Birthright Citizenship Discussion

I left a comment on a video which summarized the Birthright Citizenship controversy and got a response from someone else that I thought was interesting enough to capture.

Actually, that was a pretty good summary. However, you left out two sort of important things. First, the 14th Amendment extents citizenship to "All persons born or naturalized in the United States, and subject to the jurisdiction thereof..." Second, the SCOTUS in Wong Kim Ark ruled that the phrase "subject to the jurisdiction thereof" included all native-born children except for those who were: (1) born to foreign rulers or diplomats, (2) born on foreign public ships, or (3) born to enemy forces engaged in hostile occupation of the country's territory.

It's that same phrase "subject to the jurisdiction thereof," that Trump and company are claiming excludes illegal immigrants and temporary visitors.  In a footnote in "Plyler v. Doe" in 1982 the court interpreted "Wong Kim Ark" as making "no plausible distinction...between legal and illegal resident aliens."

So the court would have to ignore or overturn two previous court opinions in order to declare that birthright citizenship doesn't apply to illegal immigrants. Of course the court may very well do that. I suspect that the idea that birthright citizenship extends to temporary visitors is on much shakier ground and I would be astounded if the court didn't rule that it doesn't apply to them.

This was the reply to my comment.

True the WKA did interpret subject to the jurisdiction to  include all except for those groups . However the court stated " so long as they are permitted by the US government to be here and that they had broken no laws here.

Elk v Wilkins was after WKA which showed allegiance is required to be subject to the jurisdiction. 

The slaughterhouse case excluded all children of foreigners from being subject to the jurisdiction of. 

Plyler v Doe was about jurisdiction within the territory of a state regarding equal protection (rights and privileges ) Nothing to do with citizenship like the other cases.

Then, my reply to the reply.

The quote from Wong refers to Wong's parents because at the time the Chinese exclusion act was still in effect.

The bottom line in Wong comes a little later:

"The fact, therefore, that acts of congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the constitution: 'All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.'"

Elk v. Wilkins was in 1884 so it was prior to Wong in 1898. It also addresses Native American citizenship questions which was a whole different can of worms in the 19th century.

The Slaughterhouse Cases provided a very narrow interpretation of the 14th Amendment's Equal Protection Clause which has effectively been overridden by the Court's adoption of the Incorporation Doctrine.

You're correct that Plyler is not about citizenship. However it references Wong and makes the observation that Wong did not differentiate between legal and illegal immigrants.