But the fact that there was a dispute strongly suggests that the 14th Amendment did not resolve that issue. The decision closest to the 14th Amendment did not claim that the 14th Amendment spoke to the definition of “natural born citizen”.
Wong Kim Ark didn’t even try to find out the meaning of the common law AT THE TIME OF THE SIGNING OF THE CONSTITUTION. It used as its source somebody explaining the then-modern British Nationality Act - even though the WKA court had acknowledged that the authority at the time the Constitution was written was VATTEL (who contradicts the source they cited).
That’s basically like looking to the modern definition of “gay” to find out how to understand the lyrics, “When Irish eyes are smiling, all the world seems bright and gay...”
“Wong Kim Ark didn’t even try to find out the meaning of the common law AT THE TIME OF THE SIGNING OF THE CONSTITUTION.”
Yes it did. It went back to 1609, and worked its way forward.
There is no denying that the colonies used the phrase ‘natural born subject’ all the time. And in the years following the Constitution, they used it interchangeably with natural born citizen, or native citizen.
Again, quoting from the decision birthers usually avoid reading:
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
Also:
“Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,
and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”
And:
“n United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
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 [p663] 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.”
And
“The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
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 [p664] 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 one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”
State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26.”
BTW - the word Vattel is not found in WKA. If it referenced him, it certainly did NOT acknowledge that Vattel was the authority on citizenship. Remember, according to Vattel, it doesn’t matter where you are born, but to whom. US law has NEVER followed that principle.
Lord Coke and the Calvin’s case is quoted more than once. All the judges in England heard that case. It was a seminal case and heard long before the writing of the Consitution. King James was from Scotland. This case was a very important case and changed the nature of who could own land .
“THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”
That was written in 1769 - shortly before the Revolution. Blackstone was considered the authority on English common law.
http://avalon.law.yale.edu/18th_century/blackstone_bk1ch10.asp
Here is another example:
“2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural born subjects within the realm of England.”
It comes from the The Declaration of Rights and Grievances, written by Congress to protest the Stamp Act.
http://www.usconstitution.net/intol.html
You see, the members of Congress and the colonies were well acquainted with the phrase ‘natural born subject’. Now, did NBC come from that common term, or from a translation of Vattel made 10 years after the Constitution?
“Resolved, that by two royal charters, granted by King James the first, the Colonists aforesaid are declared intituled to all the Privileges, Liberties & Immunities of Denizens and natural-born Subjects to all Intents and Purposes as if they had been abiding and born within the Realm of England.”
From House of Burgesses on May 30, 1765, as written by Patrick Henry.
http://research.history.org/pf/declaring/henrysResolutions.cfm