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   and owing them direct and immediate allegiance.”[11] Elk did not meet   
   the jurisdictional test because, as a mem­ber of an Indian tribe at his   
   birth, he “owed imme­diate allegiance to” his tribe and not to the   
   United States. Although “Indian tribes, being within the territorial   
   limits of the United States, were not, strictly speaking, foreign   
   states,” “they were alien nations, distinct political communities,”   
   accord­ing to the Court.[12]   
      
   Drawing explicitly on the language of the 1866 Civil Rights Act, the   
   Court continued:   
      
   Indians born within the territorial limits of the United States, members   
   of, and owing immediate allegiance to, one of the Indian tribes (an   
   alien though dependent power), although in a geographical sense born in   
   the United States, are no more “born in the United States and subject to   
   the jurisdiction thereof,” within the meaning of the first section of   
   the fourteenth amendment, than the children of subjects of any foreign   
   government born within the domain of that government, or the children   
   born within the United States, of ambassadors or other public ministers   
   of foreign nations.[13]   
      
   Indeed, if anything, American Indians, as mem­bers of tribes that were   
   themselves dependent upon the United States (and hence themselves   
   subject to its jurisdiction), had a stronger claim to citizenship under   
   the Fourteenth Amendment merely by virtue of their birth within the   
   territorial jurisdiction of the United States than did children of   
   foreign nationals. But the Court in Elk rejected even that claim and in   
   the process necessarily rejected the claim that the phrase, “subject to   
   the jurisdiction” of the United States, meant merely territorial   
   jurisdiction as opposed to complete, political jurisdiction.   
      
   Such was the interpretation of the Citizenship Clause initially given by   
   the Supreme Court, and it was the correct interpretation. As Thomas   
   Cooley noted in his treatise, “subject to the jurisdiction” of the   
   United States “meant full and complete jurisdic­tion to which citizens   
   are generally subject, and not any qualified and partial jurisdiction,   
   such as may consist with allegiance to some other government.”[14]   
      
   The Supreme Court’s Wrong Turn in Wong Kim Ark   
      
   Despite the clear holding of Elk and the persua­sive dicta from   
   Slaughter-House that mere birth on U.S. soil is not sufficient to meet   
   the constitutional prerequisites for birthright citizenship, the Supreme   
   Court held otherwise in United States v. Wong Kim Ark,[15] with   
   expansive language even more broad than the holding of the case itself.   
   It is that erroneous interpretation of the Citizenship Clause, adopted   
   30 years after the adoption of the Fourteenth Amendment, that has   
   colored basic questions of citizenship ever since.   
      
   In Wong Kim Ark, Justice Horace Gray, writing for the Court, held that   
   “a child born in the United States, of parents of Chinese descent, who   
   at the time of his birth were subjects of the emperor of China, but have   
   a permanent domicile and resi­dence in the United States,” was, merely   
   by virtue of his birth in the United States, a citizen of the United   
   States as a result of the Citizenship Clause of the Fourteenth   
   Amendment.[16] Justice Gray cor­rectly noted that the language to the   
   contrary in The Slaughter-House Cases was merely dicta and therefore not   
   binding precedent.[17] He found the Slaughter-House dicta unpersuasive   
   because of a subsequent decision, in which the author of the majority   
   opinion in Slaughter-House had con­curred, holding that foreign consuls   
   (unlike ambassadors) were “subject to the jurisdiction, civil and   
   criminal, of the courts of the country in which they reside.”[18]   
      
   Justice Gray appears not to have appreciated the distinction between   
   partial, territorial jurisdiction, which subjects all who are present   
   within the terri­tory of a sovereign to the jurisdiction of that   
   sover­eign’s laws, and complete political jurisdiction, which requires   
   allegiance to the sovereign as well.   
      
   More troubling than his rejection of the persua­sive dicta from   
   Slaughter-House, though, was the fact that Justice Gray also repudiated   
   the actual holding in Elk, which he himself had authored. After quoting   
   extensively from the opinion in Elk, including the portion, reprinted   
   above, noting that the children of Indians owing allegiance to an Indian   
   tribe were no more “subject to the jurisdic­tion” of the United States   
   within the meaning of the Fourteenth Amendment than were the chil­dren   
   of ambassadors and other public ministers of foreign nations born in the   
   United States, Justice Gray simply held, without any analysis, that Elk   
   “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.”[19]   
      
   By limiting the “subject to the jurisdiction” clause to the children of   
   diplomats, who neither owed alle­giance to the United States nor were   
   (at least at the ambassadorial level) subject to its laws merely by   
   virtue of their residence in the United States as the result of the   
   long-established international law fic­tion of extraterritoriality by   
   which the sovereignty of a diplomat is said to follow him wherever he   
   goes, Justice Gray simply failed to appreciate what he seemed to have   
   understood in Elk, namely, that there is a difference between   
   territorial jurisdiction, on the one hand, and the more complete,   
   alle­giance-obliging jurisdiction that the Fourteenth Amendment   
   codified, on the other.   
      
   Justice Gray’s failure even to address, much less appreciate, the   
   distinction was taken to task by Justice Fuller, joined by Justice   
   Harlan, in dissent. Drawing on an impressive array of legal scholars,   
   from Vattel to Blackstone, Justice Fuller correctly noted that there was   
   a distinction between the two sorts of allegiance—“the one, natural and   
   perpet­ual; the other, local and temporary.”[20] The Citizen­ship Clause   
   of the Fourteenth Amendment referred only to the former, he contended.   
   He noted that the absolute birthright citizenship urged by Justice Gray   
   was really a lingering vestige of a feudalism that the Americans had   
   rejected, implicitly at the time of the Revolution and explic­itly with   
   the 1866 Civil Rights Act and the Four­teenth Amendment.[21]   
      
   Quite apart from the fact that Justice Fuller’s dis­sent was logically   
   compelled by the text and his­tory of the Citizenship Clause, Justice   
   Gray’s broad interpretation led him to make some astoundingly incorrect   
   assertions. He claimed, for example, that “a stranger born, for so long   
   as he continues within the dominions of a foreign government, owes   
   obedience to the laws of that government, and may be punished for   
   treason.”[22] And he was compelled to recognize dual citizenship as a   
   neces­sary implication of his position,[23] despite the fact that ever   
   since the Naturalization Act of 1795, “applicants for naturalization   
   were required to take, not simply an oath to support the constitu­tion   
   of the United States, but of absolute renuncia­tion and abjuration of   
   all allegiance and fidelity to every foreign prince or state, and   
   particularly to the prince or state of which they were before the   
   citizens or subjects.”[24]   
      
   Finally, Justice Gray’s position is incompatible with the notion of   
   consent that underlay the sover­eign’s power over naturalization. What   
      
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   --- SoupGate-Win32 v1.05   
    * Origin: you cannot sedate... all the things you hate (1:229/2)