The Jurisprudence of Birthright Citizenship

by Leonard Daneman, blogging at Paraleaglenm, ©2025

(Aug. 9, 2025) — Birthright Citizenship came out of gross violations of jurisprudence, causing Conflicts of Law and de facto, unconstitutional, ‘revisions’ to the 14th Amendment and Article II of the Constitution

Forward: Birthright Citizenship is generally understood to be a constitutional right. WRONG! It was created, unconstitutionally, by the Wong Kim Ark case in 1898. Unfortunately, any analysis and rejection of the decision is objectionable to Chinese-Americans, to whom Wong is a hero. Yes, the Chinese were excluded from citizenship, born or naturalized; but this was in agreement through treaty with the Chinese Emperor who jealously guarded the ‘subjection’ of his people, a distinct regional and racial heritage from a culture with 5000 years of history. Subjection is not unique to Imperial power. Islam shares complete subjection; renouncing of the faith considered apostasy. This aspect of foreign law is summarized at the very end of the Wong Kim Ark decision, citing Chinese law.¹

Why was the Wong Kim Ark case unconstitutional? It violated two constitutional laws–One being that naturalization law was to be uniform and completely the plenary power of congress (a fact admitted by the court). And, secondly, the judiciary was to adjudicate cases and controversies, not legislate or create conflicting ‘revisions and amendments’ to existing constitutional laws. When the 1898 court created ‘birthright citizenship,’ it was in direct conflict with existing law and resulted in the eventual general misinterpretation of Article II and the 14th Amendment. The law, and treaty, were clear; and Wong had no case.²

OPINION OF THE GOVERNMENT

“Rather, it [the government] argued that because Wong’s parents were “Chinese persons and subjects of the Emperor of China,” Wong inherited this status and was also a “Chinese person and subject of the Emperor of China.” The government further reasoned that “Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person” and was not an American citizen (Wong Kim Ark 650). If Wong were not a U.S. citizen, he would be legally barred from entering the country under the Chinese Exclusion Act. https://omeka.reed.edu/s/united-states-v-wong-kim-ark/page/united-states-v-wong-kim-ark-ruling

Wong, indeed, was not a U.S. citizen and was detained when he attempted to enter the United States for deportation and return to China. This is how the case arose, Wong insisted that he was a ‘native born’ citizen, which for over 108-years of U.S. naturalization and nationality law did NOT exist. There was no such condition for citizenship requiring ‘native’ birth. The 14th Amendment was a singular exception created in 1866’s Civil Rights Act to confer citizenship, post nati (not at birth), to ‘stateless’ freed slaves and Native Americans.

Here is the analysis by a Reed University website cited supra: By emphasizing that Wong and his parents were “Chinese persons” and not American citizens, the government highlighted the racialized conception of birthright citizenship that underpinned its argument. Likewise, these statements conflated “Chinese” with otherness, suggesting that “Chinese” and “American” were at odds with each other (Lee 105). The government’s framing of the issue in United States v. Wong Kim Ark elucidates the prominent role racial animus played in the circumstances surrounding the case, implying that Chinese persons’ racial difference was reason enough to justify their exclusion.” [emphasis added]

IS CRITICISM OF BIRTHRIGHT CITIZENSHIP VIA WONG KIM ARK RACIST?

Supporters of Wong claim that opposition to Chinese citizenship, their ‘exclusion,’ was racist. The problem with that is the Chinese Emperor himself demanded exclusion, not only of Chinese subjects becoming U.S. citizens i.e., renouncing Chinese subjection and heritage, but he denied U.S. citizens from emigrating to China. (See fn 1) The ‘white man’ or European was denied becoming Chinese.

Jurisprudence–The ‘science of law necessary for the due administration of justice.’

Rules of Jurisprudence provides guidelines for the judiciary and legislature, one being that the constitution is the highest law of the land that cannot be abrogated or violated. To change the constitution, the legislature must follow specific rules to amend it.

The judiciary cannot amend or revise the constitution! It must yield to its supremacy, and also follow laws as legislated by congress. Rules of jurisprudence also require the court to follow the judicial decisions of previous cases as precedent, or stare decisis, Latin for ‘to stand by things decided.’

The 1898 Wong Kim Ark court violated jurisprudence to create ‘birthright citizenship.’

As cited in footnote 1, the constitutional power of the legislature made it clear, for 108 years up to Wong Kim Ark, that jus sanguinis was the basic principle of acquiring citizenship; it being the fundamental principle and the law. The justices in Wong Kim Ark violated the law, relying on foreign sources which comprised the first 25 or so pages of their 85 page opinion. All those foreign sources had no power of stare decisis. The law, as cited in footnote 1, was clear. Wong had no ‘native born’ citizenship. The citing of and reliance on foreign law, ‘lords,’ foreign judges, and legal commentaries was a direct violation of jurisprudence.

The constitution gave congress plenary power to create a ‘uniform’ naturalization act. The word ‘uniform’ is key, which could be restated as ‘without conflict of law.’ However, the Wong Kim Ark court resorted to the opinions and commentaries of scholars and English common law (secondary resources, instructive but not followed as Justice Ginsberg once opined, but NOT law), thus ignoring the firm precedent the 1790 First Uniform Naturalization Act et seq (fn 2), ironically similar to the 1772 British Nationality Act. Both laws relied on the nationality and allegiance of the father (jus sanquinis), not ‘place of birth.’

Read the rest here.