Talk:United States v. Wong Kim Ark/Archives/2016

Holdings

There was a recent edit to claim that this case held that "Children born in the United States of legally and permanently resident foreigners acquire United States citizenship at birth via the Citizenship Clause of the Fourteenth Amendment." That legally is simply not in the original case; the holding of the case, in the words of its author, is

a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil 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. s:United_States_v._Wong_Kim_Ark/Opinion_of_the_Court

That says nothing about being legally resident.--Prosfilaes (talk) 05:36, 24 August 2015 (UTC)

This was (and still is) one of the most difficult parts of the article to write both succinctly and accurately. My own reading of all the sources has led me to conclude that none of the courts dealing with Wong Kim Ark's case were even thinking about the legal-vs.-illegal immigration issue. Rather, the critical point in their minds regarding the nature of Wong's parents' presence in the US was that his father was not a diplomat or other official of the Chinese imperial government — he was an ordinary businessman. As a consequence, the traditional common-law exception to jus soli citizenship excluding children born to foreign rulers or diplomats did not apply to Wong Kim Ark. Placing excessive weight on the "permanent domicil and residence" phrase in the majority opinion is inappropriate here, because it is clear from the case as a whole, as well as from the way the question was put to the Supreme Court and the lower courts, that this was never the main issue — rather, this extra bit of verbiage was an elaboration of the central claim that Wong's parents were ordinary people and were not in the US in any sort of official Chinese governmental capacity.

While I will concede that "practically everyone born in the United States is a U.S. citizen" and "Children born in the United States generally acquire United States citizenship at birth" (the expressions used in the article before about a week ago) are inexact, the newer proposed wordings are (IMO) more inexact because the latest changes will likely leave a reader with the misimpression that the Supreme Court was ruling on an distinction (legal vs. illegal residence) that most legal experts agree was never under consideration by the court. Additionally, the previous (even if imprecise) wording more accurately summarizes (again IMO) the way the Wong Kim Ark ruling has been understood by every court since 1898 that has considered citizenship matters and invoked Wong Kim Ark as a controlling precedent. — Richwales (no relation to Jimbo) 04:50, 25 August 2015 (UTC)

Rich, the Court said "subject to the jurisdiction" means "not subject to any foreign power". The latter excludes people who are subject to a foreign power, and to my mind that excludes people who legally belong in a foreign country. But "my mind" may be incorrect. Have scholars or courts opined on this point?Anythingyouwant (talk) 05:05, 25 August 2015 (UTC)

I'm not sure what you're saying here. The court's majority noted that "not subject to any foreign power" was the language used in the Civil Rights Act of 1866 (Wong Kim Ark at 675, 681, 682, 688); and the majority also commented that any possible doubt over what this phrase meant "gave way, in the Fourteenth Amendment of the Constitution, to the affirmative words, 'subject to the jurisdiction of the United States.'" The dissenting minority, on the other hand, were the ones arguing that the intent both of the Civil Rights Act of 1866 and of the Fourteenth Amendment had been to exclude from birthright citizenship the US-born children of aliens (at 720, 721). The position which it seems to me that you're putting forth was rejected by the majority of the justices. Or am I misunderstanding what you were saying? — Richwales (no relation to Jimbo) 06:12, 25 August 2015 (UTC)

The Court in this case said that the language in the CRA ("not subject to any foreign power") gave way to the language in the 14th Amdt ("subject to the Jurisdiction" of the U.S.). That this is true obviously cannot be denied by anyone. But the Court said the basic meaning of the two provisions is the same: "In the forefront, both of the fourteenth amendment of the constitution, and of the civil rights act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explcit and comprehensive terms." The only purpose for the new language in the Amendment was to remove doubts about the old language in the CRA, said the Court in this case. If we look at the old language in the CRA, I can see how it could cover someone who has a legitimate permanent residence in the United States, but it's very hard to see how it could cover someone who legally belongs in a foreign country. Maybe I'll take a look at the literature on this subject to see if this point is elaborated.Anythingyouwant (talk) 12:47, 25 August 2015 (UTC)

To your mind can be a lot of things, but that's original research. The case never discussed the matter, and as per Richwales, it doesn't seem to be something that something that they were thinking about. What I quoted is basically what the authors of the decision put as the holding.--Prosfilaes (talk) 22:14, 25 August 2015 (UTC)

I quoted the case: "In the forefront, both of the fourteenth amendment of the constitution, and of the civil rights act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explcit and comprehensive terms." So chances are the Court was thinking about what they wrote.  :-) Anyway, I checked books and articles on this subject, and while some of them do quote this same passage, they don't say much about it, so neither should we. Cheers.Anythingyouwant (talk) 22:17, 25 August 2015 (UTC)

VISA's and border restrictions didn't really exist until after WWI, so there was no concept of an "illegal immigrant". If you came to the US you could basically stay here, although if you weren't white you might never get citizenship.173.67.16.123 (talk) 22:34, 13 October 2016 (UTC)