Talk:United States v. Wong Kim Ark/Archives/2013

Summary of holding in infobox

I reverted a change made last March to the description of the holding in the infobox. The question of whether the infobox's description should or should not be an exact quotation, and (if a paraphrase) how specific or general it should be, was discussed at some length during this article's Featured Article candidacy, and the end result of that discussion was that the infobox should summarize the holding of the case very succinctly, and any lingering controversy over whether the decision applied only to children of "domiciled" aliens, and/or only to children of Chinese parents, etc., should be discussed in the body of the article and should not encumber the infobox. Readers will hopefully agree that these issues are more than adequately covered in the "Subsequent developments" section of the article. I'm not suggesting that the version of the article that was approved at FAC should be treated as sacrosanct / burnt into ROM, but the FAC-approved version is entitled to a reasonable degree of deference, and nontrivial changes beyond this point should hopefully be made cautiously, following careful discussion and consensus. Comments, anyone? — Richwales 18:29, 14 May 2012 (UTC)

If we aren't going to be specific, better to abstract it out all the way. -- Foofighter20x (talk) 01:34, 17 December 2012 (UTC)

Yawn 203.9.151.254 (talk) 17:28, 3 March 2013 (UTC)

Lead

The lead says:

....holding that the citizenship language in the Fourteenth Amendment encompassed essentially everyone born in the U.S.—even the U.S.-born children of foreigners—and could not be limited in its effect by an act of Congress.

I would like to change the stuff between dashes to "even the U.S.-born children of foreigners who are domiciled residents of the United States". The Court explicitly used this language. It doesn't take up much space at all. It clarifies that the Court did not issue a broad holding that necessarily applies to undocumented/illegal immigrants who may have no domicile in the U.S. The lead now says that the holding covered "practically everyone" and "essentially everyone" born in the U.S., but millions of people now in the U.S. (and born in the U.S.) are not within the Court's phrase "domiciled residents of the United States". The Court may one day decide that such people are covered, but this particular Court decision did not do so.Anythingyouwant (talk) 18:39, 14 November 2013 (UTC)

Oppose. This issue is already adequately covered in the last paragraph of the lead section. Changing the lead as proposed would give undue prominence to a distinction which was not part of the legal landscape when the Wong Kim Ark ruling was originally issued, and which even today is not sufficiently widely held as to justify its being treated as the majority view. — Richwales (no relation to Jimbo) 19:11, 14 November 2013 (UTC)

You have things precisely backward. The notion in the wikipedia article that the holding applies to "practically everyone" and "essentially everyone" puts words in the mouth of the Court. In contrast, the words that you object to ("domiciled residents of the United States") were most definitely a prominent part of the decision, as they are verbatim contained in the second sentence of the opinion.Anythingyouwant (talk) 21:03, 14 November 2013 (UTC)

The Featured Article Candidacy (FAC) discussion on this article (see this page) made it pretty clear (IMO) that the lead section of the article should not go into any real detail regarding whether or not the Wong Kim Ark case was definitive w/r/t the citizenship status of US-born children of illegal aliens. This controversy is more than adequately treated near the end of the article. The matter of illegal aliens does not appear to have been an issue when the Wong Kim Ark case was decided; and without a clear indication that "domiciled" (as used in the Wong Kim Ark opinion) carried the same connotations of legal vs. illegal presence in the US that the word generally does today, I believe it would be misleading to make the change you suggest. In any case, since the existing language in the lead section is what was approved as a Featured Article, I would be very reluctant to see it changed without a broad consensus. I would suggest bringing this up at the talk page of the "Law" and/or "U.S. Supreme Court Cases" wikiprojects and seeing what other people think. — Richwales (no relation to Jimbo) 22:14, 14 November 2013 (UTC)

You seem to have completely invented the idea that "domiciled residents" means "practically everyone" and "essentially everyone". That isn't what "domiciled" meant when the Court used the term, it's not what domiciled means now, and you have cited no source indicating that "domiciled" ever meant such a thing, or that its meaning ever changed.Anythingyouwant (talk) 22:25, 14 November 2013 (UTC)

Actually the invention seems to be yours. Sources do not support the idea that "domiciled residents of the United States" is a "prominent part of the decision" (i.e., that children of non-domiciled parents are excluded). E.g., see Charles Gordon et al., Immigration Law and Procedure § 92.03(2)(e)(1995), issues of birthright citizenship were, "finally resolved by the Fourteenth Amendment and the Supreme Court's decision in U.S. v. Wong Kim Ark. There is now no doubt that the constitutional rule of universal citizenship for all persons born in the United States is unaffected by the status of their parents, except in minimal situations. Thus American citizenship is acquired by children born in the United States, even though their parents were always aliens, and even if the parents were themselves ineligible to become citizens of the United States. Nor has the acquisition of citizenship been affected by the circumstance that the child's alien parents were in the United States temporarily or even illegally at the time the child was born." (internal footnotes omitted) — ArtifexMayhem (talk) 22:41, 14 November 2013 (UTC)

That source (Charles Gordon) does not say that the holding of Wong Kim Ark applied to practically everyone or essentially everyone (as our lead incorrectly says), but rather Gordon says (correctly) that acquisition of citizenship by birth has not "been affected" by legal or illegal status. Gordon did not attribute that last fact to the holding of Wong Kim Ark. So I don't think what's in the lead is correct.

A separate but related issue is whether the lead should mention "domicile". I think so, based on dozens of sources, such as these: [1][2][3][4][5][6]. Certainly these sources at least refute the notion that Wong Kim Ark applies to practically everyone or essentially everyone, as the lead now incorrectly says.Anythingyouwant (talk) 23:23, 14 November 2013 (UTC)

Since ArtifexMayhem omitted Gordon's footnotes, I went and looked them up, in the current updated version of the treatise (as of 2012). Gordon's statement about noncitizen parents who are in the US "even illegally" is immediately followed by footnote 40, which cites Wong Kim Ark together with "7 FAM 1111(d)". That's a reference to the State Department's Foreign Affairs Manual, which extracts from Wong Kim Ark the conclusion that, "Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally". Interestingly, the FAM quotes the precise part of Wong Kim Ark that they rely upon. The key language in Wong Kim Ark is this: "....with the single additional exception of children of members of the Indian Tribes". This passage is not quoted in the Wikipedia article, but perhaps it should be given that it has led the State Department and treatise-writers to conclude that Wong Kim Ark contains an exclusive list of the exceptions to birthright citizenship.Anythingyouwant (talk) 22:19, 15 November 2013 (UTC)

If anything, the sources you provided support the fact that, per the 14th Amendment, any person born within the territory of the United States is a U.S. citizen (excepting those not under U.S. jurisdiction as given on page 172 of your first source and pages 467-468 of the fifth source). Your second source is a circular reference (see page 189) and the remaining three, [7][8] [9], are simply quoting the Court. — ArtifexMayhem (talk) 10:34, 16 November 2013 (UTC)

I listed those sources to support the idea that the lead should mention "domicile", which is an idea that you have not mentioned in your reply.Anythingyouwant (talk) 17:01, 16 November 2013 (UTC)

None of those sources indicate "domicile" is anything more than the Court explaining the facts of the case. And why did you revert my last edit? — ArtifexMayhem (talk) 17:36, 16 November 2013 (UTC)

If it is merely the Court explaining the facts, then why do we omit it from the lead? As to reverting your edit, please see the talk page section below titled "Four exceptions". Thanks.Anythingyouwant (talk) 17:49, 16 November 2013 (UTC)

• Oppose per RichWales. The change is unnecessary, besides, domiciled makes no distinction between those legally in the country and illegally in the country. Domiciled merely means they live in whatever location. GregJackP Boomer! 05:59, 16 November 2013 (UTC)

Domicile often refers to the official "legal" home of a person.[10] In any event, since the Court used the word "domicil" or "domicile" so prominently, and secondary sources describing the case have done so as well, it seems that there's no valid reason for us to assiduously avoid the term in the lead, whatever it means.Anythingyouwant (talk) 17:21, 16 November 2013 (UTC)

Four exceptions

At page 693, the decision says this (numbers inserted):

The foregoing considerations and authorities irresistibly lead us to these conclusions: 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 [1] children of foreign sovereigns or their ministers, or [2] born on foreign public ships, or [3] of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of [4] children of members of the Indian tribes owing direct allegiance to their several tribes.

Accordingly, I'll fix the error in the article.Anythingyouwant (talk) 16:38, 16 November 2013 (UTC)

Hmmm. I was referencing page 682

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

as cited by;

• Johnson, K.; Aldana, R.; Hing, B.; Saucedo, L. (2009), Understanding Immigration Law, LexisNexis, p. 466, ISBN 9781422486399 {{citation}}: Unknown parameter |displayauthors= ignored (|display-authors= suggested) (help)
• Gonzales, A. R. (2012), "An Immigration Crisis in a Nation of Immigrants: Why Amending the Fourteenth Amendment Won't Solve Our Problems" (PDF), Minn. L. Rev., 96: 1866–1867

I blame the Court's clerks for missing the boat. — ArtifexMayhem (talk) 19:22, 16 November 2013 (UTC)

I wouldn't criticize the clerks. Sometimes a law can have a rather narrow purpose, but yet that purpose is accomplished by using language that is somewhat broader. The purpose here may not have been to affect births aboard ships, and yet that was understood to be an effect of the amendment's language.Anythingyouwant (talk) 20:13, 16 November 2013 (UTC)

"Held" versus "said"

This sentence is in the Wikipedia article: "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[54][112])" (my emphasis added). I'm inclined to change "held" to "said", because, according to some scholars, "the holding of Wong Kim Ark addresses only the children born to immigrants residing legally in the United States at the time of the child's birth."[11] Likewise, this book characterizes the broader statement about birthright citizenship as "dicta" rather than as a "holding". The Supreme Court itself subsequently mentioned in 1967 that scholars have disagreed about which parts of Wong Kim Ark are dicta and which parts were holdings ("Some have referred to this part of the decision as a holding, see, e. g., Hurst, supra, 29 Rocky Mt. L. Rev., at 78-79; Comment, 56 Mich. L. Rev., at 1153-1154; while others have referred to it as obiter dictum, see, e. g., Roche, supra, 99 U. Pa. L. Rev., at 26-27.").[22Anythingyouwant (talk) 04:43, 16 November 2013 (UTC)

• Oppose. The Court "held", not said. Held is a legal term of art. There is no need to change it, it can stay as is. GregJackP Boomer! 06:01, 16 November 2013 (UTC)

Some parts of the opinion were the "holding", and other parts were dicta. This is fairly basic legal knowledge. No lawyer would say that the entire opinion was a "holding". However, the word "said" does apply to the whole opinion.Anythingyouwant (talk) 16:32, 16 November 2013 (UTC)

So find a reliable source (like the one above) that identifies what part is the "holding" and what part is "dictum" (which is the singular, as applies to one case). In case of disagreement, present both, balanced and weighed appropriately. No lawyer would delete the word "holding" because "said" would apply to the whole article, either. GregJackP Boomer! 23:39, 16 November 2013 (UTC)