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Who is a Natural Born Citizen?
Vanity & compilation from various sources | 2011-07-03 | Sourcery & various other sources

Posted on 07/03/2011 7:26:19 PM PDT by sourcery

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To: Mr Rogers
Firstly, it's intellectually dishonest of you to respond to my charge of lying about the clear and irrefutable meaning of "natural born subject" with a non-sequitur response on the topic of the wording of various drafts of the Constitution. What you did constitutes a concession that I am right on the original topic (the meaning of "natural born subject,) and that you were wrong (note the past test, in honor of your having conceded the point.)

Secondly, I in turn concede that it's impossible to know which proposed and/or working draft of the Constitution (or other document under discussion by the Committee of Detail) it was that prompted John Jay's letter to Washington. Recently, yet another draft of the Constitution was discovered, written by James Wilson.

Of course, John Jay must have been responding to something. The date of his letter to General Washington was 25 July 1787. He was not one of the delegates. He wrote the letter from New York, as evidenced in the text of the letter itself:

Virginia Plan (presented to the delegates on 29 May 1787), or to the text of the New Jersey Plan (presented to the delegates on 15 June 1787), or to the British (Hamilton) Plan (presented to the delegates on 18 June 1787), or to the Pinckney Plan (presented to the delegates on 29 May 1787.)

It is clear from the accounts of other members of the Convention that Pinckney's plan was sent on to the Committee of Detail that drafted the first copies of the Constitution, and many of his ideas and phrases are included in what we read today.

However, it was the British/Hamilton Plan that had most recently been submitted, and was the last such submission on 18 June.

The words "born a citizen" occur in Article I, section IX of the British/Hamilton Plan, which states:

No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States. Pryor, Jill A. "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty". 97 Yale Law Journal 881, 889 (1988);

According to Madison's notes, discussion of the issues surrounding the selection and eligibility of the President commences on 17 July, and continues off and on for more than a week. Nothing is mentioned in Madison's notes regarding any requirements that the President be any sort of citizen. However, on 25 July (interesting date), Madison reports that he made the following comments to the Convention:

Mr. MADISON. ...Besides the general influence of that mode on the independence of the Executive, 1. [4] the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2. [5] the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3. [6] The Ministers of foreign powers would have and [7] make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governmt. a man attached to their respective politics & interests. No pains, nor perhaps expense, will be spared, to gain from the Legislature an appointmt. favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of the Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference. In the latter, altho' the elective Magistrate has very little real power, his election has at all times produced the most eager interference of forign princes, and has in fact at length slid entirely into foreign hands. The existing authorities in the States are the Legislative, Executive & Judiciary. The appointment of the Natl. Executive by the first, was objectionable in many points of view, some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the Natl. Legislre. was to controul this propensity. One object of the Natl. Executive, so far as it would have a negative on the laws, was to controul the Natl. Legislature, so far as it might be infected with a similar propensity. Refer the appointmt. of the Natl. Executive to the State Legislatures, and this controuling purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the appointmt. of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, The Natl. Executive would be rendered subservient to them. -- An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers. The State Judiciarys had not [8] & he presumed wd. not be proposed as a proper source of appointment. The option before us then lay between an appointment by Electors chosen by the people -- and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged agst. it, and greatly preferable to an appointment by the Natl. Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. As a farther precaution, it might be required that they should meet at some place, distinct from the seat of Govt. and even that no person within a certain distance of the place at the time shd. be eligible. ...

So Madison and John Jay both state the same concerns regarding foreign influence on the President ("the Exective") on the same day, even though one is in Philadelphia and the other in New York. Is that just an amazing coincidence, or were discussions occurring for which he have no documentation?

In any case, the most reasonable assumption is that Jay was familiar with all of the proposed plans, and satisfied with none. If not, on what basis was he making any objection? As of 25 July, no one had any idea which proposal so far made, or yet to be made, would emerge from the Convention—if any. It is therefore evident that Jay's criticism can only be assumed to apply to all the proposals. Therefore, it applies just as strongly to the strictest eligibility requirement proposed at the time, just as much as it does to the most lenient. Therefore, it applies to Hamilton's "born a citizen" requirement.

Your objection is overruled.

51 posted on 07/04/2011 4:55:24 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: Mr Rogers
My text was mangled. Here's the missing part:

So Jay could have been responding to the text of the Virginia Plan (presented to the delegates on 29 May 1787), or to the text of the New Jersey Plan (presented to the delegates on 15 June 1787), or to the British (Hamilton) Plan (presented to the delegates on 18 June 1787), or to the Pinckney Plan (presented to the delegates on 29 May 1787.)

52 posted on 07/04/2011 4:58:44 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: Kleon

Consider my posts #51 and #52 as my replies to your post.


53 posted on 07/04/2011 5:03:46 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: The Big T

What’s apparent is that you haven’t carefully read my essay. It categorically refutes every one of your points.


54 posted on 07/04/2011 5:10:29 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: sourcery

“What you did constitutes a concession that I am right on the original topic (the meaning of “natural born subject,) and that you were wrong (note the past test, in honor of your having conceded the point.)”

No, you are wrong. Natural born subject was used in colonial law. When the states became independent, they started replacing that phrase with NBC, making no other changes. Thus we see that NBC = NBS, as the US Supreme Court has said:

“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.

In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying:

Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of [p659] that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide.

2 Cranch 64, 119.

In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:

It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.

3 Pet. 120. Mr. Justice Johnson said: “He was entitled to inherit as a citizen born of the State of New York.” 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones, above cited, and saying:

Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.

3 Pet. 155. “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” 3 Pet. 156.

Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.

3 Pet. 164.

In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby...

...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.”

In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:

The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.

19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.

In 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.

1 Abbott (U.S.) 28, 40, 41.

The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions,

that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”

Garder v. Ward (1805), 2 Mass. 244, note. And again:

The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.

Kilham v. Ward (1806), 2 Mass. 236, 265. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen’s Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) “clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due.” Isaacson v. Durant, 17 Q.B.D. 54, 65.

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.

That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.”

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html

Notice the last case mentioned said:

“(page 246)
And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President,” &c. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.

(pg 250)
6. Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.”

http://tesibria.typepad.com/whats_your_evidence/Lynch_v_Clarke_1844_ocr.pdf

And again, the first draft approved by the Founders was done in Aug 1787, and it had NO requirement for the President to be born in the USA. It allowed naturalized citizens to become President. Further discussion in August resulted in major revisions to the section on the President, including a requirement for him to be a NBC - a legal phrase already in use prior to the Constitution.


55 posted on 07/04/2011 5:16:03 PM PDT by Mr Rogers (Poor history is better than good fiction, and anything with lots of horses is better still)
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To: The Pack Knight

What matters isn’t precisely who qualified as a “subject born” or as a “subject made,” but rather that there is in fact a distinction between “subject born” and “subject made,” and that BOTH were legally “natural born subjects.” Given that, to assert that “natural born citizen” is simply “natural born subject” with “subject” replaced by “citizen” fails for the reasons given in my essay.


56 posted on 07/04/2011 5:17:56 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: bluecat6
"Having studied this passage for over 2 years I am not sure as to what the relevance of the repeated passage is."

The relevance is that in Minor the Court explicitly declined to resolve the doubts. Universal agreement that children born on U.S. soil to citizen parents are natural-born citizens does not imply that other classes are *not* natural-born citizens.

For the native-born, the doubts were decisively resolved in U.S. v. Wong Kim Ark (169 U.S. 649):

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.

Got that? The British rule that, with narrow exceptions, the native-born child of aliens is a natural-born subject continued to prevail under our original Constitution. Supreme Court said so.
57 posted on 07/04/2011 5:37:20 PM PDT by BladeBryan
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To: sourcery
In any case, the most reasonable assumption is that Jay was familiar with all of the proposed plans, and satisfied with none. If not, on what basis was he making any objection? As of 25 July, no one had any idea which proposal so far made, or yet to be made, would emerge from the Convention—if any. It is therefore evident that Jay's criticism can only be assumed to apply to all the proposals.

You ignore the fact that Hamilton's "plan" was already voted against in its entirety. With Hamilton's proposals dismissed by the Convention, Jay could simply be reiterating Hamilton's proposed eligibility requirement in the legal language he was familiar with. If he was "objecting" to anything, it was most likely the idea the committee would meet to draft the Constitution without having agreed on any eligibility requirements for the Executive.

58 posted on 07/04/2011 5:39:46 PM PDT by Kleon
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To: Kleon

It cannot be assumed that Jay knew which plans had already been rejected. Technically, he wasn’t supposed to know about any of them. The Convention was operating under a veil of secrecy, which apparently wasn’t fully respected. But it does not follow that Jay knew all the key facts, not even after a week’s delay.

What matters is that what survived included the “natural born citizen” eligibility constraint, and all alternatives were rejected. Based on the comments made by Madison and others, that constraint was clearly included so as to prevent the spectre of “foreign” influence in the Office of the President.

However, I will revise my essay based on the fact that Jay may well have not been specifically objecting to the wording “born a citizen.”


59 posted on 07/04/2011 6:23:46 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan
Your quote from Wong Kim Ark does not say what you claim it does. The phrase it uses is "natural born subject." It uses that phrase for the very good reason that it's not ruling (making a precedential holding) about US law, rather is making a dictum about British law (about which it has no authority to rule precedentially.)
60 posted on 07/04/2011 6:28:40 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan
The correct translation of "natural born subject" into American law is simply "citizen." So the Wong Kim Ark holding is that those born in the US are citizens. Which is precisely what the 14th Amendment says.
61 posted on 07/04/2011 6:32:05 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan

If your out-of-context quote was actually a holding of the case, the court could have stopped right there. Why? Because as a “holding,” that statement would have been sufficient to find the petitioner was a citizen, without any need to make a “first instance” interpretation of the 14th Amendment.

The fact that it didn’t do any such thing proves your interpretation is wrong.

And the fact that Congress thought it could pass statutes that denied Citizenship based on race or nationality, and that such statutes had been on the books for many decades, proves that it was absolutely FALSE that “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.”

If that was the prevaling, settled law, why was this case even in court?


62 posted on 07/04/2011 6:43:22 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: sourcery; The Pack Knight

The reasons found in your essay are false.

“The English common law did not distinguish between a “natural born subject” and a naturalized subject.”

False statement.

“Therefore, giving the “natural born Citizen” clause the same meaning as a “natural born subject” would have allowed a naturalized citizen to be eligible to be President of the United States.”

Another false statement.

See the section in Lynch reviewing colonial law:

http://tesibria.typepad.com/whats_your_evidence/Lynch_v_Clarke_1844_ocr.pdf

“But assuming the “natural born Citizen” clause had the same meaning as a “natural born subject,” with the Constitution as written it would not have conveyed in any manner that a naturalized citizen was not eligible to be President.”

Another false statement. A naturalized citizen was not interchangeable with a natural born citizen. The both were citizens, but the details varied with the colony with regard to what privileges were given, but the source of the privilege remained different.

Your essay ignores history and the law.


63 posted on 07/04/2011 6:43:53 PM PDT by Mr Rogers (Poor history is better than good fiction, and anything with lots of horses is better still)
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To: Mr Rogers

All those statements are true and correct. As the essay proves beyond any possibility of refutation.


64 posted on 07/04/2011 6:48:00 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: Mr Rogers

A New York State court decision is irrelevant.


65 posted on 07/04/2011 6:53:56 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: sourcery
sourcery wrote:
Your quote from Wong Kim Ark does not say what you claim it does. The phrase it uses is "natural born subject." It uses that phrase for the very good reason that it's not ruling (making a precedential holding) about US law, rather is making a dictum about British law (about which it has no authority to rule precedentially.)
You seem to have stopped before the second paragraph of the quote. Yes, it started talking about the British rule, but here again is the part you seem to have missed:
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.
Got that? The same rule "continued to prevail under the Constitution". That's what the quote said, and that's what I said the quote said.
66 posted on 07/04/2011 7:13:16 PM PDT by BladeBryan
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To: Mr Rogers
A large part of your post is taken verbatim from Wong Kim Ark. The only precedential holding in that case listed in the syllabus is "The court ordered Wong Kim Ark to be discharged, upon the ground that he was a citizen of the United States. 1 Fed.Rep. 382. The United States appealed to this court, and the appellee was admitted to bail pending the appeal."

The actual holding is stated in final paragraph of the opinion:

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 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.

The "reasons above stated" are:

  1. The 14th Amendment grants citizenshp to the apellee: "...citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization."
  2. Congress has no power to deny citizenship granted by the Constitution itself: "The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away."

All else is either dicta, or else justification for any need to make a "first instance" ruling on the meaning of the first clause of the 14th Amendment.

67 posted on 07/04/2011 7:17:45 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan
If that means what you claim, why didn't the Court stop right there? What was that not sufficient to find the apellee a citizen?

Worse, the very fact that laws had been on the books for decades, unchallenged, that denied citizenshp based on race flatly contradicts the statement the standard policy in the US was to grant citizenship to everyone born here.

68 posted on 07/04/2011 7:21:48 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan
See also post #67. Your quote from Wong Kim Ark is dicta, not a precedential holding.
69 posted on 07/04/2011 7:23:41 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: sourcery
sourcery wrote: "The correct translation of 'natural born subject' into American law is simply 'citizen.' So the Wong Kim Ark holding is that those born in the US are citizens. Which is precisely what the 14th Amendment says."

That's not what the Court says:

"Natural-born British subject" means a British subject who has become a British subject at the moment of his birth. [U.S. v. Wong Kim Ark, quoting A.V. Dicey's Digest of the Law of England]

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. [U.S. v. Wong Kim Ark, quoting State v. Manuel]

Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land. [U.S. v. Wong Kim Ark, quoting 2 Kent Com. (6th ed.)]

Sourcery, I don't know what kind of work you do, but it's clearly not legal scholarship. I'm not a constitutional scholar either, but I know enough to see that your analysis warrants a big red X through it. You are fooling people who want to be fooled, including yourself, but that's it.
70 posted on 07/04/2011 7:31:44 PM PDT by BladeBryan
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To: BladeBryan
The validity of each and every Supreme Court decision issued wherein Chief Justice Gray either wrote the majority opinion, or which was a 5/4 decision, depends utterly on the whether or not the President who "appointed" him (Chester Arthur) was Constitutionally President.

Chester Arthur was born in the US to a father who was a British subject at the time, and who had not yet become a naturalized US citizen. That fact did not become known until years after he left the Presidency.

It's more than just ironic that Wong Kim Ark was decided by Justice Gray. The SCOTUS may have no choice but to disregard Wong Kim Ark whenever they decide to either affirm or overturn Minor vs. Hapersett, in order to avoid logical contradictions.

71 posted on 07/04/2011 7:42:21 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: sourcery
sourcery wrote:
If that means what you claim, why didn't the Court stop right there? What was that not sufficient to find the apellee a citizen?

Worse, the very fact that laws had been on the books for decades, unchallenged, that denied citizenshp based on race flatly contradicts the statement the standard policy in the US was to grant citizenship to everyone born here.

You seem to have answered your own question. Yes, the situation in the U.S. was more complex considering the laws and policies addressed by the 14'th Amendment, which pushed the Court to additional considerations.

That said, I don't really understand why the WKA opinion needed to be as long as it was.

72 posted on 07/04/2011 7:44:49 PM PDT by BladeBryan
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73 posted on 07/04/2011 7:48:00 PM PDT by musicman (Until I see the REAL Long Form Vault BC, he's just "PRES__ENT" Obama = Without "ID")
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To: sourcery

Your quote from Wong Kim Ark does not say what you claim it does. The phrase it uses is “natural born subject.” It uses that phrase for the very good reason that it’s not ruling (making a precedential holding) about US law, rather is making a dictum about British law (about which it has no authority to rule precedentially.)


In the US government’s briefs for Wong Kim Ark, the government asked:
“The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen.” (p.2)

The government went on to ask:
“Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth? (p. 34).
http://www.scribd.com/doc/23965360/Wong-Kim-Ark-US-v-169-US-649-1898-Appellants-Brief-USA

The majority opinion in Wong did go on to say: “’Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ’subjects,’ for we are equally bound by allegiance and subjection to the government and law of the land.’”


74 posted on 07/04/2011 7:48:11 PM PDT by jh4freedom (Mr. "O" has got to go.)
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To: BladeBryan
It's clear you have no law degree, or you'd understand the difference between dicta and a holding. You'd also understand that the Wong Kim Ark Court would not have used the 14th Amendment to decide the issue before them, could they have reached the same result based solely on the idea that US Constitutional law grants citizenship based on inheriting the semantics of "natural born subject."

Also, it must be noted, that nowhere in Wong Kim Ark does the Court even emit dicta to the effect that a "natural born citizen" is anyone born in the US, who was "subject to the jurisdiction thereof" at birth. In fact, the term "natural born citizen" occurs nowhere in the opinion.

Y'all seem to keep forgetting that the issue isn't whether anyone is a citizen (which was the only issue in Wong Kim Ark), but rather who is or is not a "natural born citizen."

75 posted on 07/04/2011 7:52:45 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: sourcery

sourcery wrote:
“The validity of each and every Supreme Court decision issued wherein Chief Justice Gray either wrote the majority opinion, or which was a 5/4 decision, depends utterly on the whether or not the President who appointed him (Chester Arthur) was Constitutionally President.”

First, that’s a laughable bit of self-delusion. Second, U.S. v. Wong Kim Ark was decided 6 to 2.


76 posted on 07/04/2011 7:57:19 PM PDT by BladeBryan
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To: jh4freedom
The lower court used incorrect language. The Supreme Court corrected the error by restating the question before the court to be (beginning of the opinion):
The question presented by the record is whether a child born in the United States, of parents 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 by virtue of the first clause of the Fourteenth Amendment of the Constitution

The Court very correctly continues by never once uttering the phrase "natural born citizen" anywhere in the opinion.

77 posted on 07/04/2011 7:59:07 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan

But Justice Gray wrote the majority opinion. Which he could not Constitutionally do, if he was not actually appointed by an actual President.


78 posted on 07/04/2011 8:00:20 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: Mr Rogers

“Go further connects the second sentence with the first, and explains that some authorities go further in their definition and include those born of non-citizen parents.” Nice try. What the second sentence is saying is, ‘some go further to declare as citizens ...’ It is really so simple you can’t even gnarl it up with your dissembling. ‘As to the definition of Natural Born Citizen, there can be no doubt’ ... even if the almighty obamanoid Rogers continues to strain at the gnats. Bwahahahaha


79 posted on 07/04/2011 8:00:40 PM PDT by MHGinTN (Some, believing they can't be deceived, it's nigh impossible to convince them when they're deceived.)
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To: The Big T
Gee, n00b, just getting caught up in your assignments? ... Your hero is a liar, too:
"There appears to zero support for your position in the conservative, constitutional legal community. What do you attribute that to?" Tell a lie often enough and it might just get credulity, eh n00b?
80 posted on 07/04/2011 8:03:45 PM PDT by MHGinTN (Some, believing they can't be deceived, it's nigh impossible to convince them when they're deceived.)
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To: BladeBryan
You seem to have answered your own question.

Yes, and the answer is that until the 14th Amendment was passed and then finally applied for the first time (on this particular question) by the Court in Wong Kim Ark, it was NOT the case that anyone born in the US was Constitutionally a citizen. What was true, and what the Court meant (read carefully, now) was that US law generally granted citizenshp to anyone born here. But the law that did that was Congressional statute, which Congress had the authority to make law solely by reason of the Constitutional grant of authority to "make uniform rules regarding naturalization."

If the Constitution directly granted citizenshp to whomever was born here before the passage of the 14th Amendment, then why was the Amendment passed in the first place with the citizenship clause? Of course, the 14th Amendment has more to say, and so has other effects. What's the reason for its first clause? Remember, Marbury vs. Madison requires that every clause in the Constitution must have substantive effect. We are not allowed to assume the first clause of the 14th is redundant or does not change the law in some way.

81 posted on 07/04/2011 8:15:10 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: sourcery

sourcery “It’s clear you have no law degree, or you’d understand the difference between dicta and a holding.”

What’s clear, sourcery, is that you are desperately grasping for anything that will let you deny that Obama is president. Neither you nor I are constitutional scholars. One of us is pretending to be.

What of the Court’s opinion WKA is dicta? Last I heard, legal scholars were still arguing that. Your pretension to such expertise is pure fantasy. Parts of WKA that I quoted here have been cited by other courts and real legal scholars.

The Court of Appeals of Indiana took WKA as “guidance”, if not binding precedent, on the very issue in question here. The three-judge panel unanimously agreed: “Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.” [Ankeny v. Daniels]


82 posted on 07/04/2011 8:16:14 PM PDT by BladeBryan
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To: BladeBryan
Actually, using the NBC issue to remove Obama from office would be the WORST mistake pro-Constitutionalists could possibly make. It would make him a martyr politically, and would probably ensure anti-Constitutionalist domination of the US for decades, if not centuries.

No. I sincerely hope that the SCOTUS does not take up this issue until after Obama leaves. Then, and only then, would it be safe for the SCOTUS to rule he never was President. I suspect the Conservatives on the Court have decided the same, probably for the same reasons.

83 posted on 07/04/2011 8:21:12 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan
Parts of WKA that I quoted here have been cited by other courts and real legal scholars.

Lawyers and judges disagree all the time regarding what is and is not dicta. And it's common for courts (and legal briefs) to cite dicta in support of their rulings or pleadings. If it's dicta, it's not binding, but it can still be persuasive—either because of who said it, or by the force of the words themselves.

84 posted on 07/04/2011 8:32:59 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan
Ankeny v.s Daniels will be overruled as in contradiction to the controlling Supreme Court precedent in Minor. If the issue is ever decided by SCOTUS with its current membership. Which it may not be (a deliberately ambiguous qualification)
85 posted on 07/04/2011 8:35:36 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: sourcery
sourcery wrote:
What was true, and what the Court meant (read carefully, now) was that US law generally granted citizenshp to anyone born here. But the law that did that was Congressional statute, which Congress had the authority to make law solely by reason of the Constitutional grant of authority to "make uniform rules regarding naturalization."
Can you show me one or more Congressional statutes from before the 14'th Amendment that that granted citizenship to those born in the U.S.? I'd like to see them, because I doubt your history here.
If the Constitution directly granted citizenshp to whomever was born here before the passage of the 14th Amendment, then why was the Amendment passed in the first place with the citizenship clause?
Because before the 14'th Amendment, citizenship by birth on the soil was governed by the individual states. The Civil War Amendments, the 13'th, 14'th, and 15'th, shifted power from the states to the federal government.
86 posted on 07/04/2011 8:36:18 PM PDT by BladeBryan
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To: sourcery

sourcery wrote: “Ankeny v.s Daniels will be overruled as in contradiction to the controlling Supreme Court precedent in Minor”

Ah, so now you are citing *imaginary* court decisions.


87 posted on 07/04/2011 8:37:37 PM PDT by BladeBryan
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To: BladeBryan

No, just predicting. And even including some humor. Lighten up, man.


88 posted on 07/04/2011 8:40:26 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan
Can you show me one or more Congressional statutes from before the 14'th Amendment that that granted citizenship to those born in the U.S.? I'd like to see them, because I doubt your history here.

Certainly!

89 posted on 07/04/2011 8:41:59 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan
See also: Statute, by birth within U.S.
90 posted on 07/04/2011 8:45:24 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: BladeBryan
Actually, before the 14th Amendment, US citizenshp was limited to two classes: Those granted citizenshp by Congressional statute (which included some of those born on US soil, since there was in fact a statutory provision for that case,) and those who had natural citizenship without recourse to Congressional statute. Which the Court in Minor held included only those born on US soil to parents who were US citizens.
91 posted on 07/04/2011 8:49:27 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: MHGinTN

OK, then out of the dozen or more conservative constitutional law foundations, name one who supports this idea. There is a reason why birthers have no ‘credulity.’


92 posted on 07/04/2011 8:49:35 PM PDT by The Big T
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To: sourcery

The lower court used incorrect language. The Supreme Court corrected the error by restating the question before the court to be (beginning of the opinion):
The question presented by the record is whether a child born in the United States, of parents 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 by virtue of the first clause of the Fourteenth Amendment of the Constitution
The Court very correctly continues by never once uttering the phrase “natural born citizen” anywhere in the opinion.


The quote was from the Appellant’s (government’s) brief. It was not a statement of the Court.

Wong Kim Ark has been cited more than 1000 times in subsequent court decisions and as recently as 2009 concerning the natural born citizen status of Barack Obama.
The Indiana Court of Appeals ruled that it was constitutional for Obama to receive Indiana’s Electoral College votes as a natural born citizen and they based their decision, in part, on the precedent established in Wong Kim Ark.
At the Supreme Court, Justice Scalia has written in several concurrences that there are only two forms of US citizenship for all Americans: born citizenship and naturalized citizenship. There is no difference in the law between a Citizen of the United States at birth and a “natural born citizen.”


93 posted on 07/04/2011 8:52:00 PM PDT by jh4freedom (Mr. "O" has got to go.)
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To: sourcery

sourcery: “Actually, before the 14th Amendment, US citizenshp was limited to two classes: Those granted citizenshp by Congressional statute (which included some of those born on US soil, since there was in fact a statutory provision for that case,) and those who had natural citizenship without recourse to Congressional statute.”

I guess that means you read your own citations and found that you were wrong. On the other hand, when I wrote “before the 14’th Amendment” I overlooked the Amendment’s immediate predecessor, the Civil Rights Act of 1866.


94 posted on 07/04/2011 9:09:34 PM PDT by BladeBryan
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To: The Big T

N00b, having nothing to say is not the same as saying a negative on the issue. But we understand your need to push the current talking points strategy perhaps thought up by David Axelgreasy.


95 posted on 07/04/2011 9:13:29 PM PDT by MHGinTN (Some, believing they can't be deceived, it's nigh impossible to convince them when they're deceived.)
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To: sourcery

From that link:

Eligibility for office of President

According to the Constitution of the United States only natural born citizens are eligible to serve as President of the United States or as Vice President. The text of the Constitution does not define what is meant by natural born: in particular it does not specify whether there is any distinction to be made between persons whose citizenship is based on jus sanguinis (parentage) and those whose citizenship is based on jus soli (birthplace)


96 posted on 07/04/2011 9:22:29 PM PDT by El Sordo (The bigger the government, the smaller the citizen.)
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To: sourcery

“No, just predicting. And even including some humor. Lighten up, man.”

Lighten up? In case you haven’t noticed, I think you guys are hilarious.


97 posted on 07/04/2011 9:24:37 PM PDT by BladeBryan
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To: sourcery

“All else is either dicta”

Yet you birthers quote Minor, which didn’t even try to determine citizenship, other than to note the woman was a citizen before the 14th Amendment passed!

The “dicta” in WKA is a recital of court cases starting from the time of the colonies, showing how NBC was used in the law. It isn’t making a decision, just showing why no one had questioned it before.


98 posted on 07/04/2011 9:34:19 PM PDT by Mr Rogers (Poor history is better than good fiction, and anything with lots of horses is better still)
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To: El Sordo
The text of the Constitution does not define what is meant by natural born: in particular it does not specify whether there is any distinction to be made between persons whose citizenship is based on jus sanguinis (parentage) and those whose citizenship is based on jus soli (birthplace)

True. So everythng depends on the semantics of "natural born citizen." An issue for which the Constitutional authority to decide rests with the Supreme Court. Who decided in Minor that it means "born in the US to parents who were citizens."

99 posted on 07/04/2011 9:34:50 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: MHGinTN
Thank you for confirming my assertion. Best of luck on your quest.
100 posted on 07/04/2011 9:41:53 PM PDT by The Big T
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