Saturday, February 21, 2009

The confusion of Civil Rights and Civil Liberties

By using the correct terminology, many of the PRO sides arguments are nullified, but at the same time they are given some credibility. There is a confusion in which I hope to clear up. The following gives an idea of what it is that differentiates Civil Liberties (granted by the Constitution and the Bill of Rights) vs Civil Rights (based on certain legally-protected characteristics).

It is important to note the difference between "civil rights" and "civil liberties." The legal area known as "civil rights" has traditionally revolved around the basic right to be free from unequal treatment based on certain protected characteristics (race, gender, disability, etc.) in settings such as employment and housing. "Civil liberties" concern basic rights and freedoms that are guaranteed -- either explicitly identified in the Bill of Rights and the Constitution, or interpreted through the years by courts and lawmakers. Civil liberties include:

* Freedom of speech
* The right to privacy
* The right to be free from unreasonable searches of your home
* The right to a fair court trial
* The right to marry
* The right to vote

One way to consider the difference between "civil rights" and "civil liberties" is to look at 1) what right is affected, and 2) whose right is affected. For example, as an employee, you do not have the legal right to a promotion, mainly because getting a promotion is not a guaranteed "civil liberty." But, as a female employee you do have the legal right to be free from discrimination in being considered for that promotion -- you cannot legally be denied the promotion based on your gender (or race, or disability, etc.). By choosing not to promote a female worker solely because of the employee's gender, the employer has committed a civil rights violation and has engaged in unlawful employment discrimination based on sex or gender.

As you can now see, and hopefully understand, Civil Liberties are what are denied to Illegal Immigrants, however they may poses some Civil Rights. Legal Immigrants do retain Some Civil liberties while also receiving all Civil Rights.

The arguments of the PRO’s and Plausible Distinction

“Plausible Distinction” is the clause the PRO side uses to argue that legal/illegal status can not be determined by simply looking at a person. Sure, we can use deductive reasoning that they may be foreigners, but we can not determine if they are here legally or not.

Due to this argument, “Plausible Distinction”, the PRO side argues that “All persons within the USA are covered by the Constitution and the Bill of Rights”. To a certain degree that may appear to be true, at least up to the point of determining the legal/illegal status of a person. Once their status has been determined, it limits their coverage. The problem is that the PRO side confuses "Civil Liberties" with "Civil Rights" (see above post). A Citizen is granted full coverage of the Constitution (Civil Liberties and Rights), while a legal immigrant (a person here on a granted visa) does retain some basic liberties from the Constitution and civil rights, they are not granted full liberties. Once a person is determined to be in the USA without a legal granted visa or their visa has expired, they are denied all liberties by our Constitution, however they do retain certain civil rights. The civil rights (14th Amendment Equal Protection Clause) they have at that point are the rights granted to them by being "within the jurisdiction" of the United States, however that does not make them "subject to the jurisdiction of the United States.

The next argument is that all children born in the USA are granted automatic birthright citizenship. This is a perceived notion. The Federal Government does not issue birth certificates, the County Government of the State in which the child was born does. When a child is born, the Hospital issues a Certificate of Live Birth, the parent than fills out a form and submits it along with the Certificate of Live Birth to the local Government which then grants a Birth Certificate. The local Government does not question the status of the parents, thus they grant a Birth Certificate which is than accepted as documented proof of Citizenship for the child. SCOTUS has yet to have a case which determines the legality of this practice or if the State can ask for the parents legal status/documents without having reasonable suspicion and/or plausible distinction.

Let’s move on to law enforcement and the 287(g) Memorandum of Agreement. First, Local officers are limited in their ability to ask the legal status of persons, however they are not denied from asking under certain circumstances. An officer can ask for identification of all persons inside a vehicle or within an investigation, and if no documentation is offered, than due to “reasonable suspicion”, the officer can then proceed to determine the status of the persons in question. If found to be in the USA without proper documentation, can be held until an Immigration Officer picks him/her up from custody. 287(g) takes the “reasonable suspicion” out of the equation, simply because the officer who has 287(g) status is working in conjunction with the Federal Government as a Federal Immigration Officer. The guidelines for the 287(g) Officers grants them the ability to question suspected aliens about their immigration status, and can search them and their homes without warrants , nor do 287(g) officers have to read "aliens" Miranda rights. Arrested immigrants do have the right to a lawyer, but they will need to find and pay for the lawyer themselves.

Now, let’s look at E-Verify, which is 99.6% accurate in determining if a person can legally work within the USA. The PRO’s argue that because it is not 100% accurate it is a failure, but what they fail to accept is that the .4% inaccuracy is simply due to women/men who never changed their names on their Social Security Cards due to either marriage or divorce. This is something easily rectified once brought to the attention of the employee, which then has 90 days in which to resolve the issue. The PRO’s argue that employers should be able to hire whom ever they choose, while that may be good for the employer it is far from fair to the employee which if he/she is undocumented, is usually exploited by not getting company benefits if offered, less pay for the same work, and taken advantage of in ways that a legal worker could not be. We all agree the employers should be held accountable, yet the one tool that would do that, the PRO side does not want used.

Lastly, the claim that the Immigration System we have is unfair and not equitable to all is but another misconceived notion. Every person entering the US must have a Passport or equivalent to include American Citizens returning from abroad, our Government has the attitude that every single person on earth wants to become a Citizen of the US. It is required by every country worldwide now, to have a passport to enter. There are even countries that if you are an American Citizen, you are denied entry or at the very least heavily scrutinized prior to being granted entry. Canadians entering the US fall under the same rules as all others, max stay under 180 days, must present documents at border crossings, and can be denied entry due to many things. Canadians can not come and go as they wish, they are also not part of the Visa Waiver Program. I use Canada simply because the PRO side argues that Canadians have special privileges not granted others, yet Canada and Mexico are allotted the TN visa for which no other nationality can hold. Mexico is also given the highest entry on visa quota to the USA in the world. So I ask, how is our immigration system unfair to Mexicans, or for that matter immigrants in general? Because from what I see, Mexicans are granted privileges no other country in the world is granted, with the exception of Canada being given the same privileges as Mexico.

Wednesday, February 18, 2009

Apples to Apples

Here's what I see in the immigration debate. I will label them so that you can get a clear picture of each.

First, lets start with the Red Apple. I'll call this, the Non-Immigrant Status Violator, or Illegal Border Crosser, (IBC) for short.

Second, the Green Apple. I'll call this, the Violators of Conditions of Entry, or Visa Overstays, (VO) for short.

Third, the Yellow Apples. I'll call this, the immigrants that came here legally and are Legal Permanent Residents, (LPR) for short.

Now, when one discusses the topic of illegal immigration, one person is discussing the cause and effect of say the Red Apple, yet the counter to the argument brought up by the other person is always towards that of the Green Apple, and vise-versa. Why can't we have an intellectual discussion of only one apple at a time? Why is there always this dishonest comparison between the two apples? What complicates things even further is when someone tries to bring in the Yellow Apples and tries to mix the Red and the Green in with those. Then, if something is said to the fact that only the red apples are the ones that are being discussed by you, then you get labeled a racist, xenophobe, nativist, and other ignorant terms for not seeing an apple.

Only when the discussion can be about the specific color of the apple will this immigration dialogue continue with intellectual discourse. Only when people can see beyond the apple itself, realize that each color, Red, Green, and Yellow, all have different uses and flavors, will they be able to objectively discuss a solution to the apples themselves.

Tuesday, February 17, 2009

Illegal Immigrants "Civil Liberties" - DENIED!!

The jury has returned a "not guilty" verdict in regards to violation of civil liberties of the 6 remaining aliens in the lawsuit of Roger Barnett. There were a total of 16 Aliens to begin with, however 10 were dropped from the proceedings along with Barnett's wife and brother.
All six plaintiffs are citizens of Mexico, five of whom are living in the United States with visa applications pending, and the sixth resides in Mexico but was allowed into the U.S. for the trial, said Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund.

Here's the findings:
A federal jury found Tuesday that a southern Arizona rancher didn't violate the civil liberties of a group of illegal immigrants who claimed that he detained them at gunpoint in 2004.

The eight-member civil jury also found Roger Barnett wasn't liable on claims of battery and false imprisonment.

But the jury did find him liable on four claims of assault and four claims of infliction of emotional distress and ordered Barnett to pay $77,804 in damages - $60,000 of which were punitive.

Barnett declined to comment afterward, but one of his attorneys, David Hardy, said the plaintiffs lost on the bulk of their claims and that Barnett has a good basis for appeal on the two counts on which he lost.

Friday, February 13, 2009

Arapio vs the US House of Representatives Committee on the Judiciary

The US House of Representatives Committee on the Judiciary has sent over a letter to Janet Napolitano and Eric Holder concerning allegations of misconduct on the part of Maricopa County, Arizona, Sheriff Joe Arpaio, stating they believe merit federal investigation and action.

Basically what they are asking for is that MCSO lose 287(g) status and that Arpaio be investigated for civil rights violations.
Mr. Attorney General, we request that you direct the Special Litigation and Criminal Sections of the Civil Rights Division to undertake a federal investigation into the actions of the MCSO, under the authority of 42 U.S.C. S. 14141, the Civil Rights of Institutionalized Persons Act (CRIPA), 18 U.S.C. S. 242, and any other applicable federal statutes or Constitutional provisions.

Now, what exactly does 42 U.S.C. S. 14141 state:
(a) Unlawful conduct
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) [1] has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.

I see the following: "for the administration of juvenile justice or the incarceration of juveniles" which would lead one to believe persons under the age of 18. How many of these persons have been arrested by the MCSO??

How about 18 U.S.C. S. 242:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Again, from what I see, the key phrase is: "on account of such person being an alien". It will depend on how Holder defines alien.

Now, what about the 287(g) status:
Madame Secretary, we request that you review Maricopa County's agreements with the Department of Homeland Security under section 287(g) of the Immigration and Nationality Act and take such action as necessary to ensure that the MCSO conforms to the terms of that agreement and that such agreement is not used to justify the racial profiling of any Residents of Arizona. We urge that such agreement be terminated if the situation can not be remedied. We further request that you immediatly provide to the Committee a copy of any agreement between the DHS and the County, whether under Section 287(g) or any other provision of law, such as intergovernmental service agreements to house apprehended immigrants.

In 1997, Attorney General Janet Reno filed a lawsuit against Arpaio for allegedly violating the constitutional rights of prisoners in his jail. The lawsuit was eventually settled after the sheriff agreed to improve conditions.

At the time, Napolitano was U.S. attorney for Arizona with ambitions of running for Arizona attorney general. She joined Arpaio, who at the time enjoyed approval ratings near 80 percent, at a news conference and undermined Reno by declaring the lawsuit a "technicality" and dismissing it as little more than "a lawyer's paper." Arpaio threw his support behind Napolitano, which helped her get elected.

The duo quarreled a bit when Napolitano took away $1.6 million in state funds slated to help Arpaio fight illegal immigration. But now the funding has been restored.

So just how will Napolitano rule? What about Holder? What violations were actually commited by Arpaio by moving the "Deportable Aliens" to their own 'tent city'?

Wednesday, February 11, 2009

The Happy Meal Metaphore

I must be making it big. I've been "discovered" by the HispanicBusiness Forum. I would like to thank Fake Tony for providing a link to my blog and the topic "The 'Stolen Land' Argument". I've noticed a few additional hits that have came from the link, so again I say thank you.

Since I'm not a registered member of the HB forums and can not directly receive the insult from one commenter there, Tony Cheek: "How does linking to a whackjob web site put anything into perspective? Except the sad ramblings of a man a fry or two shy of a Happy Meal?", I will discuss it here.

First, I see you directly attack me as a typical response attributed to your own ignorance. I'm sorry I don't believe in your "Chicano Studies".

Second, you obviously didn't read the article, or if you did, you had no response to it, which again is typical of someone who agrees with what is said.

Third, you consider me a "whackjob" simply because I am pointing out all the things wrong with the PRO CIR arguments from the view point of an American Citizen against Illegal Immigration. You seem to be making many assumptions about me based on my header.

So, if there is something you don't agree with in my posts or my topics, please feel free to leave a comment and be open to objective discussion.

Tuesday, February 3, 2009

The Constitution of the United States, a Living Document?

The United States has historically served as a shining example of Rule by Law in the world.

America is the first nation state openly to be predicated on the concept that a nation should be established under the proposition that all men are created equal, all should enjoy equal opportunities and equal protection under the Law, and that it is the primary duty of the State to protect these God-given rights to its Citizens.

In the Declaration of Independence, that basic premise looks like this:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

In all other nation states existant at that time, rights were defined and controlled by a certain class of peoples. The presumption was that this class alone was competent to determine whether certain actions were acceptable by all people, and to decide what rights (pick and choose according to the prejudices of the ruling class) should be 'granted' to the people who were not members of the ruling class.

The United States of America has prospered during the last part of the 18th Century ... since the Constitution of the United States was proposed and accepted as Law.
The Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America; the Federal Government of the United States; and all the State & local governments and Territorial Administrative bodies contained therein. It provides the framework for the organization of the United States Government. The document defines the three main branches of the government: The legislative branch with a bicameral Congress, an executive branch led by the President, and a judicial branch headed by the Supreme Court. Besides providing for the organization of these branches, the Constitution carefully outlines which powers each branch may exercise. It also reserves numerous rights for the individual states, thereby establishing the United States' federal system of government. It is the shortest and oldest written constitution of any major sovereign state.

A Lesson in Civics:
Part of our prosperity was because the principle of Capitalism was protected: it encouraged economic growth, and it also encouraged abuse of the freedoms which were central to the basic philosophy of a Free People in a Free Nation. At the same time, as the Citizens of the country learned that some controls were necessary to prevent these abuses, the laws were changed (by an established Legislature) to protect the Rights of its Citizens while continuing to encourage economic growth, and prosperity not only for capitalistic entrepreneurs but for the common working man.

Much of this growth was painful: national expansion resulted in abuse of Native Americans; the desire for 'cheap labor' encouraged the Slave Trade; as more immigrants reached our shores we discovered that Big Business was abusing the Rights of new Citizens to earn a wage commensurate with their labors.

Protection for Native Americans arrived late in America, as did the rights of those who were brought to these shores as indentured servants, and as outright slaves. We fought a Civil War (in part) to free our country of outright and economic slavery; the rights of Native Americans was never adequately addressed, to our everlasting shame and sorrow. Today, Native Americans are not specifically provided with federal protection despite a plethora of Treaties which vowed concessions to this class of citizens "as long as grass grows or water runs".

But most of the wrongs we did were addressed by changing the Laws of the Nation, which continued even to the Constitutional Level until, in 1863 (during the Civil War) President Lincoln signed the Emancipation Proclamation. (It was flawed, but it was significant as a step to repealing the right of one man to legally possess another.)

In the nineteenth and twentieth Centuries, we addressed the rights of Labor. Congress ("the Legislature") was slow to recognize the societal wrongs implied and explicit in Capitalism vs Labor, and Labor Unions were formed ... not usually in a peaceful manner. Eventually, the Nation recognized that Capitalism was fraught with peril in an unregulated society, and federal laws were proposed and enacted to protect laborers in America.

The recent outcomes:
Today we are on the threshold of revaluing another Constitutional Right: The Second Amendment.

In DC v Heller, the Supreme Court of the United States is tasked with interpreting the United States Constitution to determine whether the Second Amendment is an Individual Right or a States Right.


The Second Amendment is one of the original Ten Amendments which constitute the Bill of Rights.

Let's talk about the Amendments to the Constitution.

During the Constitutional Process, Congress addressed societal issues which, in the opinion of the original Framers of the Constitution, had not been made clear. The goal was to enumerate specific Rights which were "Granted by God", not 'granted by the state'. (This was an expansion on the original acknowledgments in the Declaration of Independence: " ... that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ... ".)

The Bill of Rights refers to those rights of "... all men..." not as new 'rights', but as an enumeration of rights already in place; granted by God, not by The State. Specifically, The State (The Nation, not individual states) did not grant these rights, but the Federal Government only acknowledged them on behalf of 'All States'.

The United States Constitution, according to some scholars, is not subject to interpretation other than in the context which existed at the time it was originally enacted.

Witness the Eighteenth Amendment (establishing Prohibition of the 'manufacture, sale or importation of spirituous liquors') and the subsequent Twenty-First Amendment (repealing Prohibition), both of which addressed the issue of Liquor Control. These two amendments addressed a 'societal problem' in which the cure was empirically found to be worse than the problem.

How different is 'Liquor Control' from 'Gun control'?

Well, that is a subjective definition, but it does serve to demonstrate a few facts of the American Constitutional Process.

First, the Constitution is not a 'Living Document', and if you don't like the way the Constitution does NOT restrict Civil Rights, the historically acceptable solution is not by Judicial Fiat; the 'right' way to change it is by legislation.

Second, if 'Judicial Fiat' is accepted as a legitimate manner to change the meaning of the Constitution, there exist no legitimate for the 'Will of the People' to change this interpretation. The Judiciary has already been given unconstitutional powers due to the opinion of a few judges, and the Will of the People is undermined ... as is the power of the Legislature to enact a change in Federal Law (the Constitution) by non-Judicial means.

Third, (and as a sub-set of the 2nd point) by defining the Constitution as a "Living Document", the Balance of Power (specifically and by implication) in the Federal Government loses its ability to 'Check and Balance' one branch of Government against another. This is explicitly and obviously contrary to the intention of the Founding Fathers.

Other Constitutional Amendments provided a further expansion to include "all women" (by enacting the XIX amendment in 1920). This served as an excellent illustration of the way that constitutional amendments ... not judicial activism ... has always before been understood to be the acceptable means to 'modernize' the Constitution to include a more liberal interpretation of rights, not to restrict rights.

Finally, a comparison of the progress of the XIX amendment with the proposed "Equal Rights Amendment" (ERA) is an example of a constitutional amendment which was widely lobbied for, but failed to gather sufficient votes from the states to be ratified. The ERA sounded reasonable on its face, and Congress was ready to ratify it. However, a grass-roots campaign forced state legislators (and the general public) to look beyond the emotional furor and understand the likely consequences of its ratification. Today we see some of the same issues which we dodged back in 1977 are again being proposed at the state level (most tellingly in California) -- to the general public distaste across the country.

The attempt to use the Supreme Court to change the Constitution by 'interpretation' is intrinsically flawed.

If the Constitution is perceived to no longer meet the needs of Modern Society, an attempt to change the "Interpretation" of the Constitution is in and of itself unconstitutional.

The only legitimate and legal way to change the 'interpretation' of the Constitution at this point is Legislative, not Judicial.

That is, the Supreme Court of the United States does not have the Constitutional Power to legislate on this question; the Supreme Court should decline to rule in opposition to the Second Amendment, or at a minimum should find that this is an Individual Right as opposed to being a "Collective Right".

If the Legislature opposes this definition, it is empowered to propose, lobby for, and legislate an Amendment to the Constitution ... which must be ratified by the states.

The United States' Government has no powers which are not granted by the Constitution. Any attempt to end-run these powers should be viewed as an attempt to usurp the rights of the Citizen, and treated accordingly.

Sunday, February 1, 2009

Hypocrisy and the 14th Amendment - twofer.

This is what you call a hypocrite, people.
Dee said...

Good Ole Liquid. Stated proof by wikipedia, the revisionist view of history you choose to believe.

And yet, if you look on her blog, she gives an answer to the 14th Amendment, from where you ask?? Wiki. the revisionist view of history she chooses to believe, only she changes the paragraph to fit her agenda, shown below.
Why dont you read the case law:

Wong Kim Ark[1] (黃金德; Toisanese: wong11 gim33 'ak3; Cantonese: wong4 gam1 dak1; Mandarin: huáng jīn dé) was born in San Francisco, California, sometime between 1868 and 1873.[2] His father, Wong Si Ping and his mother, Wee Lee[3] were immigrants from Taishan, China and were not United States citizens.

In 1890 Wong's parents returned to live in China. Later that year Wong himself traveled to China and, having returned, was granted entry "upon the sole ground that he was a native-born citizen of the United States". Four years later, however, the circumstances had changed, as Wong, who was employed in San Francisco as a cook, sailed to China on another temporary visit in 1894. When he returned to the U.S. in August 1895, he was detained at the Port of San Francisco by the Collector of Customs and denied permission to enter the country "...because the said Wong Kim Ark, although born in the city and county of San Francisco, state of California, United States of America, is not, under the laws of the state of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons, and subjects of the emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China."

The Supreme Court, in the Wong Kim Ark case, was called upon to decide whether an American-born person of Chinese ancestry could constitutionally be denied U.S. citizenship and excluded from the country.

Held: In a 6-2 decision, the Court held that under the Fourteenth Amendment, a child born in the United States of parents of foreign descent, at the time of the child's birth, BECOMES A CITIZEN of the United States at the time of birth.




January 31, 2009 6:29 PM

Do you see where she states the OPINION of the Held 6-2? Here is the actual paragraph from the wiki she has spun to fit her agenda:
Held: In a 6-2 decision, the Court held that under the Fourteenth Amendment, a child born in the United States of parents of foreign descent who, at the time of the child's birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of United States territory, becomes a citizen of the United States at the time of birth.
As you can clearly see, not quite what she says it says.

The only problem is that she fails to paste the more relevant information, such as the following:
It has been suggested by some critics of U.S. citizenship policy relating to U.S.-born children of illegal immigrants that Wong Kim Ark does not hold such children to be U.S. citizens, because Wong's parents were legal non-citizen residents of the United States at the time of his birth.[7] Those advocating this view assert that a subsequent case before the courts, dealing with U.S. born children of undocumented immigrants, would easily be distinguished from Wong Kim Ark by virtue of this difference in the parents' legal status. Proponents of the conventional view argue that the Wong Kim Ark majority defined the "jurisdiction" exception to the jus soli rule very narrowly; that references in the majority opinion to the legal resident status of Wong's parents were obiter dicta and not an essential part of the holdings of the case; that the court majority's reason for mentioning the legal resident status of Wong's parents was simply to illustrate that they were in the United States as ordinary people and not as representatives of a foreign government; and that the 1982 Plyler case affirmed the conventional, mainstream interpretation of Wong Kim Ark with regard to the question of what being "subject to the jurisdiction" of the United States means. In the end, no one can really know how the Supreme Court might rule in a new case challenging the citizenship of U.S.-born children of illegal immigrants until and unless such a case were actually heard, and ruled upon, by the court.

Also note that Wong Kim's parents were here and given LPR status through the Burlingame Treaty of 1868, and that Wong Kim himself was born between the years 1868 and 1873 as pointed out by Dee above:
The Burlingame Treaty, between the United States and China, amended the Treaty of Tientsin and established formal friendly relations between the two countries, with the United States granting China Most Favored Nation status. It was ratified in 1868.

The treaty:

* Recognized China's right of eminent domain over all her territory;
* Gave China the right to appoint consuls at ports in the United States, "who shall enjoy the same privileges and immunities as those enjoyed by the consuls of Great Britain and Russia";
* Provided that "citizens of the United States in China of every religious persuasion and Chinese subjects in the United States shall enjoy entire liberty of conscience and shall be exempt from all disability or persecution on account of their religious faith or worship in either country"; and
* Granted certain privileges to citizens of either country residing in the other, the privilege of naturalization, however, being specifically withheld.

Importantly, Chinese immigration to the United States was encouraged. Opposition in Congress to Chinese immigration led President Rutherford B. Hayes to authorize James Burrill Angell to renegotiate the treaty in 1880. The treaty was amended to suspend, but not prohibit, Chinese immigration, while confirming the obligation of the United States to protect the rights of those immigrants already arrived. [1]

The treaty was reversed in 1882 by the Chinese Exclusion Act.

Take note from the wiki page on the 14th Amendment:
The distinction between "legal" and "illegal" immigrants was not clear at the time of the decision of Wong Kim Ark.[3] Neither in that decision nor in any subsequent case has the Supreme Court explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the Amendment,[4] although it has generally been assumed that they are.

So, is it possible, that after all this information, that the precedence could be challenged in court overturning the common perception of the citizenship clause? I say look to Dr. John C Eastman.