Cool, but the 14th amendment was ratified. At least we can agree on that. And this is what it says:

> 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.

You can try to weasel out all you want, but it's at the disrespect to the words of our constitution. Whatever interpretation you are justifying this month, it is radical and lonesome.

I've come to think that this is a dangerous hybrid of (a) bibliolatry — the idolization of a written text [0]; and (b) the Nuremburg Defense of "just following orders" [1], with the orders here being the aforementioned written text.

What follows is a crude and incomplete attempt at "thinking by writing" about another possible perspective that might be more effective than the balls-and-strikes approach that Chief Justice Roberts supposedly follows:

A. Historically, in medieval England a judge was an agent of the king [2], charged with deciding specific cases as he thought the king would do.

B. In the modern United States, the people are said to be sovereign, acting through their elected- and duly-appointed representatives (legislative and otherwise).

C. A legitimate sovereign seeks "the best" for the society in the long term — with limits on what harms can be inflicted on individuals in that pursuit. (Cf. John Rawls's A Theory of Justice, as partly manifested in the Bill of Rights and other constitutional provisions.)

D. When an extant command from the sovereign — in legislation or constitution — is clear and explicit, then the judge must follow the command (or resign if in conscience she can't comply).

E. But when there's room for different views about just what the sovereign would do at that time and in those circumstances, then the judge — well, judges, making a best guess about what the sovereign would do.

F. Yes, this has elements of a court of equity. It also draws on supremely-pragmatic doctrine from the U.S. military: When a tactical situation isn't covered by specific orders, the leader on the ground is supposed to make a best guess about "the commander's intent" and proceed accordingly. [3]

G. Certainly a judge making such a guess must take into account any available evidence about what the sovereign's intent might be if the sovereign were on the scene.

H. But it's an abdication of responsibility for the judge to throw up her hands and say, I'm sorry, even though the sovereign isn't here today, I'm not allowed to rely on my judgment about what the sovereign would do — instead, I must try to read entrails left over from legislative sausage-making by long-dead legislators who likely didn't consider (or even imagine) everything that I must take into account today.

I. To be sure, this can be calumnized as judicial legislating. But it seems like a pragmatic way to go about judging hard cases in a complex world.

Notes:

[0] https://en.wikipedia.org/wiki/Bibliolatry

[1] https://en.wikipedia.org/wiki/Superior_orders

[2] https://en.wikipedia.org/wiki/Royal_justice. In the framework I'm proposing above, today's judges, unlike their medieval counterparts, aren't given a roving commission to seek out cases and "do justice."

[3] https://www.mca-marines.org/gazette/commanders-intent-define...

[4] https://www.govinfo.gov/content/pkg/CFR-2002-title32-vol5/ht...

It seems obvious that the 14th amendment meant to reflect the very similar language of the civil rights act of 1866:

> 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

What does “and not subject to any foreign power” mean? Nobody knows because Wong Kim Ark doesn’t bother to actually try and address that point.

That would also explain why Congress found it necessary to confer citizenship on Indians by legislation in 1924.

To be clear, I think the specific holding is correct. The 14th amendment is an equal protection amendment, and removed Congress’s power to discriminate citizenship based on race. But that doesn’t answer the question of whether the 14th amendment also removed Congress’s power to qualify citizenship based on legal immigration status or other grounds. It doesn’t purport to be a birthright citizenship order.

Maybe the Court should look into the “emanations from penumbras” of the term “subject to the jurisdiction thereof” to see what they can find in there.

That's a lie. The opinion does engage with that question in depth, and also digs into why the language of the 14th amendment differs from that of the 1866 civil rights act. You're trying to shift attention away from the text of the 14th amendment (which is the supreme law of the land) to the text of an earlier law whose meaning you think is easier to argue over. I encourage anyone who has a few hours to take a good look at the case and see for themselves.

https://www.law.cornell.edu/supremecourt/text/169/649

Maybe the Court should look into the “emanations from penumbras” of the term “subject to the jurisdiction thereof” to see what they can find in there.

Weasel words, linking the case to another (Griswold v. Connecticut (1965)) hated by conservatives so as to throw shade on the former.

The Original Intent of the 14th Amendment

The 14th Amendment was ratified in 1868, primarily to overturn the Supreme Court's infamous 1857 ruling in Dred Scott v. Sandford. In that decision, the Court had held that no person of African descent, whether enslaved or free, could be a U.S. citizen.

The framers of the 14th Amendment intended to create a clear constitutional rule that would prevent this from ever happening again. Senator Jacob Howard, a key drafter of the amendment, stated that its citizenship clause "will, of course, include the children of all parents... who may be born in the United States." He specified only two exceptions: children of foreign diplomats and of enemy forces.

The language of the amendment was a direct refutation of the racist rationale of the Dred Scott decision. While the concept of "undocumented immigrants" as we know it today did not exist, the amendment's framers used broad language to ensure that citizenship was based on a principle of birth on American soil, not on race or the legal status of one's parents.

The Role of Wong Kim Ark

The Wong Kim Ark case became necessary because the government's interpretation of the 14th Amendment had narrowed. Following the passage of the Chinese Exclusion Act of 1882, the U.S. government began arguing that Chinese people, even those born in the U.S., were not citizens. They claimed that Wong Kim Ark was not "subject to the jurisdiction" of the U.S. because his parents were still subjects of the Emperor of China.

The 1898 Supreme Court ruling in Wong Kim Ark was a crucial reaffirmation of the original intent. The Court's 6-2 majority opinion, written by Justice Horace Gray, systematically dismantled the government's arguments. The Court looked to the history of English common law and the intent behind the 14th Amendment.

It concluded that the phrase "subject to the jurisdiction thereof" applied to all persons who are subject to U.S. laws and not under the authority of a foreign government, such as diplomats. The Court found that Wong Kim Ark's birth in the U.S. automatically made him a citizen, despite his parents' ineligibility for citizenship under the Chinese Exclusion Act.

In short, the Wong Kim Ark decision did not create a new standard; it prevented the government from creating a new, more restrictive interpretation of the 14th Amendment. It affirmed the foundational principle that birth on U.S. soil is the basis for citizenship, a principle that has been a cornerstone of American law ever since.

The *Slaughterhouse Cases (1873)* famously narrowed the interpretation of the 14th Amendment, particularly its Privileges or Immunities Clause. While the case primarily focused on that clause, the Court also touched upon the "subject to the jurisdiction" language in the citizenship clause.

The 14th Amendment states: "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."

In the Slaughterhouse Cases, Justice Samuel Miller, writing for the majority, briefly clarified the meaning of "subject to the jurisdiction thereof." He stated that this phrase was intended to *exclude certain categories of individuals from automatic birthright citizenship*, even if they were born on U.S. soil. Specifically, he mentioned:

* *Children of foreign ministers or consuls:* These individuals are considered to be under the jurisdiction of their parents' sovereign nation, not the United States. * *Children of citizens or subjects of foreign states born within the United States:* This was a general exclusion for those whose allegiance was considered to be to another country, such as children of enemy aliens during wartime.

The primary purpose of this clause, in the context of the post-Civil War era, was to firmly establish the citizenship of formerly enslaved people, overturning the Dred Scott decision. However, the "subject to the jurisdiction" language ensured that certain exceptions to territorial birthright citizenship were maintained, consistent with international law and diplomatic practice.

It's important to note that while the Slaughterhouse Cases introduced this interpretation, the scope of "subject to the jurisdiction" for birthright citizenship was later more definitively addressed and affirmed in United States v. Wong Kim Ark (1898), which held that a child born in the United States to Chinese immigrants who were not citizens was indeed a U.S. citizen because he was "subject to the jurisdiction" of the United States.