Was U.S. vs. Wong Kim Ark Wrongly Decided?

by P.A. Madison on December 10th, 2006

In reading the majorities opinion in Wong Kim Ark, one cannot help but wonder why so much emphasis is being placed on such obscure and irrelevant historical overviews as colonial and foreign law. With two previous court decisions, a United States Attorney General Opinion over the meaning of the Fourteenth’s citizenship clause, and law previously made over alien citizenship via birth, leaves one to wonder what is going on here?

Deeper into the decision, Justice Horace Gray (writing for the majority) reveals exactly what the majority is up to: They are attempting to avoid discussion over the construction of the clause by the two Senators whom are most responsible for its language found under the Fourteenth Amendment, Jacob M. Howard and Lyman Trumbull. They are also attempting to keep their prior adjudication to what “subject to the jurisdiction thereof” means in Elk v. Wilkins out of the discussion or else Wong Kim Ark can’t be said to be a citizen of the United States.

It is clear the Wong Kim Ark majority recognized the only viable approach to the conclusion they sought was to somehow distant themselves from the recorded history left behind by the citizenship clause framers. Justice Gray made no attempt to hide this fact when he wrote: “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.

Whatever credibility the court may had at the beginning was soon lost when Gray wrote:

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…”

Here the court is assuming what Congress may have intended while also arguing the written debates that could easily disclose this intent is inadmissible as evidence. This has to be one of the most incompetent and feeble rulings ever handed down by the Supreme Court. Justice John Paul Stevens would take issue with this inept attempt by the majority to rewrite the Constitution: “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.”

Reviewing the intended purpose behind the words of the clause by both Sen. Howard and Sen. Trumbull, who were responsible for the drafting of the citizenship clause, clearly revealed the intended effect of the clause; leavening little doubt to why justice Gray desired to avoid the legislative history of this language. Howard presents a major hurdle for the majority when he specifically declared the clause to be “virtue of natural law and national law,” never once making any reference to England’s common law doctrine. Perhaps this is why Gray wasted much of his commentary along common law themes.

An Act of April 9, 1866 established for the first time a national law that read, “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” Rep. John A. Bingham, chief architect of the 14th Amendments first section, said this national law (Section 1992 of the US Revised Statutes) was “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this law was simply to reaffirm the common law doctrine then the condition of the parents would be totally irrelevant.

Sen. Trumbull, who was the author of this national law, said it was his intention “to make citizens of everybody born in the United States who owe allegiance to the United States.” Additionally, he added if a “negro or white man belonged to a foreign Government he would not be a citizen.”

However, Gray insists Trumbull really meant to grant citizenship to everyone born due only to the fact they were born on American soil. Moreover, if everyone owed allegiance by simply being on American soil, then what was the purpose of having aliens renounce their allegiance to other countries and pledge their allegiance to this one for purposes of becoming naturalized? Perhaps the true answer is because locality itself was never enough to confer complete allegiance.

Speaking of the Fourteenth Amendment, Sen. Trumbull goes on to declare: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.

Sen. Howard follows up by stating, “the word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

The Supreme Court had earlier discussed the meaning of the 14th amendment’s citizenship clause in the Slaughterhouse cases and noted, “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

Even the dissenting minority affirmed that the result of the citizenship clause was designed to ensure that all persons born within the United States were both citizens of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power. The United States Attorney General (who was a Republican Senator involved in the adoption of the Fourteenth Amendment in 1866) in 1873 ruled the word “jurisdiction” under the Fourteenth Amendment to mean:

The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them. (14 Op. Atty-Gen. 300.)

In Elk v. Wilkins, 112 U.S. 94, the court was specifically asked to address “subject to the jurisdiction thereof,” and held it meant:

The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them (U.S.) direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.

Here we have the framers, the Attorney General and the Elk court all agreeing that “subject to the jurisdiction thereof” means political attachment. The question begs, what happened to the adopted meaning?

In Wong Kim Ark the court made a weak attempt to marginalize its holding in Elk on the grounds that decision “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.”

In truth the adjudicated meaning of “subject to the jurisdiction” in Elk did in fact have the “tendency to deny citizenship to children” because it applied to all persons born whether Indian, Asian or any other race. The real question is which court was the question of “subject to the jurisdiction” part of the court’s holding?

The answer is, Elk. In Wong Kim Ark the definition of “subject to the jurisdiction” was not part of the holding but only passing dicta.

The definition for “subject to the jurisdiction thereof” handed down in Elk posed a real problem for Wong Kim Ark because Wong’s parents did not owe the United States direct and complete allegiance nor did they fall within the political jurisdiction. To try and sidestep the judicial meaning of “subject to the jurisdiction” found in Elk, Gray attempts to obfuscate the meaning of “subject to the jurisdiction thereof” using dicta:

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…

Unfortunately for Gray, he can’t unmake history nor can he hide from what he had ruled in Elk. Again, Kim Ark was not born into the allegiance of the United States, his parents had no political attachment, and his parents were subject to treaties in the same way that Indians were.

When all was said and done, the majority in Wong Kim Ark reveals their true nonsensical position: “To hold that the Fourteenth Amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.

That statement pretty much removes all doubt whether the Wong Kim Ark court had any idea what they were talking about.

The court in Minor vs. Happersett (1874) acknowledged that some, not all, but some authorities go as far to “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 [born to American citizens].”

It was these kind of doubts Howard desired to settle through constitutional amendment. Sen. Howard said of the amendment: “It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” This was needed to prevent rebel States from refusing to recognize former slaves (now citizens) as citizens of the United States under the Fourteenth’s first section (privileges and immunities).

Furthermore, these former slaves could be said to had no political attachment to any other country – meaning they did not owe “allegiance to anybody else.” To add additional insult, the court says: “Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.” Yet, the court refused to recognize the fact the United States had done just that through its revised statutes and Constitution.

Gray asserts the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens…”

Couple of factual problems with this assertion. One, resident aliens were required to take an oath of allegiance to some State and declare intent to become citizens with all other aliens deemed transient where statutes in most states prohibited citizenship to their children born within the their limits including District of Columbia. Two, courts have always held change of location never makes any change to one’s allegiance. This fact prohibits the argument an alien being within the territory magically changes an aliens pre-existing allegiance.

So Gray’s assertions here are just plain false on their face.

The most significant truth to come out of the entire Wong Kim Ark ruling comes from Chief Justice Fuller himself when he said, “the words ‘subject to the jurisdiction thereof,’ in the amendment, were used as synonymous with the words ‘and not subject to any foreign power.’” He was absolutely correct.

Only reason the language of the Fourteenth differs from the civil rights bill of 1866, which used the language “and not subject to any foreign power, excluding Indians not taxed” to restrict citizenship, is because Sen. Howard feared a State could begin taxing Indians, thereby making them eligible for citizenship. Because Indians, and other classes of foreigners whom Congress and the States desired to withhold citizenship from, owed allegiance to a foreign power (Indian tribes were considered independent nations), the Fourteenth would become just as restrictive against Indians by demanding full jurisdiction on part of the United States as with any other class of foreigners.

It is worth mentioning that it was the U.S. government who argued Wong Kim Ark was not born subject to the jurisdiction of the United States. Obviously, the Federal Government had no difficulty in understanding the words of its own revised statutes or constitutional amendment.

For the majority to have been correct with their conclusion they would have to demonstrate how it was possible the States and Federal Government retained England’s “natural allegiance” doctrine. This “natural allegiance” was something most everyone despised and hated. Fuller argued this “rule making locality of birth the criterion of citizenship because creating a permanent tie of personal allegiance to the King, no more survived the American Revolution than the same rule survived the French Revolution.

There is also a disturbing ethical aspect of Wong Kim Ark in terms of the majorities’ apparent willingness to place themselves unethically above both facts and the supreme law of the land. The United States by treaty with China was prevented from admitting Chinese subjects to citizenship. This treaty was ratified by the same senators who had adopted both Section 1992 of the US Revised Statutes and the Fourteenth Amendment.

Furthermore, the court was also prohibited under 22 Stat. §14 to admit subjects of China to U.S. citizenship, “that hereafter no state court or court of the United States shall admit Chinese to citizenship, and all laws in conflict with this act are hereby repealed.

The Fuller court was no stranger to criticism or controversy when it came to interpreting law or the Constitution. For example, in the cases of Brooks vs. Codman, and Foote v. Women’s Board of Missions the question was who should get the money appropriated as indemnity for spoliations of William Gray’s (Justice Gray’s grandfather) ships? Codman was the administrator of William Gray’s estate and under a 1891 law payments could only go to “creditors, legatees, assignees or strangers to the blood.”

What did the court do? They did just as they had done in Wong Kim Ark; they simply said forget what the law says because we think payments should go to the “next of kin,” i.e., Justice Horace Gray.

Conclusion

The ruling in Wong Kim Ark is of little relevance to the question surrounding the meaning of “subject to the jurisdiction” since that was not the question before the court as it was in Elk. Whatever one wants to make of the Wong Kim Ark ruling it will have little bearing over questions of whether aliens who have no political attachment to the country can be born born subject to its jurisdiction.


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44 Responses | Leave a Comment
  1. Clay R. says:

    Wong Kim Ark’s interpretation methodology has been overturned so many times with the court holding constitutional text interpretation must include intent of the framers as well as usage of law previously made. Gray deliberately ignored framers intent and existing law on the subject. Crazy shit.

  2. Jacob says:

    I agree Elk is the prevailing ruling to follow because “subject to the jurisdiction” was the question before that court while in Ark it is non-binding dicta.

  3. Warren Hathaway says:

    In his work, “Blunders of the Supreme Court of the United States, Part 3″ (online), the author, Dan Goodman, shows with cases from the Supreme Court of the United States that the political jurisdiction of the United States does not extend to the several States, but only to the District of Columbia, its territories and possessions, and federal enclaves with the several States of the Union and that one born in a State of the Union is subject to the political jurisdiction of that State and not that of the United States.

    So birthright citizenship does not apply to the several States of the Union!

    This article can be read at these two links:

    http://www.docstoc.com/docs/81552988/Blunders-of-the-Supreme-Court-of-the-United-States-_-Part-3

    http://www.scribd.com/doc/57701755/Blunders-of-the-Supreme-Court-of-the-United-States-Part-3

  4. I do not know if it funny or sad to watch a bunch of folks trying to tap dance with legalise what they would normally spit out at their friends at the bar or water cooler in a short phrase like, “They should have kept {insert derogatory reference to a particular group of people} out, you know?”

    I find it even funnier that the things we celebrate in the Constitution and Bill of Rights seem only to apply to “the folks that were originally here… but not Indians”.

    • A2S1C5 says:

      Matthew A. Sawtell – the only discriminatory comments here are your own. Imagining racist rantings of individuals who are talking of nothing to do with race is, in itself, bigoted. The group to which children belong has nothing to do with it. The question is whether their parents were citizens or under the full jurisdiction of the US. Asking a citizen from birth to have allegiance to the US only is NOT dsicriminatory. We ask the same of white, brown, yellow, green and purple. Get off of your soapbox and look in the mirror to find the true bigot.

  5. MR. X says:

    Obama is NOT a NATURAL born citizen. He has parents of differing citizenships. Via his mother he may be a STATUTORY U.S. citizen at birth, but as his father was a transitory foreigner, Obama is not a citizen per the 14th Amendment because his father is and therefore he is a subject of the Queen and the British Empire.

    Classes of citizenship: Natural born and naturalized together do NOT cover all citizens of a country. Although they are mutually exclusive terms, in combination they are not all encompassing. What is left out are the statutory citizens – those covered by laws that deal with such cases as children of mixed parentage, children born to two citizens outside of the country (while not serving our military), and other such combinations.

    To Guy on September 3, 2010:

    It’s clear from the debate on the amendment that everyone understood that it applied to EXCLUDE the children of non-naturalized immigrants.

    The Wong case did not create the “citizen at birth” category which is neither natural born nor naturalized. It existed before, and Congress first dealt with it in 1790.

    Guy on September 3, 2010:

    “Aliens who come to the United States owe allegiance to the United States for as long as they are here,…”

    Completely incorrect. Where did you come up with that BS? This is the same as saying that if you were to visit England, you would be an Englishman during your stay, or while visiting Germany, you would be a German. Just because a person is not present in his country of citizenship doesn’t mean he doesn’t owe allegiance to it. Such changes only when he COMPLETES naturalization to become a citizen of a new country, and only then if his new country requires that he RENOUNCE his former allegiance(s). Simply being present doesn’t make one a citizen nor is it an act of allegiance.

    The child of two aliens is NOT subject to complete U.S. jurisdiction and is therefore NOT a U.S. citizen at birth. Period.

    I am certainly glad that my g-g-g-grandfather who served on the U.S. District Court for the Northern District of California (where the Wong case was first heard) had retired from the Court before Wong was born. The Government’s argument is absolutely correct and the Courts wrong with regard to his citizenship. However, as a permanently resident alien, he should have been permitted reentry. The Court’s error is that it applied English Common Law to an area where U.S. law clearly deviated (cf. War of 1812).

    The reference to the Dred Scott decision is incorrect in its belief regarding no differing opinion. The letter from John Jay to George Washington in discussing the Constitutional requirements for President says otherwise. US v. Rhodes is cited but misused as the opposite conclusion is reached.

    The Wong case is wrong. Furthermore, it is not precedent for illegal aliens as the underlying facts are sufficiently different. “Anchor babies” are NOT U.S. citizens.

    • Tom says:

      At this point I’m willing to allow that Obama is natural-born based on the evidence that he never claimed Kenyan citizenship and that his mother was an American citizen.

      While he remains somewhat of an issue for the next few years, that battle isn’t worth fighting. What matters now is how we address the incentive for illegal immigration that citizenship based solely on the location at birth creates. However, even more important than that is the lack in recent decades of effective assimilation of immigrants. Americanization has been replaced with multiculturalism. E Pluribus Unum has been replaced by something like E Pluribus Pluribus which is a recipe for national disintegration.

  6. John says:

    Obama was born in the United States. He is therefore a natural born citizen. The language in the Constitution differs from the language in the Civil Rights Act of 1866, and we must conclude that different words produce different meanings.

    • eggsbenedict says:

      Where is the proof that he was born in the U.S.? No one has seen his authentic long form Birth Certificate. The one the White House posted on the web was a fake and it has been proven.

  7. Sue Little says:

    I have a question. What is your opinion on the effect of Wong as it regards “natural born citizen” and eligibility for the office of POTUS. It seems that some believe since this addressed a very narrowly defined factual situation, the court merely concluded Wong was a citizen and not a natural born citizen. It seems to me that the framers started out with two classes: natural born and those naturalized. I think the ruling redefined “natural born” using the English common law. Stated differently, as a result of Wong, is there now such a thing as a “citizen at birth” that is not a “natural born citizen?”

  8. Sue Little says:

    You bet your butt it was erroneous. It is a complete travesty. While Wong was not an illegal alien, the case did three things that I can see. It redefined “natural born citizen” as merely being born on U.S. soil, it reinterpreted “subject to the jurisdiction of” as mere local jurisdiction to the United States, and third, it completely eliminated aliens and foreigners as a class of persons with allegiance to a foreign power leaving only foreign dignitaries, hostile enemies, and Indians as those with an allegiance to a foreign power. Chief justice Fuller was dead on right in the dissenting opinion. How on earth they misapplied the 14th amendment in such a fashion when it had clearly been defined a few months earlier is beyond me. The implications on our country have just been devastating given the hostile Islamic elements entering our country, the invasion on the southern border, and the implications on the eligibilty requirements of POTUS. The founders clearly sought to prevent this. And now, we have a card carrying member of La Raza sitting on the bench. Oh, how far we have fallen!

  9. Sue Little says:

    No, “natural born” with regard to the parents, is not the disqualifier for the child. If the parents are naturalized citizens, a child born to them is a “natural born citizen.” If the parents are illegals, their children are not “natural born” citizens.

  10. RB says:

    So much of this is arguing if immigrants can have a citizen newborn as long as his parents are in the legal process here or if they must not have foreign allegiance as well.

    The answer is clear. But how many times is the 14th used to grant cases like these?

    Today 99 out of a hundred don’t make either category.

    Yet they are universally granted US citizenship!

    Meanwhile we’re arguing how pure the law should be while it is being trampled by literally millions who are nowhere close to any interpretation but flat-out defy the law and the USA.

  11. Rick O. says:

    The 1898 Wong Kim Ark case decision makes no sense whatsoever. The Supreme Court’s purpose is to base decisions on current law, as long as that law is not unconstitutional, and not to create new laws. At the time of this case, the 1878 Revised Statutes (RS) of the United States were considered positive law of the US, and Title XXV, Section 1992 of the RS stated this concerning citizenship, which is the same wording as found in the 1866 Civil Right Act:

    “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

    If the Wong Kim Ark decision shredded this law, then why do we find the same “not subject to any foreign power” clause in Title 8, Section 1 of the 1926, 1928, and 1934 United States Code, which followed up the Revised Statutes? It wasn’t until enactment of the Nationality Act of 1940, which consolidated and restated the laws on citizenship, that the wording was changed to “and subject to the jurisdiction therof,” some 42 years after the Wong Kim Ark case! And let’s not forget that in 1885, 13 years prior to the WKA decision, US Secretary of State Thomas F Bayard ruled under Section 1992 of Revised U.S. Statutes that although Richard Greisser was born in the United States, his father at the time of his birth was a subject of Germany, and thus, Richard Greisser could not be a citizen of the United States. Furthermore, it was held his father was not subject to the jurisdiction of the United States under the 14th Amendment. Bayard said, “Richard Greisser was no doubt born in the United States, but he was on his birth ‘subject to a foreign power,’ and ‘not subject to the jurisdiction of the United States.’ He was not, therefore, under the statute and the Constitution a citizen of the United States by birth, and it is not pretended that he has any other title to citizenship.” WKA? – Go figure.

  12. jk2001 says:

    If it were possible to reverse WKA, then, I would not be a citizen. I was born here, to a parent who would not have been a natural born citizen, because his parents were ineligible to become citizens.

    We’ve been in this country more than 100 years, and you’re going to strip us of our national identity? That is so racist.

    In fact, it’s beyond racist because even the members of my family who identify as white would not be citizens, because they could not pass a “two citizens” rule.

    • A2S1C5 says:

      jk2001 – You are VERY confused. Firstly, this discussion is in NO WAY racist because the question is allegiance, or citizenship, and NOT race. It matters not what race someone is as you admitted youself when you seemed shocked that these ideas would effect your relatives that identify themselves as white.

      Next, you are falsely claiming that your parents must be ‘natural born’ citizens for you to be a born citizen. That is not true and nobody here has said that. Your parents could have been born in the Kremlin, or in Saddam’s old Baghdad palace…it matters not. As long as they were naturalized before your birth in the US, you would be a citizen by birth according to the proper meaning of the 14th.

      Finally, nobody is taking anyone’s national identity away. Even if you are born here to non-citizens, you can still be a citizen. You would just have to go through naturalization as to renounce any allegiance you have to the citizenship rights handed down from non-citizen parents. It’s all very simple, logical and NOT racist in the least.

    • MR. X says:

      We would not be stripping you of anything. You are claiming an identity that you never rightfully had. This means you’re part of the problem: Your father was born an alien, and that makes you an alien, unless for some reason, your father’s country does not grant citizenship to descendants who never lived in country.

  13. jp straley says:

    Here’s a new slant on WKA as a precedent. The WKA decision names the class of parents covered by the decision as having permanent domicile in the US. Well, illegal aliens pretty much live under the threat of detection and deportation. How can that be called a permanent domicile?

    Moreover, in the case of Mexicans, a Mexican anchor baby instantly made a Mexican citizen by the actin of the Mex. Const. That establishes a relationship, state and citizen; thus, a substantial piece of Mexican jurisdiction applies to that new Mexican citizen,

  14. billy c says:

    Gray never called Wong a ‘natural’ born citizen in his ruling.

    http://www.law.cornell.edu/supct/search/display.html?terms=elk+v+wilkins&url=/supct/html/historics/USSC_CR_0169_0649_ZO.html

    In fact he makes a distinction between a child born of two citizens and one born here of aliens, which is what Wong was, right?

    ” as said by Mr. Binney in his essay before quoted, “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.”

    No, dont misunderstand the Wong decision, it was about the child of two aliens born on US soil becoming a citizen, just as with two citizens, who ARE ‘natural born’, become a citizen by birth.

    Nowhere in the ruling does this give license for a foriegn born such as obama, or a ‘anchor baby’ to use todays vernacular, such as Wong to be a ‘natural born’ citizen eligible to become POTUS.

  15. P.A. Madison says:

    Also, aliens who come to the United States owe allegiance to the United States for as long as they are here, and their children owe allegiance at the time that they are born, the law on this question is well settled, see Blackstone’s Commentaries on the Laws of England.

    You leave unsettled the question of whether alien parents still owe allegiance to their country of origin while within any of the several states? Does a Frenchman no longer owe allegiance to France while visiting NY without first taking the steps under naturalization law to renounce his allegiance with France?

    These are important questions since it was made clear by Trumbull, Howard, national law, later legislative acts and a U.S. AG opinion that subject to the jurisdiction means not owing allegiance to anybody else. This is also what Gray acknowledged in Elk.

    Regards,

    Paul

  16. Guy says:

    Wong and [Elk] are not in conflict, the child of aliens born in the United States are subject to the complete jurisdiction of the United States, the same cannot be said for the members of indian tribes, who have their own courts, their own laws, and retain a limited degree of sovereignty.

    Setting aside the fact that inquiring into legislative history is a recent phenomenon, and one strongly opposed by Conservative jurists, it’s clear from the debate on the amendment that everyone understood that it applied to the children of immigrants, the primary objections to the citizenship provision were that it gave citizenship to the children of “mongols” and “gypsies”.

    Also, aliens who come to the United States owe allegiance to the United States for as long as they are here, and their children owe allegiance at the time that they are born, the law on this question is well settled, see Blackstone’s Commentaries on the Laws of England.

  17. Dog Wonder says:

    I agree that both Elk and Wong are in direct conflict with each other. Gray failed in defining “subject to the jurisdiction” to be dependent on whether you are Asian or Indian. The clause just does not allow anyone to suggest it opperates diffently depending on classifications of people (Indian or Asian) because it says it equally operates on everyone.

    Gray was telling the truth in Elk and just fudging it in Wong.

  18. Troy says:

    Interesting outcome between Elk and Wong. While I think the issue before the court were different between the two, the Elk interpretation of “subject to the jurisdiction thereof” should had remained the same in Wong since it applies to all persons and not specifically Indians, Chinese or any other race class.

    I think Elk and Wong are in conflict with each other over the interpretation of “subject to the jurisdiction thereof,” and has been for a long time. Elk is the correct interpretation of “subject to the jurisdiction thereof” according to the framers.

  19. PN says:

    So, If a person born here in the U.S. to parents that are not U.S. citizens asults me. Could I bring suit challanging their citizenship on the basis they should not of been in the Country in the first place?

  20. JimAZtec says:

    In Reply to Mike:

    Actually no. The district court only said its hands were tied by another judicial case (Tin Sing): “The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in declaring it to be the law against controlling judicial authority.”

    In Tin Sing the justices for some twisted reason decided “subject to the jurisdiction” meant only general laws and not a political jurisdiction. That of course turned citizenship through naturalization on its head, leaving naturalization obscure. Of course the history of being subject to the jurisdiction meant political jurisdiction, just as Congress in 1866 said it meant.

    Even Thomas Cooley said subject to the jurisdiction meant more than obeying laws: “But a citizen by birth must not only be born within the United States, but he must also be subject to the jurisdiction thereof; and by this is meant that full and complete jurisdiction to which citizens generally are subject, and not any qualified and partial jurisdiction such as may consist with allegiance to some other government.”

    You will find zero truth in Wong Kim Ark because that holding had only one tyrannical purpose: Force the dying Common Law Doctrine at all cost upon this country.

  21. Mike says:

    Here’s a link to the Wong Kim Ark decision:

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=169&page=649

    It is interesting that the US District Court also decided Wong was a US citizen.

  22. Dice Man says:

    Yo I really can dig this Gray dude and his fellow nitwits in robes. I’d really appreciate the freedom to scam my fellow man to then legally obtain title to properties and fine vehicles from the proceeds and to be able keep EVERYTHING after I walk out of Leavenworth.

  23. Mike says:

    Greg;

    Maybe you’d better go back and take a look at Ch. Justice Marshall’s decision in Marbury v. Madison, which is one of the fundamental foundations of our jurisprudence. As any first year law student could tell you, that case stands for the proposition that when a law is contrary to the US Constitution, the Constitutional provision takes precedence, and the law is unconstitutional.

    And W. Cobb is correct about the role of Stare Decisis, reasonable expectations on legal questions is essential to the conduct of society, AND it also save the Court from deciding similar cases over and over and over again.

  24. J. Aldridge says:

    In Reply to W. Cobb:

    The Constitution says nothing about stare decisis. Justices of the court take an oath to uphold the Constitution, not uphold stare decisis or uphold court usurpation.

    The 14th amendment does exempt children of foreign ministers just as it exempts everyone who are subject to another power. No need to invoke common law to exclude foreign ministers.

    The court did not reverse itself on the MLB anti-trust question because it left it to Congress to handle it. If we didn’t live under cruel dictators I think any court under a republican government would had promptly corrected this error of judgment.

  25. W. Cobb says:

    In reply to J. Aldridge,

    If you read the majority opinion in Wong Kim Ark you will see the difference between the children of foreign ministers born in the US and the children of Chinese citizens born in the US. According to the majority opinion, the exemption of children of foreign ministers from being “natural born” citizens is built into the Constitution. This is because the term “natural born” is a term of art developed under English common law. The drafters of the Constitution were obviously well-versed in English common law, so when they used terms derived from that jurisprudence they intended them to have the same meaning. So if the term “natural born” subject excluded children born in the realm to foreign ministers, then “natural born” citizens also automatically excluded children born in the US to foreign ministers.

    In contrast, English common law does not exclude children born in the realm to Chinese citizens from being “natural born” subjects. Since they could be “natural born subjects”, then they would be “natural born” citizens as well pursuant to the Constitution. Congress cannot amend the Constitution by passing a law, so it could not deprive children born in the US to Chinese immigrants of their rights as “natural born” citizens.

    Please understand, I am not saying the Court’s analysis in Wong Kim Ark is correct-I don’t know since I have not engaged in an independent study of English common law on the subject. What I am saying is that Wong Kim Ark is precedent, and pursuant to Stare Decisis, the Court will not lightly reverse it. Just as an example, baseball fans will know that the Court granted Major League Baseball an exemption from anti-trust laws. The Court later decided this was a mistake-no other sports league has an anti-trust exemption. However, the Court would not reverse itself in regards to Major League Baseball due to Stare Decisis-thus it continues to enjoy an exemption from anti-trust laws.

  26. J. Aldridge says:

    In Reply to W. Cobb:

    You are dead wrong buddy.

    Wong Kim Ark had to be naturalized by the court because the both law and treaty said he couldn’t be a citizen. By your broken logic children of foreign ministers would also have to be citizens of the United States because they are also born somewhere in the United States! But you will say they are excepted from jurisdiction by law. Well so were all Chinese subjects from becoming citizens of the nation! There is no constitutional exception for foreign ministers under the 14th amendment.

    This isn’t about Madison disagreeing with Wong Kim Ark, it is about law and facts that disagree with Wong Kim Ark.

  27. W. Cobb says:

    In reply to P.A. Madison,

    As you should know, Congress’ powers of naturalization are irrelevant to Wong Kim Ark, since he did not have to be naturalized-the Court held that since he was born in the United States he was a “natural born” citizen. I realize you disagree with Wong Kim Ark, but pursuant to Stare Decisis, I cannot imagine that the Court would reverse it and hold Obama ineligible to be president. That would spark the worst constitutional crisis since 1860. Justice Roberts is too smart to take such a reckless action.

  28. P.A. Madison says:

    In Reply to W. Cobb:

    The treaty in question with China was ratified by the Senate in 1868. Most of the membership consisted of those who drafted and adopted the citizenship clause (including Trumbull and Howard).

    In 1883 Congress passed an act entitled “AN ACT TO EXECUTE CERTAIN TREATY STIPULATIONS RELATING TO CHINESE.” Section 14 of this act read “that hereafter no state court or court of the United States shall admit Chinese to citizenship, and all laws in conflict with this act are hereby repealed.”

    Here the Court was prohibited by law made in pursuance to the powers invested in Congress by the Constitution to Naturalize subjects of China.

    Under the Constitution powers of Naturalization is exclusively invested with Congress and not the Supreme Court. To defend Wong Kim Ark one would have to show Congress had no authority to make the treaty it did with China and had exceeded its constitutional powers over Naturalization in prohibiting Naturalization of Chinese subjects.

    Good luck with that.

    Regards,

    Paul

  29. W. Cobb says:

    Ken,

    The SCOTUS has already defined “natural born” citizen in US v. Wong Kim Ark. In order to exclude Barack Obama, it would have to reverse its holding in that case. In Wong Kim Ark, the Court held that persons born in the US to foreign nationals are “natural born” citizens unless a parent is an ambassador or a hostile occupier of US territory. Neither exception applies to Obama.

    Jim Aztec,

    I don’t know what treaty you are referring to, but a treaty which strips a citizen of his constitutional rights is unconstitutional. Obama is a “natural born” citizen as that term is defined by the SCOTUS in Wong Kim Ark. Stare Decisis strongly mitigates against the Court reversing that definition at this time. It would throw the nation into chaos. The Court could even be putting its own authority into jeopardy, since Obama with the support of Congress could well decide to defy what would be, in effect, an attempt at a judicial coup.

  30. Ken says:

    In Reply to W. Cobb’s: “There is no good reason for the SCOTUS to reverse itself now, declare that all that time and effort was for naught, and leave the country leaderless in the middle of a critical global economic crisis and two wars.”

    TheSupreme Court would not be reversing itaself, but would be legally defining the term “natural born citizen”, as the term is in the Constitution, and a legal definition, based on the framers’ understanding of that term, and other politicians’ understanding of the framers.

    We must NOT ignore our Constitution. We must DEFEND it.

    And if we want to alter the Constitution, that is what amendments are for.

    But we do not IGNORE the Constitution. It is the Supreme Court’s DUTY to legally define the term.

  31. Ken says:

    In Reply to Tim R.’s: “Too bad the words “commen sense” don’t come into play. All this writing to state the obvious: “to be a natural born citizen, at least one parent has to be a citizen.” End of discussion!”

    Well, Tim,

    if COMMON sense were used, then you would be agreeing with Justice Swayne and Rep. John Bingham’s meaning of the term “natural born citizen”, instead of creating your own definition from what you want it to mean.

  32. JimAZtec says:

    In Reply to W. Cobb: So you believe SCOTUS is above the law do you? They can violate treaties with impunity and future courts can do the same thing by hiding behind stare decisis?

  33. W. Cobb says:

    You have made the argument why you think Wong Kim Ark is wrong. However, the SCOTUS does not automatically reverse incorrectly decided cases due to the principle of Stare Decisis. There has to be an extremely good reason to upset people’s settled expectations upon which they have reasonably relied. Barack Obama could reasonably rely on Wong Kim Ark to establish that he is a natural-born citizen. We have gone through a two year election process, expending billions of dollars. 67 million Americans voted for Barack Obama as president. There is no good reason for the SCOTUS to reverse itself now, declare that all that time and effort was for naught, and leave the country leaderless in the middle of a critical global economic crisis and two wars.

  34. Tim, in order to be considered “natural born”, the person must be born on American soil and to 2 American citizens. This term “natural born citizen’ is extremely important qualification for POTUSA, as it demonstrates complete allegiance. one born with a parent of another country will have a tainted birth, and will not be eligible for POTUSA

  35. JimAZtec says:

    In Reply to Daniella: So? It was taboo in 1866 to talk about having a child out of wedlock you know?

  36. Daniella says:

    Actually this says P-A-R-E-N-T-S:

    John A. Bingham, chief architect of the 14th Amendments first section, considered the proposed national law on citizenship as “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen”¦” If this law was simply to reaffirm the common law doctrine then the condition of the parents would be totally irrelevant.

  37. Tim R. says:

    Too bad the words “commen sense” don’t come into play. All this writing to state the obvious: “to be a natural born citizen, at least one parent has to be a citizen.”

    End of discussion!

  38. walter says:

    I agree that the intent of the 14th amend. was missed in this case. But what upsets me is that this ruling is being illegally applied today far beyond original intent of this ruling. Wong Kim Ark’s parent’s had legal residence and were processed when they entered the US and this was a huge reason the court ruled that they were under the jurisdiction of the US. Illegal immigrants children are given birthrights citizenship today and these illegal immigrants do not have legal residence and therefore are not under the jurisdiction of the US based on this ruling.

  39. Greg923 says:

    The problem I have with Wong Kim Ark is that he was born after 1866, which clearly placed him under the federal civil rights law that acted to banish him from automatic citizenship. It does not make any sense why the court would discard national law, that alone the legislative construction behind the phrase “subject to the jurisdiction.” I’m not a lawyer, but when you have one supreme court ruling that is in direct conflict with two other court rulings (not to mention in conflict with the 14th), can the conflicting ruling be considered either binding or persuasive? Stranger still, citizenship to babies born to foreigners seems to be a recent phenomena.

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