Wong Kim Ark
- Thread starter Jarod
- Start date
I'm certain that is what they are saying.
I gave two options... Overturn or that its not the holding.
Which argument are they making?
United States v. Wong Kim Ark, 169 U.S. 649 (1898), is a landmark decision, the U.S. Supreme Court which held that "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", automatically became a U.S. citizen at birth. Wong Kim Ark was the first Supreme Court case to decide on the status of children born in the United States to alien parents.
en.wikipedia.org
United States v. Wong Kim Ark - Wikipedia
NiftyNiblick
1960s Chick Magnet
I'm not crazy about Wong Kim Ark.
You have to drown it in duck sauce to make it palatable..
Frankly, I'd strongly recommend Hon Sue Yoke as an alternative.
You have to drown it in duck sauce to make it palatable..
Frankly, I'd strongly recommend Hon Sue Yoke as an alternative.
Interesting. I think they believe that his parents were legal immigrants and therefore the "jurisdiction" clause as "jurisdiction" was understood at that time would apply to them, Wong Kim Ark would be a good ruling as folks that legally immigrate here and maintain a legal permanent residence here have allegiance to the place to which they have moved. Their argument seems to stem from the idea that folks that illegally enter cannot have a legal domicile and therefore hold no allegiance. I think they believe that the two arguments are separate ideas based on the legality of entry and the "allegiance".
So somehow by not being legal, they are not under our jurisdiction? That makes no sense. You can’t be illegal if you are not under the jurisdiction.
Considering that at that time Jurisdiction considered allegiance, as he explained why Native Americans would not gain citizenship he explained that those who hold no allegiance to the US because they hold allegiance to another therefore would not gain citizenship. This is how he "poo poo'd" the idea that this would grant Native Americans citizenship. It never did. Congress did using their powers to naturalize when they passed the Act in 1927.
They are going back to what they believe is the original intent of the Amendment, and applying it.
No some Native Americans literally were not under the jurisdiction of the US, not because of allegiance but because of our laws. If they lived on certain reservations they had their own laws, could not be prosecuted and did not pay taxes.
That system no longer exists in our nation. There are some vestiges left… but by and large they are now citizens and under US jurisdiction.
Whether it exists wouldn't matter now, all of them have citizenship because of the Native American Act in 1927. Congress has the authority to do that... It's in the Constitution.
So where does the persons allegiance come into play? How is that related to the 14th?
They are basing it on the Civil Rights Act of 1866 which the writer of the Amendment stated he referenced when coming up with the phrase and they believe provides the context, the Act stated that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed," are citizens. This language influenced the 14th Amendment’s wording, with "subject to the jurisdiction thereof" understood to mean owing full allegiance to the United States and not to a foreign government.
Why am I providing historical context and definitions on laws from the 1800s to someone who supposedly has a JD? Did you regularly not even try to research what the other side of a legal argument might say?
I haven’t researched or studied anything about the 14th in 30 years.
I think the writer would have chosen those words had he intended, instead I believed in the idea that America is about the rule of law over “blood and soil”. The concept that there is no historical “American” ancestry. Granted travel was not as easy as it is not so the idea of “tourism for citizenship” likely did not occur to them. I do believe if the framers intended a persons allegiance instead of a Governments jurisdiction, they would have chosen the person’s subjective allegiance over the governments legal jurisdiction.
Tobytone
Verified User
In 1898, the concept of an "illegal alien" as we understand it today did not exist. To understand jurisdiction in this context, consider the following scenario: A person enters a country illegally and, by necessity, avoids law enforcement. As a result, they cannot legally obtain a driver's license, secure employment, or engage in most activities without risking detection. Their presence and actions are, by definition, outside the legal framework.
Now, suppose this individual trespasses and destroys your private property. Can you sue them? If so, for what? You could potentially sue for trespass or property damage, but enforcing a judgment is problematic. If the individual owns property or assets in another country, such as Mexico, can authorities confiscate it to satisfy a judgment? U.S. courts lack jurisdiction over assets in a foreign country. As a private citizen, your recourse is zilch. While you can technically file a lawsuit, recovering damages is impossible if the individual has no assets or legal presence in your jurisdiction. Why?
Yet now you expect folks with far less legal education to explain the complexities of legal arguments in detail you would have been required to do during classes and what you would expect from any attorney if they were hearing a case you were involved in?
I think he told you what laws he referenced and put it in that context on purpose, and explained what he meant. I also think that the attorneys arguing this in front of SCOTUS will argue some of the very points I have written here. I also think that if you have enough originalists in the SCOTUS right now to overcome the "living document" folks you may even have them decide in favor of ending citizenship tourism and the idea that just making it here, regardless of legal status, before you squeeze out a kid makes a citizen.
If they choose to hear this, it isn't because it is as simple to rule as you pretend it is, it is because it is a complex issue that needs a ruling.
I do not believe a true origionalist would say that the clear meaning was not the clear meaning.
The very clear origin intent was to ensure those born here were citizens. Rule of law over “blood and soil”.
I do not believe you do not believe an originalist (or even an origionalist) wouldn't research the understood meaning of the time or what laws were referenced in its writing. I think you are now trying to do what you supposedly accused me of, produce a (what did you call it) "elementary" argument... no that wasn't it...
I believe you are mistaken about the understood meaning of the word “jurisdiction”.
Jurisdiction is a legal term with a clear meaning then and now, it never meant an individuals allegiance.
In fact the word Jurisdiction is used several times in the original constitution, not once is it even close to meaning allegiance.
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I believe that it is an argument they will make, and not once have I said what I believe other than to suggest that I believe that these are the arguments they will make and why they will make them. You believe that the historical context, the law he referenced in his explanations and his understanding of the word mean nothing, they do not.
I believe that if you get enough SCOTUS Justices that believe it is a contract and not a "living document" and believe that the intent is different than what you believe you may be surprised at the result.
Those are things that I believe. I have yet to chime in on how I would rule on this argument, mostly because I haven't heard the arguments yet and I am interested in what these folks have to say.
Oh, and I also believe that the SCOTUS has also not yet decided on this one... I'll bet they are also waiting to hear arguments.
It’s a HUGE stretch to imagine “jurisdiction” means allegiance. In any world…