Trump v. Barbara · ¶144

In 1898, as noted above, Wong Kim Ark interpreted the Fourteenth Amendment’s “subject to the jurisdiction” language to provide a general right of birthright citizenship with four disparate exceptions—for “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory” and “children of members of the Indian tribes.” 169 U. S. 649, 693. Importantly, Wong Kim Ark indicated that the four exceptions were a closed set, id., at 682, 693—meaning that there can be no additional exceptions recognized based on subsequent circumstances or developments. And the decision has consistently been read that way, including by plaintiffs and the Court today. But Wong Kim Ark’s treatment of the exceptions as a “closed set” is incorrect, in my view. Considering the four exceptions as a permanently frozen or…

slip opinion, revised 7/01/26
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