Commentary: Birthright Citizenship Is More Complicated Than It Sounds

OVERVIEW

The reason that my analysis is so lengthy and detailed is that I have been thinking about the Trump v. Barbara issue for at least 3 years. As such, making minor changes in this memo to explain the Court’s opinion was not that difficult. 

For all the drama on Trump v. Barbara and “birthright citizenship,” people were making this far too complicated. In fact, I was initially very underwhelmed by the briefs filed in Trump v. Barbara. Having the resources to do so, I was tempted to use some of my “legacy revenues” to hire Richie Bernstein who was Justice Scalia’s clerk and my father’s second wife’s son to file a Nowick Family Amicus Brief. However, the later briefs filed aligned with my views so I decided not to do so. 

The core issue was not the Executive Order per se which in my view was the usurpation of the power of Congress as Justice Kavanaugh noted in his concurrence. Saying that, I do not know how a test case would have been created otherwise. Rather, the rational for the Executive Order based on legal arguments dating back 30 plus years as to whether the current understanding as to who automatically was made a citizen at birth by being born within the US where the parents were not citizens at the time of birth is based on the 14th Amendment itself or by a Congressional statute adopted by Congress in the exercise of its enumerated powers to establish a floor above the minimum floor set by the 14th Amendment itself. 

Because of Afroyim v. Rusk, 387 U.S. 253 (1967) whoever is granted or made or automatically is a citizen because he or she was within a category of persons who were made citizens at birth on US soil cannot be stripped of the same save by voluntary action aka no retroactivity. The issue of persons who went through a traditional naturalization proceeding is a little different because if there is fraud in the procurement which requires a formal judicial proceeding with high standards of proof.

The real issue was whether Congress could change the law prospectively as to persons to be born where the parents are not citizens at the time the child is born in the United States and under what parameters. In my view the 6-3 Court majority got it right and Justice Gorsuch’s dissent agreed that temporary visitor’s – however defined and in fact in the Guidance neutered that exception were not protected – but children of long term “illegal; aliens” were protected which is the view of Professor Thomas Lee. [] As such, Gorsuch in fact is of the view that children born to long time illegal aliens are protected but Uscha Vance and Kamala Harris might not be. Justice Alito in his dissent did note the historical background but did not get into the “declaration of intent” theory that could have been made.

My views are somewhat closer to the Chief Justice’s rational than Justice Kavanaugh’s concurrence, and I think Justice Gorsuch dissent scorched the Government. Justice Kavanaugh invoked the doctrine of “Constitutional Avoidance” to give a roadmap to how Congress could act maybe. Justice Kavanaugh in his concurrence stated that Congress had statutorily taken the maximalist view articulated in United States v. Wong Kim Ark as to who were citizens at birth but could prospectively add exceptions akin to the 4 exceptions – whatever they were. 

However, Justice Kavanaugh overlooked the fact that the Guidance offered as to how the implementation of the Executive Order would work basically neutered the order save as to those unlawfully present. And, the “Foundling Provision” still exists and how that would play in is unclear. It would mean more abandoned babies, those kids still being citizens, and nothing being done to spur adoptions of those kids. In fact, Justice Gorsuch’s dissent disagreed with the main part of the Executive Order.

It was very clear that 5 Justices wanted to shut this entire debate down completely. The Chief Justice argued that the debates over the 14^th Amendment showed a Congressional intent accepted by the states that ratified the Amendment to naturalize and treat at birth everyone born on US Soil subject to depending on one’s views of 3 or 4 groups of newborns – groups that are miniscule today.  

Invoking the Spirit of America 250, the Chief Justice concluded:

“Citizenship, then and now, was the right to have rights— to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ Cong. Globe, 39^th Cong., 1st Sess., at 600 (Sen. Trumbull). We keep that promise today.”

The bottom line is that the Government did poor lawyering. The Trump Administration overall destroyed itself at the beginning with its arguments. It would have been better off noting that given the declaration of intent procedure at that time, only children of parents who intended to become citizens would have been protected by the 14^th Amendment itself automatically. However, that would have meant that LPR holders were not protected but others might be. That, would also raise additional questions and put Marco Rubio’s status at risk. And the issue of naturalizing children born on US Soil where no procedure exists now would be raised. It would also be an admission that its actions violated statutory rules. 

It is also clear that by injecting a “domicile requirement” – whatever that means and was never raised in the Wong Kim Ark litigation until at the opinion stage – domicile which no place appears in the 14^th Amendment save as to residence in a state.  In fact, as the Chief Justice noted “The principal dissent (but not the Government) at times seems to directly equate domicile and national citizenship.”

I also am not surprised by Justice Brown getting personal on Justice Thomas and vice-versa over who has embraced the Dred Scott decision.  What I had expected was for the Court to succinctly overrule parts of Dred Scott but to do so would require people to review each holding and reject the same which would expose ideological faultlines. I am also not surprised that everyone invoked President Lincoln for their position which shows the reverence that he is held in to this day.

As such, overall, given the tenor of the oral argument and the briefs, I am not shocked by the ruling, Moreover, judges are people first and have their own family situations. What people forget is that the Supreme Court today is made up of 4 women, 2 African Americans, 1 Jew, and 6 Catholics. Justice Gorsuch is the only mainline White Protestant Justice to sit on the Supreme Court since the retirement of John Paul Stevens in 2010. He and his two siblings were raised Catholic and attended weekly Mass. His wife, Louise, is British-born; the two met while Gorsuch was studying at Oxford. Justice Barrett has several adopted children who were born abroad.  Justice Barrett has kids, 2 of whom are adopted and are non-White and went through naturalization procedures. She did not want to put other families through that.

The US Supreme Court in essence is now the national version of the backgrounds of appellate court justices of such states as California, Connecticut, Maryland, Massachusetts, New Jersey, New Mexico, New York, Pennsylvania, and Rhode Island. These are states with very large late 19^th Century to this day large immigrant ancestry populations or non-white populations and the judges reflect that. It also reflects who is going to and graduating from Law School.

As a bonus [to paraphrase Willie Lewis Brown, Jr.] as we approach America 250 the Justices all took the opportunity to do a shout out to African Americans for the citizenship rights of all Americans. As I have often said, African Americans should and do take great pride in the sacrifices that those who came before them made that lead to the 13th, 14th, 15th, 19th and 26th Amendments so that this Nation under God would lead to a New Birth of Freedom. Simply put, we all stand on the shoulders of giants. In that vein, I am probably one of the few white life members of the National African American Gun Owners Association. 

Whenever I go into a sporting goods store and see someone of color filling out the paperwork, I thank them and point out that the rights we enjoy. They often look at me askance and I encourage them to google me and the LA Times and other articles popup. I then often have a selfie with the applicant and the counter clerk and I have them email it to me which in turn I will email to the various gun rights and hunting groups and ask why hasn’t the NRA plaque the cast of Glory?

MY FAMILY BACKGROUND

As this is the first time that I have actually posted an article for IVN I wanted to give some family background. I am the grandson and great grandson of immigrants. They all became American citizens as soon as they could, they all owned their own homes, on my mother’s side, her extended family served in the military in the Spanish American War, World War I [] World War II and Korea. Her two brothers – my uncles - served during World War II and Korea. 

On my father’s side, he, his brother, and at least one of my cousins served in the military. My ancestors set very high expectations for my parents and the rest of my family. My parents, particularly my mother aka Roz albeit a DLG [Daddy’s Little Girl] and heiress-lite that she was - set high expectations for my sister [Mrs. G of the DCBC courtesy of Roz] and I but particularly moi and impressed upon my sister and I how lucky we were to be American Citizens, what is now called American Exceptionalism [aka “Only in America”] as well as the importance of “giving back” via a hand-up – not a handout. []

My mother and all her friends in her Mah Jong set [which included non-Jewish women []] might be well off but they were very-very tough and were armed to the teeth. No one was making their kids into lampshades. There was no nuance on their views on America’s role in the World being part of the Greatest Generation. Their foreign policy was Harry Truman dropping the bomb.  

Growing up, given where I lived and who the parents were, every single father [and often mothers] served in the Military in some capacity. You could go into any professional office where the parents worked and see on the walls not just professional diplomas and licenses, but also pictures of the partners in uniform and honorable discharge certificates.

Had my mother not died when I was a freshman in college certain aspects of my life likely would have turned out differently. It is likely that I would do 2-4 years of military service as a junior officer after I graduated from college before I pursued a post graduate degree. The reason is that at period the military was desperate to coordinate with colleges to get recruits.

Growing up, albeit in very privileged circumstances on the North Shore of Long Island near but not on Long Island Sound, I heard all the stories about my family crossing the Atlantic, the chaos of Ellis Island and people passing through the naturalization process. Until the 1920s, assuming one was legally admitted into the country and was a White European, made the declaration of intent, and after a probationary period of a few years, was sworn in as a Citizen as soon as they could. 

As to the issue of citizenship at birth, on my grandmother’s wall of the house she owned was her framed citizenship certificate from 1915. I once asked her why she waited until after she naturalized in 1915 to start having children and her response was multi-faceted as my father was born in 1925. One, she wanted to make sure that her husband was “on program”. And, two, she wanted no questions as to her children being American Citizens at birth.  My mother’s father naturalized well before she or my uncles were born for the same reasons.

In early 2025 my S.O. Ms. Judith M. Garvey [] because we both have the resources to do so [RMD’s and otherwise] - wanted the option to travel abroad. Being “on program” I had to apply for a passport. I had not had a passport since 1975 when I did Kibbutz duty in Northern Israel where-in I lost 40 pounds. As part of that process because of Real I.D. I had my Birth Certificate. 

I made an appointment at the Yolo County Law Library in Woodland which in my view is the best law library in Northern California. I had my photos taken at the Triple A and went through the process.  I asked the law librarian as to how did the State Department know that I was a citizen and the answer was that they had Census and other records that went back to well before my great grand-parents naturalized which suggests that the documentary concerns some have voiced may be overblown at least as to persons born through the 4^th or 5^th generation naturalized in the last 125 years. 

Part of the problem that the Executive Order raised is that native-born citizens born to citizens absent a contested proceeding do not get a Citizenship Certificate – that must be changed so that is issued automatically along with the birth certificate. That is unlike persons born abroad who go through a naturalization proceeding who do get a certificate. 

BACKGROUND TO EXECUTIVE ORDER

WHY NOW AND WHAT THE E.O. PROPOSED

As noted above, certain elements of the Republican Party obtained the ear of President Trump [whose own family has issues []] which started this discussion though it likely would have occurred no matter what. Since the 1980’s certain conservative “legal scholars” have asserted that the Supreme Court’s decision in United States v. Wong Kim Ark, 169 U.S. 164 (1898) resulted in those who disagreed with that assertion on all spectrums to run to the Law Library to counter those arguments. President Reagan because of various factors was very pro-immigrant in essence squashed this effort.

The net result was this has been a 40 plus year dispute in the making. It has also led to an exponential increase in people obtaining birth certificates and passports, seeking naturalization as soon as possible – which is a good thing - the use of genealogy sites, and tv programs such as “Who do you think you are?” and “Finding your roots”. What this activity also resulted in Americans having to think through these issues in terms of their family and friends. Polling suggests that support for the broad view of citizenship at birth has increased exponentially because of this. 

While the legal commentators get into a dispute that centers on whether the United States adopted citizenship at birth by Jus Soli aka soil [aka born here with certain exceptions you are a citizen] vs. Jus Sanguinis [aka birth via parent(s) determine citizenship irrespective of where you were born you acquire the citizenship via your parents] it is not so cut and dried. US Citizenship law is sui generis aka a “one off” based on specific factors. It is the legal version of Rascal Flatts “God Bless the Broken Road that led me straight to you”. 

Great Britain which now follows a modified Jus Sanguinis, it was and is a hybrid too. The reason is that as English Citizenship was evolving, it was against the background of the development of a far-flung Empire where the motto was that “The sun never sets on the British Empire”. Citizenship rules were created by statute as issues arose. Because subject to International Law, Great Britian does not have a written Constitution Parliament can do a lot of things Congress cannot. As Justice Scalia noted in District of Columbia v. Heller, the existence of a written Constitution of necessity takes various policy choices off the table. 554 U.S. 570, 636 (2008)

The President’s Executive Order that started the litigation was not moving 100% to a Jus Sanguinis system but a modified system.  It was flawed internally and in fact went far beyond protecting LPR holders as evidenced by the implementation plan. 

The order stated the United States would not recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth. 

In terms of implementation, because of the litigation blocking the Executive Order there was no formal U.S. Citizenship and Immigration Services (USCIS) rules on this but it has prepared an internal policy plan for how to enforce the order if the litigation cleared. If you read the implementation plan, the order does not discuss the steps I listed below in terms of universal issuance at reduced costs of Certificates of Citizenship at birth. However, it did discuss creating a path for citizenship for those born here to non-citizens that does not exist now. Moreover, the UCISC implementation plan swept into the protected class basically everyone but certain narrow categories. It would change behavior in that more babies would be abandoned and naturalized under the Foundling Provision. And, it would put additional strains on the foster care system. []

The inclusion of LPR holders showed how ill thought out the Order is as they are NOT citizens. The whole basis for the Government’s argument and many of the Amicus Briefs was tied to “allegiance.” The inclusion of the children of Legal Permanent residents – a category that did not exist until the 1920s’- made no sense for inclusion as birthright citizenship in its truest sense is only tied to allegiance logically which, in turn, only applies to citizens and persons born to citizens as Judge Sorokin noted in Doe v. Trump, 766 F.Supp.3d 266, 283 (D. Mass. 2025) 

At the same time, under the Executive Order, if a parent is a US Citizen or someone who is considered a long term and legal resident where the other parent is a member of an invading army, their child would be a citizen which was likely contrary to the Common Law view at the time of the founding.  This was noted by Judge Boardman in CASA v. Trump, Inc. who stated that “This exception to citizenship by birth plainly does not apply to the children described in the Executive Order.” 763 F.Supp.3d 723, 741 fn. 5 (D. Md. 2025)

Given that the Executive Order was not retroactive while raising a series of issues it was itself ripe for legal challenge because it was totally contrary to what many had assumed was the law.  [] In fact, if the aim was to address Birther Toursim, the fact that the child would be a US citizen at birth. In fact, mother has every incentive to secretly leave the country. The child left behind would come under the foundling citizenship provision and likely would then be part of the foster care system and hopefully quickly adopted. [] What the parent did does increase the likelihood of deportability of the parent as the Supreme Court noted in United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957) but has no effect on the child. [] 

THE E.O. PROPOSED A MODIFIED VERSION OF THE POST 1983 BRITISH SYSTEM

As a policy matter, if writing on a clean slate without reference to the Constitution and current statutory regime, there are legitimate policy reasons for prior to starting families at least one parent is a citizen. My grand-mother’s choice was the right choice for my family. In speaking to my focus group – the women inside the Swing Space, I know at least 3 women who naturalized and then waited to start a family. 

To the extent that the E.O. had a policy focus, it was trying to move gradually to the British system in effect since 1983 which because it does not have a written Constitution it can do. Britain allows naturalization of children who are born to parents who are not citizens to be treated as citizens if they lived continuously in the UK for the 1^st 10 years of their life.

To be a British citizen if you were born in the UK, it depends on when you were born and your parents’ circumstances.

• If you were born before 1983, you are automatically a British citizen if you were born in the UK before 1 January 1983, unless:
• Your father was a diplomat working for a non-UK country.
• Your father was “an enemy alien in occupation” and you were born in the Channel Islands during World War 2

This is with the exception of Native Americans akin to what the United States held in Wong Kim Ark. 

• If you were born in the UK on or after 1 January 1983 when one of your parents was a British citizen or ‘settled’ [aka LPR status] in the UK you are automatically a citizen.
• You were born on or after 1 January 1983 you are a British Citizen if either exists:
• You’re under 18 and since your birth one of your parents became a British citizen, or got permission to stay in the UK permanently. That is a form of derivative naturalization that has existed in the United States since the founding.
• Born in the UK on or after January 1, 198B3 and before July 1, 2006:
• Both of your parents were not British citizens or settled in the UK or your father was a British citizen or settled in the UK and was not married to your mother; and 
• You must not have spent more than 90 days outside the UK in each of the first 10 years of your life.
• Born in the UK on or after July 1, 2006, and either exists:
• Automatically a British citizen if, when you were born, one of your parents was a British citizen or settled in the UK.
• When you were born, neither of your parents were British citizens or settled in the UK and not have spent more than 90 days outside the UK in each of the first 10 years of your life.

As such, the UK as to a child born to a non-citizen or LPR holder, the child becomes a British citizen either by living in the UK for the 1^st 10 years of one’s life or a parent naturalizes before you turn 18. As a result, you are in a sense derivatively naturalized. Britian because of the 1^st 10-year rule follows a modified form of the doctrine of Jus Sanguinis. []

Given the British example, for any change to play itself out per the Executive Order in 99.9 percent of the cases would take many years to implement which is what happened with the Real ID ACT. Real ID was not fully implemented until 2025 even though it was adopted in 2005. 

In terms of implementation, because of the litigation blocking the Executive Order there was no formal U.S. Citizenship and Immigration Services (USCIS) rules on this but it has prepared an internal policy plan for how to enforce the order if litigation cleared. If you read the implementation plan, the order does not discuss the steps I listed below in terms of universal issuance at reduced costs of Certificates of Citizenship, It also does not address the need for statutory changes to address the status of kids born to persons who are here under non-immigrant visas who adjust their status and become citizens in terms of their citizenship and how if it or could be acquired.

Adjustment of status is a process created by Congress in 8 U.S.C. § 1255 that allows eligible immigrants already present in the United States to apply for green cards without departing the country. The process has existed since 1960, when Congress expanded the modern adjustment of status framework to allow eligible immigrants already in the United States to complete the green card process domestically. This remains an important component of the U.S. immigration system, eliminating the need for many applicants to leave the country and seek permanent residence through U.S. consulates abroad. Each year, hundreds of thousands of immigrants become lawful permanent residents through this process. In fiscal year 2024 alone, nearly 783,000 individuals received green cards through adjustment of status. 

For more than six decades, adjustment of status has been a well-established feature of U.S. immigration law, routinely administered by Republican and Democratic administrations, and supported through congressional appropriations as the principal pathway for eligible applicants already in the United States to obtain lawful permanent residence. While Trump has proposed changing this somehow to require people to leave there was an immediate pushback and the Trump Administration is rethinking its position. 

I should add that Trump himself has made inconsistent comments on this issue suggesting he wants to create a pathway to citizenship for certain students. A recent report stated because of Trump’s comments and actions, international student enrollment had dipped 17%. Declining tuition spending translated to $1.1 billion in lost revenue for universities, and almost 23,000 fewer jobs.

International enrollees disproportionately pursue technical degrees, including in scientific, technology, engineering, and mathematics domains aka STEM. The President’s immigration policies have included a constriction of legal immigration pathways, too. It has enacted travel bans affecting dozens of countries, tightened refugee admission requirements, and rehauled the process by which many highly skilled foreign students can come to the U.S. for school, and eventually work. 

Last year, the administration ordered changes to the H-1B visa program, which allows companies to hire highly skilled and specialized workers. The overhaul required employers to shell out $100,000 for each application, up from around $5,000 previously. A federal judge struck down the order earlier this month, a decision the administration said it would appeal. Putting aside the merits of these changes, there is a policy against stateless children. 

WHAT THE CONSTITUTION AS INTERPRETED PRIOR TO 1857 DEFINED AS A CITIZEN

The issue of citizenship status of children has been an issue since the Founding. There were and are 5 categories of children whose Citizenship has been litigated since the Founding. 

The five categories are: 

• Category 1 consists of children born inside the United States to US Citizens.
• Category 2 consists of children born inside the United States who Congress under its collective power of Mass Naturalization naturalized.
• Category 3 consists of children born abroad to US Citizens.
•  Category 4 consists of children born outside the United States to non-citizens.
• Category 5 consists of children born on US soil to non-citizens who were never collectively naturalized explicitly by a Congressional statute.

As to Category 1, because of the Treaty of 1783 where Britain recognized American Independence while the US Supreme Court held that the date was for determination of citizenship was July 1, 1776, after the Revolutionary War, questions arose as to the property rights under the Treaty of 1783 as to “citizens” vs. “non-citizens”. In series of decisions by Chief Justice Marshall and Justice Joseph Story, the Supreme Court held that the pool of persons born on US soil prior to July 1, 1776 and who stayed here after the Treaty of Paris in 1783 or were born on US soil prior to the adoption of the Constitution whose parents were State Citizens or resided within the territory that Great Britain ceded to the United States and stayed here were made United State Citizens by operation of law at the time of the adoption of the Constitution in 1789.

In addition, from the Founding, as the United States Supreme Court has recognized that children born to US Citizens on US soil who were citizens at the time of giving birth were Citizens without any additional requirements or procedures. That is still the case today. This is pure Jus Sanguinis and Section 1 of the 14^th Amendment recognized or confirmed that fact. The cases so recognizing that legal fact include, but are not limited to: Inglis v. Trustees, 28 U.S. 99, 100-101 (1830), Shanks v. Dupont, 28 U.S. 242 (1830), United States v. Ritchie, 58 U.S. 525, 539 (1854), Dred Scott v. Sanford, 63 U.S. 393 (1857), The Slaughterhouse Cases, 83 U.S 36, 72-74 (1872), Minor v. Happersett, 88 U.S. 162, 167-169 (1874), Boyd v. Nebraska, 143 U.S. 135. 163 (1892).  

The significance of being in Category 1 beside automatic citizenship at birth, persons born on US soil to Citizens or who were collectively naturalized on US soil cannot not be stripped of their citizenship involuntarily. That second protection was the holding in 1967 in Afroyim, 

Afroyim noted that Chief Justice Marshall had long taken that view and one of the reasons that the 14th Amendment was to protect from Congressional action denaturalization of people who were made citizens by the 14th Amendment or who Congress had previously collectively naturalized or in future aka freed slaves and others. In terms of denaturalization proceedings, that involves situations where persons in an individual naturalization process made false statements to gain citizenship. While Congress has the power to enforce the 14th Amendment via Section 5 thereof, it cannot purport to interpret the same as the Supreme Court held 8-1 in City of Boerne v. Flores, 521 U.S. 507 (1997)

As to Category 2, Category 2 individuals are persons who might be in Category 5 but for the fact that Congress naturalized them when the US acquired territory via Treaty or the War Power, or decided to exercise jurisdiction over an area, or admitted an area as a state, or otherwise. This would include Blacks as a Class because of the 1866 Civil Rights Act, Native Americans, Foundlings, people residing in an area that the US acquired via treaty. Because this was mass naturalization via statute there was no individual naturalization proceeding. Large numbers of people were naturalized as part of a treaty or Congress passing a law saying congratulations, your group are now citizens.  This form of collective naturalization was approved of repeatedly by the Supreme Court. The significance of being in Category 2 like Category 1 is that these persons collectively naturalized cannot not be stripped of their citizenship involuntarily per Afroyim. []

As to Category 3, because being born in a foreign country, those children would be in an analogous situation to someone who was born in the US to a non-citizen. However, following English precedent, the 1^st Congress in 1790 collectively naturalized them at birth if their parents were US Citizens assuming certain conditions precedent and subsequent existed. Under the doctrine of “Contemporaneous Understanding” as elucidated by Chief Justice William Howard Taft – the 1^st Originalist – that a Congressional action when Framers of the Constitution where subsequently elected to Congress which enacted the statute was strong evidence of the validity of such legislation.

Since Day 1, via statute Congress has made clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to where the birth takes place.  This issue often comes up as to Presidential eligibility as to Republican candidate’s aka: Barry Goldwater [issue involved being born in Arizona pre-statehood but Arizona was incorporated territory – non issue because of Slaughterhouse Cases], George Romney [birth in Mexico to LFS Polygamists], John McCain [born in a hospital just outside Panama Canal Zone – non issue because of 1790 Act], Ted Cruz [birth in Canada - non issue because of 1790 Act] and Marco Rubio [born in Florida to LPR holders]. Cruz and Rubio when it affected them went all in on the maximalist Wong Kim Ark view in litigation.

In 1971 in Rogers v. Bellei,401 U.S. 815 (1971) the United States Supreme Court held that the 14^th Amendments protections did not apply to an individual who received an automatic congressional grant of citizenship at birth, but who was born outside the United States. That person could lose his or her citizenship for failure to fulfill any reasonable residence requirements which the United States Congress may impose as a condition subsequent to that birth abroad. Rogers further held that the 14^th Amendment’s grant of citizenship only applied to persons born within the United States and “incorporated: territories”. The statute under which Bellei was stripped of his citizenship was repealed by the U.S. Congress in 1978. Given Morales-Santana and the Government’s concession in Barbara, Category 3 is protected by Afroyim. 

As to Category 4, there has never been a dispute that children born outside the USA to non-citizens to become citizens have to go through a naturalization proceeding of some type.  In many cases, if the person is below a certain age when the parents naturalize, the child naturalized via derivative naturalization.

The real dispute is as to Category 5 which is the 14^th Amendment issue. The Constitution as originally adopted in 1789 contained no definition of United States citizenship. However, it referred to citizenship in general terms and in varying contexts: qualifications for members of the House; qualifications for Senators; eligibility for the office of President citizenship as affecting judicial power of the United States. And, vested Congress with the power to "establish a uniform Rule of Naturalization." 

The historical reviews suggest that the 1789 Constitution's lack of definitional specificity may well have been attributable in part to the desire to avoid entanglement in the then-existing controversy between concepts of state and national citizenship and with the difficult question of the status of slaves. That situation was changed by the 1866 Civil Rights Act, the adoption of the 14th Amendment, and the reenactment of the 1866 Civil Rights Act in 1870 after the 14th Amendment was ratified. As noted above, from the founding children of citizens born to Citizens on US soil were constitutionally US Citizens or who were collectively naturalized or who were born after the parent[s] went through a naturalization proceeding.

The first naturalization act, passed by Congress on March 26, 1790 (1 Stat. 103), provided that any free, white, adult alien, male or female, who had resided within the limits and jurisdiction of the United States for a period of 2 years was eligible for citizenship. Under the act, any individual who desired to become a citizen was to apply to “any common law court of record, in any one of the states wherein he shall have resided for the term of one year at least.” Citizenship was granted to those who proved to the court’s satisfaction that they were of good moral character and who took an oath of allegiance to the Constitution. Under the system established by the act, aliens could be naturalized not only in Federal courts, but also in State and local courts, and the children of successful applicants, if under 21 years of age, automatically became citizens.

The act of January 29, 1795 (1 Stat. 414) increased the period of residence required for citizenship from 2 to 5 years. It also required applicants to declare publicly their intention to become citizens of the United States and to renounce any allegiance to a foreign prince, potentate, state, or sovereignty 3 years before admission as citizens. Immigrants who had “borne any hereditary title, or been of the order of nobility” were also required to renounce that status. These actions could be taken before the supreme, superior, district, or circuit court of any State or Territory, or before a circuit or district court of the United States.

On April 14, 1802, Congress passed an act (2 Stat. 153) that directed the clerk of the court to record the entry of all aliens into the United States. The clerk collected information including the applicant’s name, birthplace, age, nation of allegiance, country of emigration, and place of intended settlement, and granted each applicant a certificate that could be exhibited to the court as evidence of time of arrival in the United States.

Certain doubts had arisen as to whether State and local courts were included within the description of U.S. district or circuit courts. The act of 1802 reaffirmed that every State and Territorial court was considered a district court within the meaning of the laws pertaining to naturalization, and that any persons naturalized in such courts were accorded the same rights and privileges as if they had been naturalized in a district or circuit court of the United States.

The act of 1802 was the last major piece of naturalization legislation during the 19th century. A number of minor revisions were introduced, but these merely altered or clarified details of evidence and certification without changing the basic nature of the admission procedure. The most important of these revisions occurred in 1855, when citizenship was automatically granted to alien wives of U.S. citizens (10 Stat. 604), and in 1870, when the naturalization process was opened to persons of African descent (16 Stat. 256).

Until the early 20th Century, the procedure began with the filing of a declaration of intention, which recorded the applicant’s oath to the clerk of the court that it was his or her bona fide intention to become a citizen of the United States, to reside permanently therein, and to renounce all allegiances to other nations. This could be filed as soon as one got off the boat or traveled by land into the United States. Within a period of 2 to 3 years after filing the declaration, the applicant could petition the court for citizenship, presenting at this time the affidavits of two witnesses with personal knowledge of the applicant, stating that the applicant had resided in the United States for the waiting period years and possessed a good moral character. In fact, the probationary period was reduced substantially for persons with military service. []

The petition then became the last step in the procedure, provided the judge found the findings and recommendation of naturalization officials favorable and satisfactory. If so, the applicant would take an oath of allegiance to the U.S. Constitution and laws and renounce all foreign allegiances, and the judge would issue an order of admission to citizenship and grant the applicant a certificate of citizenship. However, a judge could also order a continuance of the investigation or deny the petition, listing the reasons for the denial. A major change in this procedure occurred in 1952, when the filing of the declaration of intention was eliminated.

As such, while constitutionally prior to 1868 it appeared that as to the Constitutional floor, the United States only recognized citizenship at birth if one of the parents was a citizen. However, statutorily if a declaration of intent to naturalize was filed which included renunciation of foreign citizenship at that point the children were derivatively naturalized irrespective of place of birth. This was a form of citizenship in waiting. It is obvious that because of all of the briefs filed that the Justices or their clerks were doing their research and thinking about this issue. In fact, in oral argument in Trump v. Barbara Justice Alito who generally does his homework stated that those kids irrespective of place of birth were naturalized by operation of law when the parents naturalized or the declaration of intent was filed. [Transcript of oral argument at Page 109]. []

Excluded from the pool of citizens or expectant pool of citizens created in 1789 by the Constitution or statutes implementing Congressional powers were children of diplomats, a category of children born in areas controlled by an occupying force, slaves [more below] and members of Indian tribes who were viewed as foreigners though Congress could and did collectively naturalize them En Masse over time. The pool of citizens did include persons who were state citizens when the Constitution irrespective of race, creed, color, or sex. 

In addition, the Supreme Court in 1857 in Dred Scott v. Sanford, 63 U.S. 393 (1857) held that Free Blacks were not citizens even if they were state citizens at the time of the adoption of the constitution. It is very clear that this was historically inaccurate. Dred Scott was opaque on whether Congress under the power of collective naturalization could even naturalize Blacks though the court held – based on prior actions – that Native Americans could be made Citizens by Congressional action. In fact, Congress had made certain Native Americans Citizens as part of land cessions and had as part of treaties of annexation had allowed free persons irrespective of color to become citizens. While Congress allowed only Caucasians to go through an individual naturalization proceeding it did not inhibit collective naturalization. 

There were two Supreme Court cases in the ante-bellum period that addressed the status of the citizenship status of children born to non-citizens, The two cases were McCreery’s Lessee v. Somerville, 22 U.S. 354 (1824) and Levy v. McCartee, 31 U.S. 102 (1832)

McCreery v. Somerville concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were "native-born citizens of the United States.” As the Supreme Court noted in Wong Kim Ark, without such assumption the case would not have presented the question decided by the court, which, as stated by Justice Story in delivering the opinion, was "whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship, where none would exist by the common law, if the ancestor were a natural-born subject." McCreery was cited in Wong Kim Ark WITH APPROVAL.

Levy v. McCartee, 31 U.S. 102 (1832) concerned another property inheritance dispute, Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law. He stated by that law a child born in England of alien parents was a natural-born subject; quoting the statement of Lord Coke in Co. Lit. 8a, that "if an alien cometh into England and hath issue two sons, these two sons are indigence, subjects born, because they are born within the realm;" and saying that such a child "was a native-born subject, according to the principles of the common law, stated by this court in McCreery v. Somerville." 

In neither McCreery or Levy we do not know whether the parents had taken the steps to start the process of naturalization. We do know as Justice Alito observed that derivative citizenship has always existed but its most common form was to children born abroad to US Citizens and children born abroad to non-citizens who then naturalized in the USA. However, logically there is no difference as to derivative citizenship where the child is born in the USA to non-citizens where the parents then become citizens. In fact, that scenario was very common if not explicitly recognized in statute prior to 1866 because in essence the declaration of intent which is a form of Expatriation which is constitutionally protected acted as not being subject to a foreign power, it is in a sense a form of jus sanguinis. 

WHERE DRED SCOTT COMES IN

The core of the dispute as to children born within the United States to persons who are non-citizens arose from situations where the parents could not as a class be naturalized in an individual naturalization proceeding under the statutes in effect at that time, to wit non-whites. That is where Dred Scott v. Sanford comes in.  

THE HOLDING IN DRED SCOTT THAT AFRICAN AMERICANS AS A CLASS COULD NOT BE CITIZENS WAS WRONG. As Justice Curtis noted in his dissent, African Americans were at the time of the Founding in at least half of the colonies state citizens and became via operation of law US Citizens at the time of the adoption of the Constitution and their descendants were citizens via jus sanguinis. Moreover, via treaties African Americans were collectively naturalized En Masse as even Dred Scott held was a power of Congress.  

Because Dred Scott deservedly is held is such disrepute, no one talks about the actual multiple holding[s] in Dred Scott which was litigated as a diversity case – not a federal question case.  

Dred Scott was born in 1799 in Virginia as a slave. He passed from owner to owner and at one point he was taken to an army post in Minnesota. While parts of Minnesota were encompassed within the Northwest Territory where slavery was banned under the Northwest Ordinance which Congress under the its powers under the Territories Clause [US Constitution Art. IV § 3, cl. 2] prohibited via legislation enacted in the 1^st Congress. The Army post where Scott was held as a slave was part of the Louisiana Purchase and was north of the line where slavery was banned by the Missouri Compromise. The Missouri Compromise line was repealed by the 1854 Kansas-Nebraska Act.

Scott eventually sued for his freedom and the case reached the United States Supreme Court. The Scott case raised two issues. First, did Scott have standing to invoke diversity jurisdiction under Article III of the Constitution. Section 2 of Article III provides for federal “judicial power” to hear “Controversies . . .between Citizens of different States” and between State Citizens and “foreign States, Citizens or Subjects” —the so-called citizenship and alienage diversity jurisdiction?   The Court held 7-2 that Scott could not invoke diversity as African Americans as a class were not citizens for purpose of Section 2 of Article IIII. Nor, were they “aliens” because alienage assumed voluntarily being within the United States and there was no history that anyone of that race came to the United States voluntarily.  60 U.S. at 411.

In addition, Dred Scott held that because Black persons were not US Citizens, they were not among the “Citizens of each State” entitled to non-discrimination against out-of-state citizens under Article IV, Section 2 [the Comity Clause], just as they were not state citizens under Article III, Section 2 entitled to sue in federal court under the diversity jurisdiction. 

Given many Northern States had “Negro Exclusion” exclusion laws, the ruling on the Comity Clause. Rather, what set people off was the holding that the Missouri Compromise was invalid and the implication thereof that because of the “Right of Transit” Slavery could become National. The main basis for this conclusion was that Africans had never voluntarily came to this country and Congress prohibited their naturalization in a normal naturalization proceeding.

Dred Scott actually encompassed numerous holdings some of which are still good law and others are not. The holdings in Dred Scott were as follows:

Holding 1 of Dred Scott was that “the People” and “Citizens” were synonymous terms. That holding has not been overruled.  

Holding 2 of Dred Scott was that after the Constitution was adopted only Congress could via various procedures naturalize someone. That holding has not been overruled

Holding 3 of Dred Scott was that the pool of citizens at the time of the founding were those who were citizens of the 13 Colonies and the lands ceded by Great Britain to the new nation by the Treaty of 1783. This was acknowledged in a series of cases decided well before Dred Scott v. Sanford, See: e.g.: United States v. Ritchie, 58 U.S. 525, 539 (1854); Inglis v. Trustees, 28 U.S. 99, 100-101 (1830), Shanks v. Dupont, 28 U.S. 242 (1830). This was reaffirmed in Boyd v. Nebraska, 143 U.S. 135. 163 (1892).  

Holding 4 of Dred Scott was that even though there were free African Americans in at least 5 of the 13 Colonies which became states who had full citizenship rights therein [and many served in the Continental Army as Ken Burn’s recent documentary pointed out] they were not made US Citizens by operation of law by the Constitution when adopted. Justice Curtis in his Dred Scott dissent demolished this argument.  This was clearly overruled by the 1866 Civil Rights Act and the 14^th Amendment. 

In fact, as to the Missouri Compromise which was declared invalid in Dred Scott, there were two Missouri Compromises. The 2^nd Missouri Compromise arose because of a clause in Missouri's new constitution, written in 1820, which required the exclusion of "free negroes and mulattoes" from the state. The act of admission stated that the exclusionary clause of the Missouri constitution should "never be construed to authorize the passage of any law" impairing the privileges and immunities of any U.S. citizen. If African Americans were not citizens, why was this provision needed. The answer was that it was needed because of the Comity Clause.

As noted above, the rational for the position that Blacks as a class could not be citizens is that Chief Justice Taney accurately stated that Congress in the first Naturalization Act only allowed whites to naturalize [hints of the dissent in United States v. Wong Kim Ark, 169 U.S. 64 (1898)]. However, this had no effect on what occurred prior to the actual enactment of the Constitution and in effect was recognized by the same as Justice Curtis noted in his dissent.  And, it would in effect void ab initio collective naturalization that had naturalized African Americans in various circumstances by Treaties and other Congressional actions.  In fact, at the time of the adoption of the 1866 Civil Rights Act and the 14^th Amendments, only whites could naturalize in a naturalization proceeding. Blacks could not be naturalized in an individual naturalization proceeding until 1870. 

These anomalies are not unique in American law. Since the Founding foreign born citizens who are naturalized cannot become President or Vice President but can vote in the elections to decide who is President or Vice President. Similarly, persons 18 years or older who cannot serve as President or as Senators or as House Members because of age cannot themselves hold these offices until they reach a minimum age can vote in elections to select these representatives. In terms of slaves themselves, the Constitution as adopted in 1789 allowed for the Slave Trade for 20 years and prohibited Congressional interference in the same until 1808 though imported slaves could be the subject of import taxes. The effect of this was that all slaves brought in before 1808 and their offspring were treated as legal property and not contraband.

Holding 5 of Dred Scott was the observation that the Comity Clause in the Constitution which protects against interstate discrimination against “citizens” only applies to protect United States Citizens. That is still good law. Non-citizens are now protected by the Equal Protection Clause.

Holding 6 of Dred Scott was that despite the history of the Northwest Ordinance, Congress had no power under the Territories Clause to adopt the Missouri Compromise line. This was totally contrary to the universal view at that time as articulated by Chief Justice Marshall’s opinion in American Insurance Company v. Canter, 26 U.S. 511 (1828)

Holding 7 of Dred Scott was that the United States pursuant to the Treaty or War Clauses of the Constitution could not acquire lands to be ruled as de-facto Colonies. While that may make critics of the Insular Cases [] happy, as of today the Insular Cases are still binding precedent.

Holding 8 of Dred Scott was an assertion or admission that Congress apart from an individual naturalization proceeding could via statute or treaty naturalize En Masse persons. That clearly included Indians [which Congress did piecemeal En Masse prior to 1924] and anyone else apart from maybe slaves. The specific quote as to non-whites is:  

“Now, the Constitution does not limit the power of Congress in this respect to white persons. And they may, if they think proper, authorize the naturalization of any one, of any color, who was born under allegiance to another Government. But the language of the law above quoted, shows that citizenship at that time was perfectly understood to be confined to the white race; and that they alone constituted the sovereignty in the Government.

“Congress might, as we before said, have authorized the naturalization of Indians, because they were aliens and foreigners. But, in their then untutored and savage state, no one would have thought of admitting them as citizens in a civilized community. And, moreover, the atrocities they had but recently committed, when they were the allies of Great Britain in the Revolutionary war, were yet fresh in the recollection of the people of the United States, and they were even then guarding themselves against the threatened renewal of Indian hostilities. No one supposed then that any Indian would ask for, or was capable of enjoying, the privileges of an American citizen, and the word white was not used with any particular reference to them.” 60 U.S. at 419-420.

Given Holding 8, the assertion Blacks could not be citizens is NONSENSE. The fact is that Congress through other enumerated powers had collectively naturalized various African Americans in treaties and statutes.  Collective naturalization has occurred from the very beginning of the Republic as Chief Justice Marshall noted in American Insurance Co. v. 356 Bales of Cotton, 26 U.S. 511, 542-544 (1828).  In fact, in Elk v. Wilkins, 112 U.S. 94 (1884) the Court noted that pursuant to its Indian Commerce Clause and Territorial Powers Congress had naturalized En Masse various members of Indian Tribes and had the power to do so. This was in fact a power that Congress exercised in 1924 across the board. Elk v. Wilkins was an attempt by an individual to self-naturalize which has never been allowed. Elk used certain language in Dred Scott (56 U.S. at 420) to make that argument. 

Dred Scott was rightfully condemned at the time.  In Taney’s home state of Maryland, there are about 75,000 to 80,000 free blacks. When the state legislature proposed a new set of draconian black laws that would either remove them or re-enslave them, people organized, gathered petitions, went to Annapolis as part of an effort that ultimately defeated the legislation. 

THE 1866 CIVIL RIGHTS ACT AS A RESONSE TO DRED SCOTT

While during the Civil War Attorney General Bates argued that Dred Scott was wrongly decided and African Americans could be citizens, others were not so sure what Dred Scott allowed or did not allow as to Congressional action.

At the time the Civil War ended, between the Emancipation Proclamation and the adoption of the 13^th Amendment, 4 million slaves were emancipated. That included 500,000 emancipated by the 13^th Amendment and 3.5 million by the Emancipation Proclamation.  There were probably another 500,000 free Blacks. That represented in excess of 12% of the population within the United States. While some have asserted that mass deportation was not constitutionally allowed, given that deportation procedures existed at the Founding and in fact was the remedy for people brought into the US in violation of the 1808 Clause mass removal was an option.

Given what I have read about President Lincoln’s position, he evolved from mass deportation to selective naturalization – specifically as to pre-existing free Northern Blacks who met literacy requirements and Blacks who served in the military and were honorably discharged. In fact, he was recorded as saying he would not return to slavery or deport no matter the political cost persons who he referred to as the Black Warriors of Olustee and Port Hudson. 

Then and now, it is a truism there are two ways that Americans accept marginalized groups into its society and overcome prejudice: (i) the playing field; and (ii) the battlefield.  Americans love their athletes who prove their worth and they love their military members.  During the Civil War, Frederick Douglass used his stature as the most prominent African American abolitionist to recruit men of his race to volunteer for the Union army. He did that at Lincoln’s urging as the Union Army needed soldiers and the expectation would be that for their services. they would be made citizens. That is also why Lincoln encouraged immigration and there was expedited naturalization of soldiers and sailors.

Without Jackie Robinson and the Tuskegee Airman there would not have been a successful Civil Rights movement.  Similarly, the horrific treatment of Japanese Americans during WWII would have not been compensated but for the 442nd Regimental Combat Team’s exploits in WWII as documented in the movie Go For Broke. In terms of my own family, my mother was agnostic about JFK until she saw an episode of Navy Log about PT 109. After that, he was “Our Jack the Mensch”. The list goes on and on.  That is why many movies [produced and written by people of my faith] end with stirring calls to the hearts of Americans:

• Red Tails: “We were not assigned, we were requested.”
• Action in the North Atlantic: “That isn’t a miracle. Its American Seamanship”.
• Crash Dive: “That’s the Navy, the United States Navy”. 
• Yankee Doodle Dandy – half the movie.
• An American Romance or The American Miracle: “If Pop was willing to take a chance on America, then America was willing to take a chance on Pop.”
• Sergeant York: Various lines in the ending of the movie.

After a substantial lapse of time, because of Steven Spielberg and Tom Hanks leadership we are seeing a comeback of these historical movies, i.e. Saving Private Ryan, Band of Brothers, The Pacific, Windtalkers, Hacksaw Ridge, 42, Sarah’s Oil, The Six Triple Eight, Lucky Strike, Greyhound. Judith and I just saw Pressure which is about D-Day and we will see Young Washington. 

In any event, Andrew Johnson – being a white Southerner – wanted slavery and slaves gone. What we do know is that there were millions of people whose legal status was in flux.  At that point, Congress without Lincoln’s guidance had the issue as to what to do about these people and it had ZERO respect for Andrew Johnson.  

While the 13^th Amendment ended human slavery [and subsequently Section 4 of the 14^th Amendment barred retroactive compensation for what was clearly a “taking”] the status of the African Americans was a live issue. Congress had to act. All we know is what Congress did or thought it was doing in 1866 and 1868. As the United States Supreme Court noted in 1906 as to the status of the freed slaves:

“One thing more: at the close of the Civil War, when the problem of the emancipated slaves was before the nation, it might have left them in a condition of alienage, or established them as wards of the government, like the Indian tribes, and thus retained for the nation jurisdiction over them, or it might, as it did, give them citizenship. It chose the latter. By the 14th Amendment it made citizens of all born within the limits of the United States and subject to its jurisdiction. By the 15th it prohibited any state from denying the right of suffrage on account of race, color, or previous condition of servitude, and by the 13th it forbade slavery or involuntary servitude anywhere within the limits of the land. Whether this was or was not the wiser way to deal with the great problem is not a matter for the courts to consider. It is for us to accept the decision, which declined to constitute them wards of the nation or leave them in a condition of alienage where they would be subject to the jurisdiction of Congress, but gave them citizenship, doubtless believing that thereby in the long run their best interests would be subserved, they taking their chances with other citizens in the states where they should make their homes.” Hodges v. United States, 203 U.S. 1, 19 (1906)

Hodges in so far as its limited Congress's Thirteenth Amendment enforcement power was in effect overruled in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) by giving Congress relatively wide latitude both to determine what qualifies as a badge or incident of slavery and how to legislate against it. See, e.g.: United States v. Hatch, 722 F.3d 1193 (10^th Cir. 2013) [Extensive discussion]. 

In any event, Congress using what it thought to be its 13^th Amendment enforcement power under Section 2 of the 13^th Amendment as part of the Civil Rights Act of 1866 – passed over a Presidential Veto - addressed the status of freed slaves and previously free Blacks.  The actual text of Section 1 of the 1866 Civil Rights Act stated:

‘Be it enacted . . . , That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

The 1866 Act was clearly collective naturalization which Congress could do under various powers of the Constitution. Given that Blacks were stateless under Dred Scott they were not subject to a foreign power and Native Americans where really at that point wards of the Government as Hodges noted so but for “Indians not taxed” they would have been naturalized en masse as that is what occurred in 1924.

During the debate on the 1866 Civil Rights Act, everyone agreed it would collectively naturalize African Americans as a class - those living and those yet to be born within the United States even though Blacks could not naturalize in an individual naturalization proceeding at that time. That was addressed in 1870. 

One of the issues as to the 1866 Act was whether besides African Americans, who else were being naturalized collectively. The debates suggest that while the 1866 Civil Rights Act which was initially about the naturalization of African Americans it veered into the issue of children of people born here to people who were born abroad. Given the Right of Expatriation and the declaration of intent-renunciation procedure which could occur just off the boat, assuming that the parents as a class where not barred from naturalizing, the parents and hence their children were not subject to any foreign power that conferred automatic citizenship at birth. 

There is no doubt therefore that under the naturalization procedures in effect during the 1860’s of which Congress was aware of, because of the declaration of intent process which required the applicant to renounce any allegiance to a foreign prince, potentate, state, or sovereignty, that absent the debate as to Gypsies, Chinese, etc., on the 1866 Act, that the Members of Congress were collectively naturalizing or affirming the citizenship of children of persons who had renounced foreign allegiance and made the declaration of intention and who could naturalize in a naturalization proceeding.. 

Naturalizing En Masse the children of those who could naturalize in the 1866 Civil Rights Act is an example of MEMBER PROTECTION because of broader issue related to racial sensitivities. As I have often said, African Americans should and do take great pride in the sacrifices that those who came before them made that lead to the 13^th, 14^th, 15^th, 19^th and 26^th Amendments so that this Nation under God would lead to a New Birth of Freedom. Simply put, we all stand on the shoulders of giants.

Moreover, save for the debate as to the legislation naturalizing the children of those who could not naturalize, the assumption [which would be the equivalent of persons admitted on immigrant visas and who under the declaration of intent procedure could vote] would be somewhat consistent with some of the views supporting the Executive Order. What is very clear is that Republicans were very concerned over political attacks over the elevation of Black Citizenship rights over the native-born children of white immigrants. The parent - having filed the Declaration of Intent - were themselves certain to be naturalized and ergo voters.  And, if those persons were naturalized, their children irrespective of place of birth were likely derivatively naturalized when the parents naturalized arguably retroactive to the date of birth.

The language of the initial 1866 legislation pre amendment could have denaturalized or put into question the status of the children of recent Irish and German immigrants born in the United States who had filed the declaration of intention. Under the rubric of Member Protection, it appears that a decision was made by Lyman Trumbell and Charles Sumner to “naturalize everyone” including the children of immigrants born here to deflect from attacks of favoritism of Blacks over the children of Irish or German. As such, in many ways it was because of African Americans that we have the citizenship system and voting rights system we have today.

The issue of children who were born to at least one Chinese parent also came up and the intent was to naturalize them clearly even though their parents could not naturalize – which also true for Africans until 1870.  At the time of the adoption of the 1866 Civil Rights Act while there was some Chinese immigration to the United States, it was overwhelmingly male.  To the extent that there were marriages, it was primarily Chinese-white interracial marriage in the United States. Single Chinese women were not allowed to immigrate often because of the stigma that these women were prostitutes. The 1875 Page Act was drafted in such a manner so as to bar their entry into the United States. 

In fact, the 1870 Census showed while there were 65,000 Chinese admitted into the United States, there were only 5,000 females in this category, and less than 500 children born here to Chinese nationals. However, it is very clear from the history of the 1866 Act that those 500 +/- children were collectively naturalized at birth. Moreover, Chinese even after the Exclusion Acts were collectively naturalized in various situations, one example being Hawaii. There was a sizeable Chinese population in Hawaii prior to the 1898 Annexation agreement. The Treaty of Annexation included a provision for collective naturalization by choice which was carried over into the 1900 Hawaii Organic Act which “incorporated” Hawaii as a US Territory. Because of that Act, Attorney Generals Griggs and Knox both opined in 1901 that a person of Chinese ancestry who on Aug. 12, 1898, were citizens of the Republic of Hawaii, became citizens of the United States by virtue of the Organic Act.

In fact, in his veto message of the 1866 Act Andrew Johnson raised the question as to why the naturalization of children of foreign born was needed if current law addressed that. 

Because of concerns as to Congressional power to collectively naturalize people under the 1866 Civil Rights Act and for other reasons, Section 1 of the 14th Amendment was adopted. Section 1 of the 14^th Amendment provided that 

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The 14^th Amendment reads much differently than the 1866 Civil Rights Act. As Justice Kavanaugh noted at oral argument, had the 14^th Amendment read the same as the 1866 Civil Rights Act, while Congress would have had to retain the Declaration of Intent procedure and would have had to adopt a procedure to naturalize children born her to non-citizens [a procedure that exists as to Children of diplomats] the parameters of who was protected by the 14^th Amendment initially would be much clearer. It is clear that the 14^th Amendment recognized that the children of citizens were citizens and it retroactively naturalized and made Citizens whoever Congress had done so by the Civil Rights Act of 1866 or otherwise or where it would subsequently choose to make citizens. They were per Afroyim protected from involuntary denaturalization. 

However, given the disparate language between 1866 Civil Rights Act and the 14^th Amendment, the question is whether the 14^th Amendment made the 1866 Civil Rights Act the Constitutional Standard for citizenship and locked in the criteria who was a citizen at birth under whatever criteria the 1866 Civil Rights Act created. If it did, given the Congressional debates in the Senate, it is game over in terms of future legislative action. If on the other hand, the 14^th Amendment simply treated as citizens children born to citizens on US soil and protected those granted citizenship [however obtained] from denaturalization, then there maybe space for Congress to act prospectively.    

Most of the discussions as to the 14^th Amendment’s citizenship clause turn on the meaning of “subject to jurisdiction” and what does that mean? The term “jurisdiction” is used in various portions of the Constitution as to Court jurisdiction and the 13^th Amendment barring slavery and involuntary servitude, and in the Equal Protection Clause of the 14^th Amendment and has different meanings depending on the context. 

The “subject to jurisdiction” language in the citizenship clause in the 14^th Amendment clearly excludes persons born to persons where both have diplomatic immunity. It also likely means children born to a parent of invading army born in an area under that army’s occupation and thus temporarily outside the United States given previous US Supreme Court decisions. Under the Executive Order if one of the parents was a US Citizen that child would be a US Citizen. And, it would have included enrolled members of an Indian tribe not paying taxes. The term “Indians not taxed” is not in Section 1 but Section 4 of the 1th Amendment. 

Professor Thomas H. Lee at Fordham Law School has extensively written on this issue. He argues that the 14^th Amendment would automatically recognize the naturalization at birth the children of long time “illegal aliens” but Congress could prohibit citizenship for kids of “temporary sojourners” – whatever that means.  Other professors argue that because “illegal aliens” are here without consent they are not protected by the 14th Amendment but children of persons here legally other than persons born to true tourists are protected. 

POST RATIFICATION LITIGATION SINCE 1868

The Supreme Court post ratification of the 14^th Amendment discussed the 14^th Amendment in 5 cases in the 1800’s.

In the Slaughterhouse Cases – a 5-4- opinion that in essence gutted the “Privileges or Immunities Clause” of the 14^th Amendment though that Clause is making a comeback because of Justice Thomas and a host of scholars including the Brothers Amar – one of whom is a Professor at UC Davis School of Law, Justice Miller stated:

“The first section of the fourteenth article to which our attention is more specially invited opens with a definition of citizenship -- not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. 

“Whether this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled, and if was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen were still not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.

“To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

“The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

“The next observation is more important in view of the arguments of counsel in the present case. It is that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.

“Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.” 83 U.S 36, 72-74 (1872)

Subsequently in Minor v. Happerset which involved female voting rights prior to the adoption of the 19^th Amendment, the Court stated:

“There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof’ are expressly declared to be ‘citizens of the United States and of the State wherein they reside.’ But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.

“For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose, the words ‘subject,’ ‘inhabitant,’ and ‘citizen’ have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more.

“To determine, then, who were citizens of the United States before the adoption of the amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterwards admitted to membership.

“Looking at the Constitution itself we find that it was ordained and established by ‘the people of the United States,’ and then going further back, we find that these were the people of the several States that had before dissolved the political bands which connected them with Great Britain, and assumed a separate and equal station among the powers of the earth, and that had by Articles of Confederation and Perpetual Union, in which they took the name of "the United States of America," entered into a firm league of friendship with each other for their common defence, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.

“Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen — a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.

“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,’ and that Congress shall have power ‘to establish a uniform rule of naturalization’ Thus new citizens may be born or they may be created by naturalization.

“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words ‘all children’ are certainly as comprehensive, when used in this connection, as ‘all persons,’ and if females are included in the last, they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea.

“Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided ‘that any alien, being a free white person,’ might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens.  These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since. In 1855, however, the last provision was somewhat extended, and all persons theretofore born or thereafter to be born out of the limits of the jurisdiction of the United States, whose fathers were, or should be at the time of their birth, citizens of the United States, were declared to be citizens also. 

“As early as 1804 it was enacted by Congress that when any alien who had declared his intention to become a citizen in the manner provided by law died before he was actually naturalized, his widow and children should be considered as citizens of the United States, and entitled to all rights and privileges as such upon taking the necessary oath; and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or who should be married to a citizen of the United States, should be deemed and taken to be a citizen.

“From this it is apparent that from the commencement of the legislation upon this subject alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth.

“But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country. Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist the case must be dismissed. Notwithstanding this the records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women, and not one can be found, we think, in which objection was made on that account. Certainly none can be found in which it has been held that women could not sue or be sued in the courts of the United States. Again, at the time of the adoption of the Constitution, in many of the States (and in some probably now) aliens could not inherit or transmit inheritance. There are a multitude of cases to be found in which the question has been presented whether a woman was or was not an alien, and as such capable or incapable of inheritance, but in no one has it been insisted that she was not a citizen because she was a woman. On the contrary, her right to citizenship has been in all cases assumed. The only question has been whether, in the particular case under consideration, she had availed herself of the right.” 88 U.S. 162. 165-170 (1875)

In Elk v. Wilkins, 112 U.S. 94 (1884) Elk argued that he in effect self-naturalized by leaving the tribe and becoming an Indian taxed. The Court rejected that argument because as Dred Scott noted since 1791 no one had the power to self-naturalize. The Court did note that pursuant to its Indian Commerce Clause and Territorial Powers Congress had naturalized En Masse various members of Indian Tribes and had the power to do so. This was in fact a power that Congress exercised in 1924 across the board.

In Boyd, the Collective Naturalization case the Court recounted the longstanding history on this issue and stated:

“Naturalization is the act of adopting a foreigner, and clothing him with the privileges of a native citizen, and relator's position is that such adoption has neither been sought nor obtained by respondent under the acts of Congress in that behalf.

“Congress in the exercise of the power to establish an uniform rule of naturalization has enacted general laws under which individuals may be naturalized, but the instances of collective naturalization by treaty or by statute are numerous.

“Thus, although Indians are not members of the political sovereignty, many classes of them have been made citizens in that way. Elk v. Wilkins, 112 U.S. 94. By the treaty of September 27, 1830, provision was made for such heads of families of the Choctaws as desired it, to remain and become citizens of the United States. 7 Stat. 335. By the treaty of December 29, 1835, such individuals and families of the Cherokees as were averse to a removal west of the Mississippi and desirous to become citizens of the States where they resided were allowed to do so. Ibid. 483. By the act of Congress of March 3, 1843, it was provided that on the completion of certain arrangements for the partition of the lands of the tribe among its members, ‘the said Stockbridge tribe of Indians, and each and every of them, shall then be deemed to be, and from that time forth are hereby declared to be, citizens of the United States, to all intents and purposes, and shall be entitled to all the rights, privileges and immunities of such citizens.’ 5 Stat. 47, c. 101, § 7. And such was the act of March 3, 1839, 5 Stat. c. 83, pp. 349, 351, relating to the Brothertown Indians of Wisconsin.

“The act of Congress approved February 8, 1887, 24 Stat. 388, c. 119, was much broader, and by its terms made every Indian situated as therein referred to, a citizen of the United States.

“Manifestly the nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise as may be provided.

“All white persons or persons of European descent who were born in any of the colonies, or resided or had been adopted there, before 1776, and had adhered to the cause of independence up to July 4, 1776, were by the declaration invested with the privileges of citizenship. United States v. Ritchie, 17 How. 525, 239; Inglis v. Trustees of Sailors' Snug Harbor, 3 Pet. 99. In McIlvaine v. Coxe's Lessee, 4 Cranch, 209, it was held that Mr. Coxe had lost the right of election by remaining in New Jersey after she had declared herself a State, and had passed laws pronouncing him to be a member of the new government; but the right itself was not denied. Shanks v. Dupont, 3 Pet. 242.

“Under the second article of Jay's treaty (8 Stat. 116, 117), British subjects who resided at Detroit before and at the time of the evacuation of the Territory of Michigan, and who continued to reside there afterwards without at any time prior to the expiration of one year from such evacuation declaring their intention of becoming British subjects, became ipso facto to all intents and purposes American citizens. Crane v. Reeder, 25 Michigan, 303.

“By section three of Article IV of the Constitution, ‘new States may be admitted by the Congress into this Union.’ The section, as originally reported by the committee of detail, contained the language: ‘If the admission be consented to, the new State shall be admitted on the same terms as the original ones. But the legislature may make conditions with the new States concerning the public debt which shall be then subsisting.’ These clauses were stricken out, in spite of strenuous opposition, upon the view that wide latitude ought to be given to the Congress, and the denial of any attempt to impede the growth of the western country. Madison Papers, 5 Elliot, 381, 492, 493; 3 Gilpin, 1456.

‘And paragraph two was added, that ‘the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.’

“By article three of the treaty of Paris of 1803, (8 Stat. 200, 202,) it was provided that ‘the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess.’

“It was said by Mr. Justice Catron, in his separate opinion in Dred Scott v. Sandford, 19 How. 393, 525: ‘The settled doctrine in the state courts of Louisiana is, that a French subject coming to the Orleans territory, after the treaty of 1803 was made, and before Louisiana was admitted into the Union, and being an inhabitant at the time of the admission, became a citizen of the United States by that act; that he was one of the inhabitants contemplated by the third article of the treaty, which referred to all the inhabitants embraced within the new State on its admission. That this is the true construction I have no doubt.’ "  143 U.S. at 162-164

The last and most important case was Wong Kim Ark. Wong Kim Ark as a person was unique in that he was born after the adoption of the 1866 Civil Rights Act but before the adoption of the Chinese Exclusion Acts in San Francisco. [] He was also born into a two-parent Chinese mercantile family who could emigrate – but not naturalize – even under the Exclusion Acts. In short, he was the perfect Upper Middle-Class child-plaintiff. 

Because of treaty agreements – despite the constitutional doctrine of the right to expatriate – Wong Kim Ark’s parents, at the time of his birth, were subjects of the Emperor of China, but had a long-standing residence in the United States. The parents were not employed in any diplomatic or official capacity under the Emperor of China. As noted above, in the 1870 Census there were approximately 65,000 Chinese nationals in the US, 5,000 of whom were women. There were also approximately 500 children born in the United States to Chinese nationals,

Wong Kim Ark went on a trip to China but had been denied re-entry to the United States after the return based on the Exclusion Acts. He was held in detention but filed for a writ of habeas corpus. The legal costs were born by San Francisco Chinese Aid Associations. Via habeas corpus, he challenged the government's refusal to recognize his citizenship, and the Supreme Court ruled in his favor holding he was a US Citizen at birth and could not be de-naturalized.

That was foreshadowed by Justice Stephen Field who was appointed to the Supreme Court by President Lincoln in 1863 and therefore had a contemporaneous understanding of the basis for the Civil War Amendments. In fact, the Slaughter-House Cases, which has since been received much deserved criticism, Justice Field's dissent focused on the Privileges or Immunities clause, not the Due Process clause (which was important in the dissent of Justice Bradley as well as the dissent of Justice Swayne) as the basis for “incorporation” of the Bill of Rights Against State action. 

While Justice Field was hardly modern in his racial attitudes, in his 1884 district court ruling in In re Look Tin Sing, 21 F. 905 (1884) he declared that children born in U.S. jurisdictions are U.S. citizens regardless of ancestry and irrespective of whether the parents could naturalize.  He further stated that the rule prior to the Civil War was that the children of parents who could naturalize who were born on US soil were citizens.

If one looks at Wong Kim Ark – the whole domicile issue now being raised as justification for the Executive Order was not litigated in the lower courts in that case. The term “residence” in the 14^th Amendment applies to a US Citizen who resides within a state and addresses the Comity Clause issue raised in Dred Scott.

Given that there is agreement that Wong Kim Ark was naturalized at birth by the 1866 Civil Rights Act it is clear that he could not be involuntarily denaturalized under Afroyim which should have ended the discussion. However, the Supreme Court's majority went further and concluded that the phrase “subject to jurisdiction” referred to being required to obey U.S. law. Under this rational, only those with Diplomatic Immunity are covered though native Americans raise unique issues. 

On this basis, they interpreted the Citizenship Clause to grant citizenship to children born in the United States with a reference to the 1866 Civil Rights Act test with only a limited set of exceptions based on English common law. The Court held that being born to alien parents was not one of those exceptions even if the parents could not naturalize under the laws in effect at that time. []

The Wong Kim Ark dissenters – Chief Justice Fuller and Justice Harlan – did not dispute that Congress could allow for citizenship by birth children born in the United States of parents who were not citizens. But on the other hand, the 14^th Amendment did not arbitrarily make citizens of children born in the United States of adults who, according to the will of their native government and of this government, are and must remain aliens. In other words, this was an issue of Congressional choice not constitutional mandate. 

However, the 1866 Civil Rights made a choice to naturalize at least the class of people that included Wong Kim Ark which could not be subsequently be revoked because of the 14^th Amendment. In terms of statutes being inconsistent with Treaties, the Supreme Court also has stated that Congress possesses the power to breach and abrogate a treaty by passing later-in-time legislation that conflicts with U.S. treaty obligations. 

The dissenters also argued that “being subject to the jurisdiction of the United States” meant not being subject to any foreign power - that is, not being claimed as a citizen by another country via jus sanguinis—an interpretation which, in the minority's view, would have excluded children claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent). 

The dissent also noted the potential anomaly that a person born to a US Citizen abroad under the natural born citizen clause might not be able to become President or Vice President but the child of a parent who was not and could not become a citizen could. However, that concern was obviated by the 1790 Act that declared an American born abroad to US Citizen parents was a natural born citizen which under the doctrine of “contemporaneous understanding” was and is controlling. In fact, that view was confirmed by the courts as to Ted Cruz’s eligibility because while born in Canada his mother was an American citizen at the time of his birth. Elliott v. Cruz, 137 A.3d 646v (Pa. Commw. Ct. 2016), affirmed 134 A.3d 51 (Pa. 2016) (mem.), cert den. 580 U.S. 867 (2016) Taken to its logical conclusion, it would also mean that persons born on US Soil to non-citizens of any kind while the parents were not citizens would not be eligible either. That would rule out Charles Evans Hughes and Marco Rubio.

The dissent also would have rejected dual citizenship which has always caused anxiety for the State Department but is recognized in US Law. See, e.g.: Mandoli v. Acheson, 344 U.S. 133 (1952). In fact, dual citizenship may result not by choice but by fiat. As such, the Supreme Court noted in Rogers v. Bellei, that as to persons born in the US is protected from having his or her citizenship terminated from not having made a choice. 401 U.S. 815, 831-833 (1971)

I have read and re-read Wong Kim Ark three times. In my view, the Supreme Court majority in Wong Kim Ark basically went “all in” on citizenship by expansively holding that the 1866 Civil Rights Act was constitutionalized by the 14^th Amendment and treated as naturalized at birth citizens everyone born on US soil to foreign parents save as to children born to parents who were not citizens as part of invading armies, diplomats [assuming both were non-citizens – and children of diplomats can obtain LPR status and then naturalize], and Indian’s part of tribes [Indians “not taxed” and that is found in Section 4 of the 14th Amendment] and they were collectively naturalized in 1924. 

In fact, as to Chinese and other Asians not born in the United States, when Hawaii was annexed by Treaty in 1898 and organized as the Territory of Hawaii in 1900, the Act stated that any person who was a citizen of the Republic of Hawaii on or before August 12, 1898 would also be a citizen of the United States, and any citizen of the United States who resided in the islands on or after August 12, 1898 would have to live there to become a citizen of the Territory of Hawaii. As two US Attorney Generals at the time formally opined all persons irrespective of race who were Citizens of Hawaii [which included large numbers of persons of Chinese, Filipinos, and Japanese ancestry] were made US Citizens by the Organic Act aka Collective Naturalization. []

In terms of the exceptions, they have largely been mooted.

• As to native Americans, the whole issue of Native Americans was mooted because Congress collectively naturalized them En Masse as Dred Scott itself held it had the power to do. As such, I would say given the passage of time [I doubt that there many original Native Americans naturalized in 1924 still alive] essentially all of them are birthright citizens being born to citizens as noted in Minor. See: Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18 fn. 10 (1987)
• As to children of diplomats, at one point because of a 1907 Congressional Act, women who married non-citizens were held to have expatriated themselves. That was upheld by the Supreme Court in Mackenzie v. Hare, 239 U.S. 299 (1915). Expatriation in that form was very unpopular within the Republican Party among upper class women.  Theodore Roosevelt signed the 1907 Act without checking with his wife who TR usually listened to. The 1920 Republican Platform promised to pare back or repeal the law which Congress did during the Harding Administration, save as to women who married persons who could not be naturalized. [] Because of Vance v. Terrazas and Afroyim, Mackenzie v. Hare and its implications have been nullified. In 8 USC 1481 there is no reference now to marriage as an expatriating event. 

In so far as the foreign diplomat exclusion still has any meaning, the President in effect in his executive order treats children of diplomats where one parent is a citizen or a LPR holder as US Citizens and in effect by executive action treated some potential number of persons who might not otherwise be viewed as US Citizens by the State Department as US Citizens.

• As to children of occupying armies, this exception has never been litigated in practice. 8 USC 1481(a)(7) provides if that expatriation will occur if by voluntarily performing with the intention of relinquishing United States citizenship by committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

In so far as the occupying forces exclusion still has any meaning, again the President in effect his executive order overruled the State Department if one parent is a citizen or a LPR holder at the time of birth.

As such, whether rightly or wrongly decided in all its applications, Wong Kim Ark as the Chief Justice and Justice Kavanaugh noted has been taken to mean that children born on incorporated US soil are citizens with the 3 caveats noted above which are mostly obsolete. 

5 of the Justices held that it was a decision interpreting the Constitution as the District Court noted in CASA, Inc. v. Trump, 763 F.Supp.3d 723, 738-740 (D. Md. 2025) and thus per City of Boerne v. Flores, 521 U.S. 507 (1997) only the Supreme Court may abrogate it unless there is a constitutional amendment. Justice Kavanaugh opined that the statutory language is based on the 1866 Civil Rights Act when coupled with Afroyim that once made a citizen, one cannot be involuntarily stripped of the same. As such, Congress could prospectively act. The related statutory question is what was posed by the Court as a way to avoid the Constitutional issue.

As the 1^st Circuit noted in Doe v. Trump, Congress codified Wong Kim Ark in 8 USC 1401(a) which was in essence collective naturalization. 157 F.4^th at 84-85. The same basic points were made by Amicus Members of Congress noted in their brief of April 29, 2005 in Trump v. Casa, 606 U.S. 831 (2025). There was also an extensive discussion in the brief as to Hintopoulos [but not of the specifics].

No one has discussed  the “Foundling Provision” in 8 USC 1401(f) which provides that:

“The following shall be nationals and citizens of the United States at birth:  …. (f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.”  

Section 1401(f) is the so-called “foundling provision” and was adopted to comply with Treaty obligations. This is a classic example of place of birth citizenship naturalization – only no one knows where the baby was born.  Having gone to Hebrew School I know well the Story of Moses. In the Old Testament, the story of Moses in the bulrushes is told in Exodus 2:1-10. To save her child from Pharaoh's order to kill all male Hebrew infants, Moses' mother hid him in a basket of reeds and placed it in the river. Pharaoh's daughter found the basket and took Moses in as her son, naming him Moses. Moses was raised in the palace, but eventually led his people out of Egypt. The wrong policy choices will result in a spike in abandoned babies and into foster care though it could result in more adoptions.

In any event, the Supreme Court has not questioned the breadth of Wong Kim Ark as a matter of law in numerous cases as Chief Justice Roberts noted: 

• In Weedin v. Chin Bow, [274 U.S. 657 (1927)] in an opinion by Chief Justice Taft – the original “Originalist”, he stated [referring to Wong Kim Ark] “The majority in that case, as already said, held that the fundamental principle of the common law with regard to nationality was birth within the allegiance of the government and that one born in the United States, although of a race and of a parentage denied naturalization under the law, was nevertheless, under the language of the Fourteenth Amendment, a citizen of the United States by virtue of the jus soli embodied in the amendment. The majority in that case, as already said, held that the fundamental principle of the common law with regard to nationality was birth within the allegiance of the government and that one born in the United States, although of a race and of a parentage denied naturalization under the law, was nevertheless, under the language of the Fourteenth Amendment, a citizen of the United States by virtue of the jus soli embodied in the amendment. The attitude of Chief Justice Fuller and Mr. Justice Harlan was that at common law the children of our citizens born abroad were always natural-born citizens from the standpoint of this government, and that to that extent the jus sanguinis obtained here; that the Fourteenth Amendment did not exclude from citizenship by birth children born in the United States of parents permanently located here who might themselves become citizens; nor on the other hand did it arbitrarily make citizens of children born in the United States of adults who, according to the will of their native government and of this government, are and must remain aliens.” 274 U.S. at 670
• In Morrison v. People of State of California [291 U.S. 82 (1934)] the Court observed that:

“A person of the Japanese race is a citizen of the United States if he was born within the United States. United States v. Wong Kim Ark, 169 U.S. 649 He is a citizen, even though born abroad, if his father was a citizen, provided, however, that this privilege shall not exist unless the father was at some time a resident of the United States as well as a citizen, and provided also that such a child, who continues to reside abroad, shall, in order to receive the protection of this government, be required upon reaching the age of eighteen years to record at an American consulate his intention to become a resident and remain a citizen of the United States, and shall be further required to take the oath of allegiance to the United States upon attaining his majority. R.S. s 1993; 8 U.S.C. s 6 (8 USCA s 6); Weedin v. Chin Bow, 274 U.S. 657; see also R.S. s 2172; 8 U.S.C. s 7 (8 USCA s 7). But a person of the Japanese race, if not born a citizen, is ineligible to become a citizen, i.e., to be naturalized. The privilege of naturalization is confined to aliens who are ‘free white persons, and to aliens of African nativity and to persons of African descent. “291 U.S. at 85

• In Perkins v. Elg, 307 U.S. 325 (1939), the Supreme Court in the case of a child born in the United States to previously naturalized parents on U.S. soil is a citizen under the 14^th Amendment and that the child's citizenship is not lost if the child is taken to and raised in the country of the parents' origin, provided that upon attaining the age of majority, the child elects to retain U.S. citizenship "and to return to the United States to assume its duties." 

The Court went on to say in an opinion by Chief Justice Hughes that “on her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866,14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U. S. 649. In a comprehensive review of the principles and authorities governing the decision in that case -- that a child born here of alien parentage becomes a citizen of the United States -- the Court adverted to the ‘inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.” 307 U.S. at 328-329.

• In Oyama v. California, 332 U.S. 633 (1948) the Court noted that while Oyama’s father being born abroad could not be naturalized he was a natural born citizen noting that “[B]y federal statute, enacted before the Fourteenth Amendment but vindicated by it, the states must accord to all citizens the right to take and hold real property.” 332 U.S. at 640. The basis for Omaya was that the 1866 Act in essence naturalized him.
• By way of background, constitutionally to show treason, the defendant generally has to be a US Citizen. []  To commit treason abroad one must be a US Citizen. In Kawakita v. United States, 343 U.S. 717 (1952) Kawakita was sentenced to death for treason and various war crimes.  The Supreme Court noted that Kawakita was a US Citizen even though his parents were Japanese citizens. He was therefore a citizen despite Japanese law treating him as a citizen of Japan. Id at.  719.  The main issue in the case was whether Kawakita had expatriated himself in a valid manner. The Court split 6-3 on the expatriation issue against Kawakita. His sentence was subsequently commuted and President Kennedy as a condition of commutation insisted that Kawakita renounce his U.S. citizenship and self deport to Japan.
• In United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957) the Supreme Court observed that a child born on United States soil to temporary residents was ipso facto a United States citizen. It did not state the legal basis for that comment but I assume it was by virtue of the 1866 Civil Rights Act and Wong Kim Ark. In Hintopoulos, the mother entered the US legally and the child was born while the mother had legal presence.
• In INS v. Errico 385 U.S. 214 (1966) the Supreme Court observed the child of couple born on US soil that entered the United States by misrepresentation acquired United States citizenship at birth. 
• In Rogers v. Bellei, 401 U.S. 815 (1971) reaffirmed its prior holdings as to Wong Kim Ark but that Section 1 of the 14^th Amendment had no application to citizenship rights for an individual born abroad. In Bellei an individual who received an automatic congressional grant of citizenship at birth, but who was born outside the United States, may lose his citizenship for failure to fulfill any reasonable residence requirements which the United States Congress may impose as a condition subsequent that citizenship. The relevant statute has since been repealed. 
• In INS v. Rios-Pineda, 471 U.S. 444 (1985) the Supreme Court observed that the child of persons without legal presence born on US soil are citizens but it does not appear that the issue was argued directly.
• In Miller v. Albright, 523 U.S. 420 (1998), all the Justices accepted the breadth of the holding in United States v. Wong Kim Ark, 169 U. S. 649, 702 (1898) that subject to the 3 exceptions, a new born becomes at once a citizen of the United States, and needs no naturalization.

WHAT IS NEXT AS A SPUR TO ACTION

There may be three positive results from this besides people learning history and Justice’s Thomas and Jackson duking it out over Dred Scott. The President claims that there is room for action by Congress – I doubt that but that does not mean consideration should be given to the following issues:

One, what the President has started may for various reasons result eventually in an actual and official centralized registry of US citizens. There is now as to naturalized citizens a registry via the citizenship certificate process which is how the State Department to could confirm that I am the grandson of a naturalized citizen for a passport which I did at Ms. Garvey’s request.

In the case of naturalized citizens, they have those documents.  As Senator Gil Cedillo once noted, naturalized citizens and their children have their documents. Rather, the potential brunt of this will be initially imposed on US born citizens who were born on incorporated US soil to parents who themselves are US Citizens at birth, they do not have Citizenship certificates because the family goes back 8 or 9 generations. These people are typically Trump voters in Red States. 

That means that rules on proof of Citizenship needs to be modernized and made much more conclusive. There are two such documents: (i) Form N-600; or (ii) U.S. Passport. Form N-600 which is an application for a Certificate of Citizenship.  The passport is also issuable. 

However, Form N-600 Application for Certificate of Citizenship issued by USCIS, after an approved Form N-600 application is a permanent document — it does not expire. Once issued, it can only be cancelled through formal proceedings the Certificate of Citizenship constitutes conclusive proof of U.S. citizenship in both judicial and administrative proceedings. The problem is that Certificates of Citizenship are not issued to children of citizens born on US Soil. That needs to change immediately, and the parents should be able to apply for one at the hospital.

A U.S. passport is issued by the Department of State. Under 22 U.S.C. § 2705 — a valid, unexpired U.S. passport carries identical legal weight to a Certificate of Citizenship as proof of citizenship, for the passport’s period of validity. The passport should be used for what it was intended – a travel document. Both Citizenship Certificates and Passports will satisfy an I-9 employment verification, get your child on an international flight, and establish citizenship for virtually any administrative purpose while they are current. The differences are in cost, processing time, and 

Secondly, there is no procedure – save as to children of diplomats - to naturalize persons born on US soil born to non-citizens for the reason it was not thought needed since 1868 and does not exist today. The Guidance document set forth above notes:

“Children born in the United States to fathers who are not United States citizens, lawful permanent residents, or U.S. nationals and mothers who are in lawful but temporary status do not acquire United States citizenship at birth. DHS and USCIS will propose appropriate action to ensure that birth in the United States to individuals who possess lawful immigration status does not result in any negative immigration consequence for the child.

“Presently, children of parents present in the United States on diplomatic visas are not subject to the jurisdiction of the United States pursuant to 8 U.S.C. 1401(a) but are entitled to acquire lawful immigration status by registering. See 8 CFR 101.3. USCIS intends to broaden this practice to permit the children of aliens that possess lawful but temporary status to register to acquire any lawful status that at least one parent possesses. This section of the Code of Federal Regulations addresses the existing population of children whose situation is most closely analogous to the alien children of mothers in lawful but temporary status, as it governs the provision of status to the children of foreign diplomatic officers born in the United States but not subject to the jurisdiction of the United States. To fill any regulatory gaps before such a proposal could be implemented, the Department would propose to defer immigration enforcement against such children.”

There are countless cases of persons born here to persons who are here legally on non-immigrant visas of one kind or another. Kamala Harris was born in Oakland to two foreign students. Her mother never naturalized but her father did later in life. Similarly, Usha Vance was born in San Diego County to Telugu Indian immigrant parents and raised in an upper-middle-class lifestyle. We do not know on what visa her parents came or if she was born after her parents obtained LPR status or are now citizens.  Her husband has made comments which are inconsistent on this topic. 

The implementation guidelines do not call for statutory changes. The only way to address that is to create an across-the-board procedure on this to explicitly naturalize the children irrespective of place of birth. 

I would conclude that while certain elements of the Republican Party will trash the decision, the Republicans avoided a real masher basher. Even under the Executive Order, the real practical and immediate issue over the next several years is not per se the status of future children born on US soil as of a date certain as that would sort itself out. Rather, the Court avoided the spectacle of how parents of the child show their citizenship status at the time the child is born in terms of what they show up with at the medical facility. What documents do they need to establish their citizenship so that their children are birthright citizens?  That would have played itself out on TV.