- Joined
- Nov 28, 2011
- Messages
- 23,246
- Reaction score
- 18,235
- Gender
- Undisclosed
- Political Leaning
- Other
Yes, it did... just not for Native American Indians.
The reasoning in Elk is not based on a rejection of jus soli for ALL foreigners; the children of ambassadors, foreign ministers, and Indians were specified exceptions. This is reinforced by Section 2 of the 14th Amendment explicitly referring to "Indians not taxed," the 1866 CR law, treaties, and so forth.
We should also note that Wong Kim Ark did not, in fact, overturn Elk. Indians were not granted citizen via birthright until it was granted via the Indian Citizenship Act of 1924. Why would that law be necessary, if Wong had in fact overturned Elk?
Or perhaps you did not happen to read the section in Wong where Gray explains that the rulings are consistent:
The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42. (emphasis added)
https://www.law.cornell.edu/supremecourt/text/169/649
This was also evident to the Senators who discussed ratification; they undoubtedly understood that the children of non-citizen residents would become US citizens. I reviewed some of that discussion in this post:
http://www.debatepolitics.com/us-co...nderstand-constitution-10.html#post1066294443
Merely crying "NO!!!" does not magically make the sections I quoted go away, or change the actual content of the ruling, or change how Gray treated both rulings as consistent -- unless you know of some passage in Wong where he refutes the logic of Elk?
lol... Yes, except that it was a feature of US law until Dred Scott. From a Congressional Research Service article, which reviewed whether children born in the US to unauthorized immigrants:
For example, in an 1824 inheritance case, the Supreme Court proceeded on the assumption that
three girls born in the United States were citizens, although their father was an Irish citizen who
never naturalized. In 1830, the Supreme Court held that the law of England as to citizenship at
birth was the law of the English colonies, and that a person born in New York after the
Declaration of Independence on July 4, 1776 was a citizen of the United States, unless he was
born in British-occupied territory, left for England as a minor, and did not elect to affirm his U.S.
citizenship within a reasonable time after attaining his majority.
In another early case more
directly on point, Lynch v. Clarke, a New York court held in 1844 that Julia Lynch, born to Irish
aliens while they were temporarily sojourning in New York, was a U.S. citizen. In determining
the appropriate national law to apply, the Lynch court looked to the traditional English common
law doctrine of jus soli, holding that by the “law of the United States, every person born within
the dominions and allegiance of the United States, whatever were the situation of his parents, is a
natural born citizen.”
https://www.fas.org/sgp/crs/misc/R44251.pdf
{continued}
