A surprising alignment unfolded during a recent Supreme Court oral argument, as liberal Justice Elena Kagan found herself questioning the arguments of Cecillia Wang, a prominent attorney for the ACLU, alongside conservative Justice Samuel Alito. The core of the debate centered on a fundamental question of citizenship and the interpretation of the 14th Amendment.
Wang asserted that the 14th Amendment mandates U.S. citizenship for anyone born within the nation’s borders, extending even to children of temporary visitors and those residing in the country without legal authorization. She anchored her argument in historical English common law and the 1898 Supreme Court case, *United States v. Wong Kim Ark*, claiming a settled legal precedent.
However, Justice Kagan immediately challenged this assertion, focusing on the specific language employed by the Court in *Wong Kim Ark*. She pointed to the repeated emphasis on “domicile”—a permanent, legal residence—as a crucial factor in the original ruling, questioning why such a significant term would be used if it held no weight.
Wang attempted to reframe the inclusion of “domicile” as merely a statement of the stipulated facts of the case, dismissing its legal relevance. But Justice Alito swiftly countered, arguing that the 1898 Court didn’t simply “sprinkle” the term into the opinion; they explicitly framed the entire legal inquiry around individuals with a “permanent domicile and residence” in the U.S. He directly challenged Wang, asking pointedly, “Why put it in if it’s irrelevant?”
Alito meticulously dissected the *Wong Kim Ark* decision, highlighting how the Court began and concluded its analysis by focusing on the question of permanent domicile. He presented a hypothetical scenario – a child born to parents with a temporary address – to illustrate the absurdity of ignoring the concept of domicile within the legal framework.
Wang responded by reiterating that domicile was a stipulated fact and that the core “rule of decision” from *Wong Kim Ark* remained binding, regardless of the specific circumstances of the case. She argued that even if the original ruling was based on those specific facts, the broader principle still applied to individuals without a permanent residence.
The debate extended to the historical understanding of the 14th Amendment’s “jurisdiction” clause. Conservative legal scholars contend that “jurisdiction” historically signified complete political allegiance to the United States, excluding those owing primary allegiance to a foreign power. This interpretation directly challenges the expansive view of birthright citizenship advocated by the ACLU.
Justice Neil Gorsuch added another layer to the complexity, noting the considerable confusion and disagreement within the legal community *after* the *Wong Kim Ark* decision. He pointed out that numerous respected legal authorities continued to debate whether the ruling definitively settled the question of citizenship for non-domiciled foreigners, leaving the issue open for further interpretation.
Gorsuch questioned Wang on the conflicting interpretations that arose following *Wong Kim Ark*, highlighting the “mess” of legal opinions and the continued insistence from many scholars that domicile remained a necessary condition for citizenship. Wang countered by presenting federal court decisions that, in her view, supported the idea that domicile was not a relevant factor.
