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.
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.