For the whole of the Twentieth Century, it was commonly assumed that children born in the United States to alien parents were constitutionally entitled to be United States citizens. This assumption is based upon a U.S. Supreme Court case, United States v. Wong Kim Ark, 169 U.S. 649 (1898), which held that a child who had been born of alien parents, lawfully in the United States, was entitled to citizenship under the Fourteenth Amendment based on its terms that “[a]ll persons born in the United States ... and subject to the jurisdiction thereof, are citizens of the United States ....” The Supreme Court’s decision in Wong Kim Ark was based upon an inapplicable British common law rule that an individual, born on British soil, owed allegiance to the British sovereign who not only governed the land, but owned it. Such a rule is wholly unsuitable to America, a nation whose sovereign is the people and whose land is owned by no man.
Not only did the Supreme Court fail to recognize the unsuitability of an old British rule, it failed to apply the original and historical meaning of the Fourteenth Amendment. To be born “subject to the jurisdiction” of the United States is not just to be physically present within the nation’s boundaries. Rather, to be “subject” is to evidence allegiance and fidelity to the American nation. Children of alien parents are not entitled to an irrebuttable constitutional presumption of such loyalty just because they are born on American soil. Indeed, children born to alien parents who defiantly enter or remain illegally in the United States are in no sense “subject” to the jurisdiction of the nation.
To date, no court decision has carefully analyzed and determined that the Wong Kim Ark decision should apply to children born of such illegal aliens. Such an issue is too important never to have been litigated and competently decided. The Wong Kim Ark rule ought either be (i) limited to its facts and applied only to resident aliens lawfully admitted to residence in the United States, or better yet (ii) overruled, leaving it to Congress to determine citizenship of such children by statute pursuant to its constitutional power to establish the nation’s naturalization policy.