A high-stakes oral argument saw an unlikely alliance between liberal Justice Elena Kagan and conservative stalwart Justice Samuel Alito.
Cecillia Wang, a high-ranking attorney for the far-left ACLU, appeared before the Supreme Court recently to argue that the 14th Amendment requires the U.S. to hand out citizenship to literally anyone born on our soil, including the children of temporary “sojourners” and, by extension, those here illegally.
Wang attempted to lean heavily on English common law and the landmark 1898 case United States v. Wong Kim Ark, claiming the history is settled.
There’s just one problem: She’s ignoring what the case actually says.
Even liberal Justice Elena Kagan wasn’t buying Wang’s bright-line fantasy.
Kagan pressed Wang on the specific language used by the Wong Kim Ark court, noting that the Justices back then repeatedly mentioned “domicile,” meaning a permanent, legal residence, as a key factor.
Cecilia Wang:
Domicile was not relevant, and the children born to temporary visitors in the territory of the sovereign were always considered birthright citizens.
Justice Elena Kagan:
Well, Ms. Wang, I mean, everything you say strikes me as—yeah, that’s the way I read it too. But then what are those 20 domicile words doing there? Like, you can take some of them and say, I don’t know, they were just summarizing the facts of the case—but not all of them. And why did they keep on—like, why did they sprinkle that in the opinion?
Cecilia Wang:
Well, I think—but again, those were the stipulated facts in the case. And it’s clear we have textual evidence in the majority opinion that they were simply saying this is an a fortiori application of that controlling rule that comes from the English common law.
Justice Gray writes, again, after setting out the English common law rule and the exceptions—with a single additional exception for children of members of Indian tribes—that the Amendment, in clear words and manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States.
And as was pointed out earlier, in the very next part of that same paragraph, he cites Webster discussing Thrasher’s Case, and he says people who are born in this country owe allegiance independently of residence—
I’m sorry—foreign nationals owe allegiance independently of residence, without intention to continue such residence, independently of any domiciliation, and independently of taking any oath of allegiance, which is totally contrary to both the government’s theory of dual allegiance or partial allegiance and to the theory of domiciliation.
Wang tried to dismiss the language as a “stipulated fact” that didn’t really matter, but Justice Samuel Alito wasn’t having any of it.
Alito hammered home the point that the 1898 Court didn’t just “sprinkle” the word in; they framed the entire legal question around parents who had a “permanent domicile and residence” in the U.S.
“Why put it in if it’s irrelevant?” Alito demanded, essentially calling out Wang for trying to gaslight the highest court in the land. He mocked the idea that the Justices of the past would just throw in random, meaningless details about a person’s address if it didn’t impact the legal standard for citizenship.
Justice Samuel Alito:
I mean, I might agree with you if domicile had simply been sprinkled in the opinion. But in Wong Kim Ark, it’s a long opinion—but it begins by saying, “Here’s the question,” and it ends by coming back to the question.
And it says—here’s the question stated at the beginning of the opinion—namely, whether a child born in the United States of parents of Chinese descent, who at the time of his birth are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business.
And he states the diplomatic exception, and he says, “For the reasons above stated, this Court is of the opinion that the question must be answered in the affirmative.”
So why put domicile in? Sometimes it’s hard to figure out what is the holding of the case here. He tells us this is the holding of the case. Why put domicile in there? Is it just something irrelevant that he wanted to throw in?
It’s like saying whether a child born in the United States of parents of Chinese descent—who once resided at a particular address in San Francisco—who attempted to enter the country at the Port of San Francisco?
Justice Samuel Alito:
Why put it in if it’s irrelevant?
Cecilia Wang:
Well, Justice Alito, I’ll give you two responses. The first is that, again, it was a stipulated fact. The second is that regardless of what the judgment in the case was—which, again, was an a fortiori application of the rule of decision—the rule of decision in Wong Kim Ark has binding precedential effect.
Even if you think that Wong Kim Ark decided the case based on the stipulated facts, you still have to follow that controlling rule of decision. And if you follow that rule, you get to the same result for people without domicile.
Wong Kim Ark says six times in the first parts of the opinion—as well as on the page the government focuses on—that domicile is not relevant.
The ACLU and their allies in the mainstream media love to claim that “Birthright Citizenship” for everyone is an ancient American tradition.
But as Justice Neil Gorsuch pointed out during the heated exchange, the legal community was a “mess” after Wong Kim Ark, with many “sound legal authorities” insisting the question of non-domiciled foreigners (like tourists or illegal aliens) remained wide open.
The 14th Amendment states that citizens are those born in the U.S. and “subject to the jurisdiction thereof.”
Conservative scholars have long argued, and the data backs it up, that “jurisdiction” meant more than just standing on the geography; it meant a total political allegiance to the United States, excluding those who owe allegiance to a foreign power.
Justice Neil Gorsuch:
On that, what do we do with the fact that after Wong Kim Ark, at least some authorities took the view that the non-domiciliary question wasn’t decided, remained open, and even continued to press the view that domicile is required?
I know you’ve got a lot of good stuff on your side, too. But what do we do with the fact that many, many sound legal authorities thought it remained an open question—even if one of them wasn’t John Marshall Harlan?
Cecilia Wang:
I liked your example from Justice Harlan’s lecture here in D.C. So here’s what I would say: all of the government’s citations in their brief generally either were rejected by Wong Kim Ark expressly—if they predated it—
Justice Neil Gorsuch:
If we’re trying to understand how the legal community understood what happened in Wong Kim Ark, it seems to me it’s a mess. So maybe you can persuade me otherwise.
Cecilia Wang:
I think I can, Justice Gorsuch. First, as to the post-Wong Kim Ark authorities the government cites, each one of them is either inconsistent with Wong Kim Ark’s reasoning or doesn’t mention it at all. Most of them have very little reasoning.
And in contrast, what we have on our side post-Wong Kim Ark is numerous federal court decisions around the time of Wong Kim Ark—between ratification and Wong Kim Ark—that said that domicile is not relevant. They cited Lynch v. Clarke, which again was about the daughter of temporary sojourners.
WATCH:
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