(This is actually Part 2 of a multi-part series. Please scroll down (or link from the left panel) to read these posts in the proper sequence. It all flows from a post on “Straw Men, Red Herrings, and Big Lies” and the comments attached so to really understand it all, you need to read that one too.)
(CONTINUED FROM PART 2)
The reasoning that Ellen and others follow arises, in part, from the Supreme Court opinion in U.S. v. Wong Kim Ark (1898). As noted before, Wong Kim Ark was born in the United States in 1873. His parents were Chinese immigrants and permanent legal residents of the United States, but were not U.S. citizens. In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled, in a 6 to 2 decision, that Wong acquired U.S. citizenship at birth. The opinion in that case read in part:
“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent[s] of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. (Horace Gray, Majority Opinion, U.S. v. Wong Kim Ark, 1898).”
Please note the carefully crafted wording in the decision and note it as much for what it does NOT say as for what it does.
- The Supreme Court did not rule that Wong was a natural born citizen. It merely ruled that he was a citizen.
- The Court ruled that Wong was a citizen because, at the time of his birth, his parents had “permanent domicile and residence” in the United States and was “carrying on business” in the United States. President Obama’s father did not meet these conditions. He was not a permanent resident. He was visiting the U.S. temporarily, to obtain an American education.
- The Court mentioned that Wong’s parents were subject to the Burlingame-Seward Treaty of 1868 between China and the United States. That treaty contains an unusual provision, not found in other U.S. treaties, which grants Chinese immigrants the right to change their “home and allegiance”. Although permanently-resident Chinese immigrants were not permitted to become naturalized U.S. citizens, they had (at least in theory) the right to become “nationals” of the United States; and children born in the United States, of U.S. “nationals”, are citizens within the originally-intended meaning of the 14th Amendment (Objectively Gray). Obama’s father was not subject to any treaty which recognized a change of “home and allegiance” other than by naturalization.
In the majority opinion, Justice Horace Gray cited sources which seem to suggest natural born citizenship requires something more than birth on U.S. soil. For example, he quoted the following from Minor v. Happersett (1874):
“At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts.” (Minor v. Happersett (1874), as quoted in U.S. v. Wong Kim Ark (1898))
Justice Gray also quoted from an article, by Horace Binney, which used the term “natural born” in connection with a child of a U.S. citizen, but not in connection with a U.S.-born child of an alien. In Binney’s opinion, both children were U.S. citizens, but only the U.S.-born child of a citizen was labeled “natural born”:
The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. (Binney (2nd ed.), as quoted in U.S. v. Wong Kim Ark (1898))
The 14th Amendment theorists are quick to point out their interpretation of The Court’s Reasoning. i.e. that even though the Court did not hold (or rule) that natural born citizenship is determined by birthplace alone, Justice Gray’s reasoning seems to support that conclusion.
- Under English common law, all children born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects. According to Justice Gray, this English common law rule “continued to prevail” under the Constitution, suggesting that the jus soliprinciple of English common law controlled the Constitutional meaning of natural born citizen.
- Justice Gray cited Lynch v. Clarke (1844), in which Vice Chancellor Sandford had ruled that Julia Lynch was a U.S. citizen at birth. Miss Lynch was born in New York, but at the time of her birth, her parents were not U.S. citizens. In his dicta, the Vice Chancellor expressed his opinion that Julia Lynch was a natural born citizen. (See Question 16: Julia Lynch)
- Justice Gray also cited Circuit Court Justice Swayne’s opinion in United States v. Rhodes (1866). According to Justice Swayne, the term “natural-born citizen” should be interpreted and understood according to English common law: All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. … We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution. (Justice Swayne, as quoted by U.S. v. Wong Kim Ark, 1898)
As those familiar with the law know, often the dissenting opinion is as important as the ruling and frequently forms the basis for challenges and overturning of precedence. In the dissenting opinion in U.S. v. Wong Kim Ark, Justice Fuller mentioned natural born citizenship:
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not. (C.J. Fuller, Dissenting Opinion, U.S. v. Wong Kim Ark, 1898)
And from a legal and logical standpoint there are problems with Justice Gray’s reasoning in my opinion. Among the facts directly opposing the Supreme Court’s reasoning in U.S. v. Wong Kim Ark:
- Justice Gray ignored (deemed “not admissible”) the transcripts of the 1866 congressional debates, which provided direct evidence as to the meaning of “jurisdiction” in the 14th Amendment;
- Justice Gray relied on an erroneous footnote in an article by Horace Binney;
- Justice Gray misrepresented four prior Supreme Court rulings, none of which supported his contention;
- Justice Gray ignored the fact that, in 18th-century English law, the terms “subject” and “citizen” were not synonymous — the manner in which one became an English subject by birth was not the same as the manner in which one became an English citizen by birth.
OK, so that is a pretty bold statement; for a layman observer to challenge a justice’s reasoning. But we must never forget, at least until the present administration, it was the government who worked for us not the other way around. The justices, just like representatives and the president, at least back int he day of this decision, worked for the people so the people have a right to question them.
(1) Justice gray ignored (deemed “not admissible”) the 1866 congressional debates:
In his written opinion, Justice Gray admitted that his understanding of the word “jurisdiction” in the 14th Amendment was based on presumption, not direct evidence. The transcripts of the 1866 congressional debates, in which the Framers clearly explained the meaning of “jurisdiction” in the 14th Amendment, were ruled “not admissible”. What? That was central to the case and it was inadmissible?
The words ‘in the United States, and subject to the jurisdiction thereof,’ in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment … as the equivalent of the words ‘within the limits and under the jurisdiction of the United States’… Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. (Wong Kim Ark, 1898).
The Supreme Court did not consider evidence showing that the intended meaning of “jurisdiction” was sole and complete jurisdiction, i.e., not subject to any foreign power. (For a discussion of the originally intended meaning of “jurisdiction” in the 14th Amendment, see Question 14: Jurisdiction). This questioning of the ruling did not start with me by any means. According to the Federalist Blog, the Court’s refusal to consider such evidence was “inexcusable”:
“A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.” (Justice John Paul Stevens, as quoted by Madison(2006))
(2) Justice Gray’s reasoning relied on an erroneous footnote in an article by Horace Binney. Ellen said I could not rely on as research by one writer (which I have not) but then used a quote of his against me. Well she was right about having to check for consistency for reliance on writers and here is such an instance. There were three published editions of Horace Binney’s article, The Alienigenae of the United States and there were some substantive differences. The first two editions were published in December 1853. The Third (Final) Edition was published in the American Law Register in February 1854.
All three editions cited the Naturalization Act of 1790, which states:
And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: (Naturalization Act of 1790; emphasis added).
Here is one big problem… In the first two editions of Binney’s article, the Naturalization Act of 1790 was quoted incorrectly:
[T]hat the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States shall be considered as natural born citizens — with a proviso, that the right of citizenship shall not descend to persons who had never been resident in the United States. (Misquote of Naturalization Act of 1790, in Binney (2nd ed.), p.21, emphasis added).
In the misquoted text, foreign-born children do not receive U.S. citizenship solely by descent from their parents. Rather, these children’s U.S. citizenship depends on their subsequent residence in the United States. Based on the misquoted text, Binney added a footnote asserting that descent, by itself, is never sufficient to confer U.S. citizenship at birth:
The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle. (Binney (2nd ed.), footnote, p.22).
Justice Gray cited Binney’s footnote, both in the Opinion of the Court and in the Court’s ruling. But here is the problem, Binney’s footnote was factually incorrect, in large part because it was based on an incorrect quote of the 1790 Naturalization Act. In the final edition of Binney’s article, the 1790 Naturalization Act was quoted correctly and the footnote was deleted).
(3) Justice Gray misrepresented earlier Supreme Court rulings:
Justice Gray’s reasoning relied on four prior Supreme Court rulings:
- Inglis v. Trustees Of Sailor’s of Snug Harbor, 28 U.S. 99 (1830);
- Shanks v. Dupont, 28 U.S. 242 (1830);
- Levy v. McCartee, 31 U.S. 102, 109 (1832); and
- McCreery v. Somerville, 22 U.S. 354 (1824).
Justice Gray misrepresented all four of these rulings. None of them supports his contention (See Appendix 5: Wong Kim Ark reasoning).
(4) Justice gray ignored the fact that, in 18th-century England, the manner in which one became a “subject” by birth was not the same as the manner in which one became a “citizen” by birth.
Justice Gray quoted a North Carolina state supreme court opinion:
Before our Revolution, all free persons born within the dominions of the king of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. … Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European king to a free and sovereign state. … British subjects in North Carolina became North Carolina freemen; … and all free persons born within the state are born citizens of the state. … The term ‘citizen,’ as understood in our law, is precisely analogous to the term ‘subject’ in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from the man to the collective body of the people; and he who before was a ‘subject of the king’ is now ‘a citizen of the state.’ (Justice Gaston, State v. Manuel (1838) 4 Dev. & b.20,24-26, as quoted in U.S. v. Wong Kim Ark).
When the thirteen colonies became independent states, some of them (including North Carolina) chose to base their citizenship laws on the jus soli principle of English common law. This choice was a matter of convenience. It was not dictated by English common law or convention.
(CONTINUED IN PART 4)