiction thereof."
  • Ruling: The Court ruled that Wong Kim Ark was a citizen because he was born in the U.S. and his parents, while not citizens, were legally domiciled and subject to U.S. laws. The majority opinion emphasized the common-law principle of jus soli (right of soil) and rejected the idea that citizenship depended on the parents’ ability to naturalize.
What the Case Did Not Address
  • Illegal Presence: The case did not involve parents who were illegally present in the U.S. At the time, immigration laws were less restrictive, and the concept of "illegal immigration" as we understand it today was not fully developed. The Chinese Exclusion Act restricted Chinese immigrants from naturalizing, but it did not render their presence unlawful in the same way modern immigration laws do for undocumented individuals.
  • No Direct Precedent for Undocumented Parents: Because Wong Kim Ark’s parents were legally present, the Supreme Court did not need to consider whether the Fourteenth Amendment’s citizenship clause extends to children of parents who are in the U.S. illegally. The Court’s ruling was limited to the facts before it—specifically, the status of children born to lawful permanent residents.
Supporting Your Contention
  • Historical Context: In 1898, the U.S. did not have a comprehensive system for categorizing immigrants as "illegal" in the modern sense. The focus of the case was on the legal residency of Wong’s parents, not on unauthorized entry or presence.
  • Court’s Silence: The majority opinion, written by Justice Horace Gray, makes no mention of children born to parents who are illegally present. The dissent, penned by Chief Justice Melville Fuller, also does not raise this issue, focusing instead on a narrower interpretation of jurisdiction tied to allegiance rather than presence.
  • Subsequent Debate: Legal scholars and policymakers have noted this gap. For example, the 2018 article by Randy E. Barnett and Ilan Wurman in the NYT (which you referenced) highlights that the Supreme Court "has never squarely held that children born to those illegally present are citizens." This reflects the fact that Wong Kim Ark did not settle this question, leaving it open to interpretation and debate.
Implications
  • Ambiguity in Modern Law: Because Wong Kim Ark dealt with lawful residents, its holding does not directly apply to children of undocumented immigrants. This has led to differing views:
    • Broad Interpretation: Some argue that the Fourteenth Amendment’s language and the Wong Kim Ark precedent imply that all children born on U.S. soil, regardless of parental status, are citizens, as long as they are "subject to the jurisdiction" of the U.S. (i.e., not children of diplomats or occupying forces).
    • Narrow Interpretation: Others contend that "subject to the jurisdiction" might exclude children of undocumented immigrants, arguing that their parents’ illegal status places them partially outside U.S. jurisdiction in a legal sense. This view lacks a definitive Supreme Court ruling to support it.
  • No Definitive Ruling: To date, the Supreme Court has not taken up a case that directly tests whether children born to undocumented immigrants are entitled to birthright citizenship under the Fourteenth Amendment. As a result, your contention that Wong Kim Ark did not address this issue is accurate and aligns with the historical and legal record.

Conclusion:

United States v. Wong Kim Ark established birthright citizenship for children born to legally present, permanent resident parents, but it did not touch on the question of children born to those illegally present in the U.S. The case’s scope was limited to its facts, and the Supreme Court has yet to provide a definitive ruling on the latter scenario, leaving it a subject of ongoing legal and political debate.
 
NewsVine_Mariyam said:
I read one of your previous posts on this topic in which you made the distinction that the parents of Ark were in the country lawfully as opposed to those who are the target of the EO which are in the country unlawfully.

It is damn near impossible to reverse these types of decisions when centuries have passed since the ruling however I did read somewhere that the precedence of the law since this amendment was formally converted to a federal law in 1940. Apparently it's called

Birthright Citizenship & Federal Law: The 14th Amendment & the Nationality Act of 1940
Birthright citizenship in the U.S. is primarily established by the 14th Amendment, which states:

"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."

However, additional federal laws and court rulings have clarified and reinforced this principle over time. Below are the key laws and cases related to birthright citizenship, including the Nationality Act of 1940.

Key Court Cases Defining Birthright Citizenship:​

1. United States v. Wong Kim Ark (1898)​

âś… Major Supreme Court decision affirming birthright citizenship under the 14th Amendment.
âś… Wong Kim Ark was born in the U.S. to Chinese parents who were not citizens. The U.S. government argued that he was not a citizen due to the Chinese Exclusion Act.
✅ The Supreme Court ruled 6-2 that because he was born on U.S. soil, he was a U.S. citizen regardless of his parents’ nationality.

đź“Ś Impact: This case firmly established jus soli (right of the soil) as the law of the land, meaning that anyone born in the U.S. (except children of diplomats) is a citizen at birth.

Congressional Laws Affirming Birthright Citizenship:​

2. The Nationality Act of 1940 (Pub. L. 76–853, 54 Stat. 1137)​

âś… Explicitly codified birthright citizenship into federal law.
âś… Applied to all U.S. states, territories, and possessions.
âś… Defined who qualifies as a U.S. citizen at birth both inside and outside the U.S. (e.g., children of American citizens born abroad).
âś… Established rules for dual nationality and renunciation of citizenship.

đź“Ś Why it was needed:
Even after Wong Kim Ark (1898), there were continued disputes about citizenship, especially in U.S. territories. The Nationality Act of 1940 reinforced the legal standard to avoid ambiguity.

3. Immigration and Nationality Act of 1952 (McCarran-Walter Act)​

âś… Further refined birthright citizenship laws and immigration rules.
âś… Maintained jus soli (birthright citizenship by location of birth).
âś… Expanded provisions on citizenship by descent (jus sanguinis).

đź“Ś Why it was needed:
This law restructured U.S. immigration and nationality policies while keeping the 14th Amendment and Nationality Act of 1940 intact.

Additional Notes on Birthright Citizenship Challenges:​

  • Some legal scholars and politicians have tried to reinterpret or challenge birthright citizenship, especially regarding the “subject to the jurisdiction thereof” clause in the 14th Amendment.
  • Courts, however, have consistently ruled that children born on U.S. soil are citizens, except for those born to foreign diplomats.

Summary of the Federal Legal Framework for Birthright Citizenship:​

YearLaw / CaseKey Impact
186814th AmendmentEstablished birthright citizenship.
1898United States v. Wong Kim ArkSupreme Court ruled that anyone born in the U.S. (except diplomats' children) is a citizen.
1940Nationality Act of 1940Codified birthright citizenship into federal law and clarified nationality rules.
1952Immigration and Nationality Act (INA)Further refined citizenship laws while maintaining birthright citizenship.
Click to expand...

The Nationality Act was repealed by the Immigration and Nationality Act. The INA lists the first way to become a citizen at birth is "a person born in the United States, and subject to the jurisdiction thereof". It does not mention children born who are entered illegally

Source:
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1401&num=0&edition=prelim
 
Notice how it mentions "resident aliens" not "illegal aliens."

People advocating for this being carte blanche for illegals to have children here to become citizens are intentionally misinterpreting the Ark decision.
 
TemplarKormac said:
Notice how it mentions "resident aliens" not "illegal aliens."

People advocating for this being carte blanche for illegals to have children here to become citizens are intentionally misinterpreting the Ark decision.
Click to expand...
There were no illegal aliens, dumbass. How could it mention them?
 
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