It is ironic, and underlines how ridiculous birthright citizenship is, that almost every citizenship at birth that relies solely on the Wong Kim Ark misinterpretation of ‘born in the United States . . . subject to the jurisdiction thereof’ are children of illegal aliens. All other citizens at birth inherit U.S. citizenship from one or both parents; if the father by natural sanguinity, or if a U.S. citizen mother by statute removing the father’s nationality.


Here is a law school professor who got it right, very clearly stated, and properly citing the Slaughter-House cases and Elk vs Wilkins:* John Eastman, Henry Salvatori Professor of Law and Community Service, at Chapman University’s Fowler School of Law:

“Subject to the jurisdiction” means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else.” (See in the quote from Sen. Wade where he admits the Civil Rights Act’s ‘without allegiance to any foreign power’ settled the matter of which children born on U.S. soil were not granted citizenship.) New York Times UPDATED December 22, 2015 See also

However, the Wong Kim Ark majority opinion argued that the exceptions to ‘born in the United States’ citizenship were denied to ONLY three specific groups; and therefore the rest not exempt. That was faulty logic designed to achieve a predetermined outcome to the case. These judges wanted to change 108-years of jus sanguinis (inherited from father) legislated immigration and naturalization law into jus solis ‘place of birth.’

One example the court relied on was Native Americans born on U.S. soil, but allegiant to their sovereign tribal territories were exempt under the 14th Amendment from citizenship. That example, however, is not logical as ‘Native Americans not taxed’ were born to separate sovereignties and therefore not citizens. Even today, Native American lands operate under different laws and, like under the Torts Claims Act, determine if a U.S. citizen has jurisdiction to pursue any action against the tribe or a tribal member.

When the 14th Amendment was proposed and the ‘citizenship clause’ debated, one senator’s comment illustrates the confusion, even then, over what was the legal foundation for citizenship at birth:

“The ancient and indisputable citizenship rule of the British common law was the jus soli, under which a person’s nationality is determined by the place of his birth…. It is clear, of course, that the American colonies and the nation they ultimately established had accepted the precepts of the English common law, as part of the heritage from the mother country.” Cong. Globe, 39th Congress, 1st Sess. 1262 (1866) (Congressman Broomall)

Congressman Broomall was wrong. Why? First, even British law from 1351 to 1772 first recognized the rightful inheritance of leigance from the father, regardless of place of birth. This was an essential law during England’s colonial empire. Second, most states barred reliance on English ‘common law’ unless specifically codified. And, thirdly; the U.S. Constitution specified plenary power over Uniform Naturalization law to be the jurisdiction of Congress.

Wong Kim Ark cited U.S. naturalization statute from 1790 to 1855, but used its misinterpretation of the 14th Amendment to overturn over a century of statute. (In our time, this misinterpretation of ‘citizenship at birth’ was used to unconstitutionally ‘amend’ Article II’s ‘eligibility clause,’ allowing the son of a British citizen, a non-immigrant alien, to run for president.)

There were competing opinions, and in the end the Senate approved the ‘citizenship clause’ determining that the ‘citizenship clause’ of the 1866 Civil Rights Act defined it correctly:

Cong Globe 39th Congress 2768, 2769 Pres. pro tem Senator Wade (OH)”In the first section of the proposition of the committee, the word “citizen” is used. That is a term about which there has been a good deal of uncertainty in our Government. The courts have stumbled on the subject, and even here, at this session, that question has been up and it is still regarded by some as doubtful. I regard it as settled by the civil rights bill, and, indeed, in my judgment, it was settled before. . . The Senator from Maine suggests to me, in an undertone, that persons may be born in the United States and yet not be citizens of the United States.”* Elk v. Wilkins, 112 U.S. 94 (1884)

The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes ( 60 U. S. 73; Strauder v. West Virginia,@ 100 U. S. 303,100 U. S. 306. This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. (p. 111)

It is also worthy of remark that the language used about the same time by the very Congress which framed the Fourteenth Amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 14 Stat. 27; Rev.Stat. § 1992. (p. 103)

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