ACLU to SCOTUS: Everyone’s the same… except when they’re not

Most reading this will vehemently disagree with Wang’s claim and, frankly wonder what point she was making

Is that so.

Most reading this will vehemently disagree with Wang’s claim and, frankly wonder what point she was making. The first thought that struck home was if she was expecting to shame the justices into head-nodding affirmation of a notion that is blatantly untrue. Was she applying woke peer pressure on the august panel seated before her?

Because that is exactly what it sounded like. That if every justice didn’t flatly agree with her all-encompassing assertion, they would prove themselves unAmerican.

The statement in itself was a manipulation of language (check her use of ‘manipulation,’ pg. 82/83 of the oral arguments) to impose a belief upon Americans that all agree upon this concept. Wang undermined her overall argument from the outset with a false claim.

In contrast to Gen. Sauer’s presentation, most of Wang’s argument was couched in equivocal references as this example: “Thirty years after ratification, this Court held that the Fourteenth Amendment embodies the English common law rule. Virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen.”

Again, an overarching application of citizenship, Wang invoked “extraterritoriality” to make her case about “the jurisdiction thereof” clause. Instead of properly separating the understanding of jurisdiction between the country where one is standing and the country where one is allegiant, she lumps it all together.

Wang: “...all of the exceptions involve situations where that U.S.-born child is not subject to the jurisdiction of the United States because that extraterritoriality, the fiction of extraterritoriality, the interaction of another sovereign between the United States' jurisdiction and that person applies to the child as well as to the parent.” (Black’s Law: Extraterritoriality - This concerns the operation of laws outside the boundary of a state or country.)

To clarify the common sense viewpoint regarding jurisdiction it’s necessary to understand that when one is visiting (a temporary sojourner), they are expected to follow the customs and laws of that country. This includes visiting officials representing a foreign government. Doing so does not replace the permanent jurisdiction of their home nation, to which they owe allegiance. It is a temporary situation where they should obey the statutes of the state or nation where they are visitors.

Any attempt to conflate allegiance to one’s home nation with obeying the laws of a nation where one is a guest (or, in the case of “undocumented” visitors, are present illegally), is specious. Yet that is essentially what Wang did, and she is wrong.

Her reference to English common law was limited. “Under English common law, if you are born in the dominions of the sovereign, you owe natural allegiance, and those who are present in the dominions of the sovereign owe temporary allegiance for as long as they're present.”

Applying this standard returns citizenship to feudalism, essentially the “dominions of the sovereign” in this application would refer to a monarch. Kevin Portteus, Ph.D. makes a valid point in his paper “Immigration and the American Founding:”

Citing Thomas Jefferson, he says, “The theory of the American Founding stands in direct opposition to the feudal notion of obligation ...

“Under the doctrine of feudal obligation, one is bound from birth to the place where he is born. He owes perpetual allegiance to the ruler of that place in gratitude for the protection he has been given. He is a subject, in the sense that he is involuntarily and perpetually subjected to a lord, and has no choice in the matter. The doctrine of feudal obligation, [James] Wilson notes, leads to a variety of unjust and bizarre applications.”

There is no “universal rule of birthright citizenship” 

What Wang overlooks is that the “dominions of the sovereign” by American, non-monarchical governance, would mean that the state to which one has citizenship, and is thus allegiant, is the sovereign, not the locale they are temporarily occupying, even as a newborn.

Common sense dictates that what is owed to any nation, is what was stated previously, and that is the visitor (ambassador or tourist) conforms to the laws of the nation they are temporarily visiting, be it legally (by visa, etc.) or illegally. The second visitor mentioned being subject to removal for contravening the very first law – that of gaining entry according to that nation’s laws.

Wang again, “The purpose of the Fourteenth Amendment was to embrace that universal rule of birthright citizenship to embrace and incorporate the common law exceptions with the single additional exception of the preexisting exception for tribal Indians that we had in the United States, which is an analogous exception, and that's the closed set of exceptions.”

There is no “universal rule of birthright citizenship.” Otherwise, it would have been practiced not only here but abroad. Wang has an unfortunate penchant for invoking words such as “all,” “everyone” and here, “universal.” This is not a legal standard. It is all-inclusivity which exists nowhere.

Reaching to try and prove a point through the Indian nations, whether those born outside the reservation are or are not citizens, Wang relies on dubious arguments pitting the two against each other. Native inhabitants of tribal lands delineated by treaty, indeed had and have a singular relationship to the United States, asserting some autonomy over their designated lands but still operating under the stewardship of the U.S. government. This would be why Justice Gorsuch made the following distinction:

The fiction that has been foisted on Americans is that of birthright citizenship

“...and some of it's not terribly helpful for you, it seems to me, because Justice Gray again, strikes again, says that they may be subject in some degree or respect to the United States. So there's some jurisdiction. He says they are born in the -- in the geographic limits, they are in a geographical sense born in the United States, but because they are not completely subject to the jurisdiction of the United States and owe allegiance distinct from the United States, that's what takes them outside. And that language sure sounds a lot like the Solicitor General's presentation today.”

On the other hand, does the concept Wang supports go the other way? If a non-tribal member gives birth while on the reservation, do they automatically receive tribal membership, citizenship? No. tribes set-up their own standards for membership, often on the basis of blood quotient. The whole tribal discussion was, basically, a rabbit trail that confuses the main issue – “the jurisdiction thereof” – by introducing racial discrimination into the argument.

In the common understanding of intent, as in the intent of the parent that delivers a child while in the United States, frankly, intent to stay is irrelevant.

It is the allegiance of the parent that is relevant because 1) the child is subject to the parent as a minor with no individual will; 2) presence on American soil does not overrule allegiance to their homeland or a foreign and incompatible philosophy or legal code, such as sharia. Enemies intend to take up residence to impose change of the culture, or even overthrow the laws through a variety of means.

Attempting to enshrine birthright citizenship as an irrefutable and universally accepted premise by Americans is contrary to the plain text of the 14^th Amendment. Allegiance, and thus citizenship, to a newborn is inextricably joined to the parents’ power and nativity. If the parent is a permanent resident of the United States, achieved by legal means and acceptance of American culture and laws, the child may be eligible. But the 14^th Amendment was never intended to bestow blanket citizenship to anyone who happens to be born on United States soil, be it within the national borders, territories, or military bases.

The fiction that has been foisted on Americans is that of birthright citizenship.