Skip to comments.Wong Kim Ark dissent agreed with majority; NBC is separate from the 14th amendment
Posted on 02/29/2012 2:58:09 PM PST by edge919
Contrary to uninformed opinion, the ruling in U.S. v. Wong Kim Ark (WKA) did NOT make natural-born citizens of everyone who was born in the U.S. One of the best ways to understand this is by reading the dissent, which defined natural-born citizens (NBC) directly from Vattel's Law of Nations.
Before the Revolution, the view of the publicists had been thus put by Vattel:
The natives, or natural-born citizens, are those born in the country of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.
Justice Fuller tells us where Justice Waite got his "common-law" definition of NBC in the Minor v. Happersett decision. Fuller says, "prior to the Revolution" and Waite said "with the nomenclature of which the framers of the Constitution were familiar." The latter definition was quoted in full by the majority in the WKA decision, and the holding of the decision affirmed that Virginia Minor was found to be a citizen by BOTH place of birth and by having citizen parents, even though the Minor case did not say so directly:
Chief Justice Waite said: "Allegiance and protection are, in this connection" (that is, in relation to citizenship),
reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.
The question that cannot be answered by Obots and Obama apologists, at least not honestly, is why the court included the citizenship of Minor's parents if not for how it is used to specifically define NBC. This is the last point in the majority opinion where the term "natural-born citizens" is used. The opinion continues for another 25 pages, where the majority deftly switches to a discreet term of citizenship based solely on the 14th amendment.
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth 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, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
Notice that this definition is based ONLY on the 14th amendment, and it does NOT say that it covers the children born in the country of citizens, but instead, only of "resident aliens" minus the exclusions pertaining to the subject clause. Lest there be any doubt, the dissent AGREED with this definition, even using the same term "citizenship by birth."
In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens ...
The parents permanently located here who might become citizens are "resident aliens," which was the term used by the majority. Fuller is saying the children of resident aliens are NOT excluded from becoming citizens by the 14th amendment, which means he AGREED with the majority's citizenship by birth definition. He used the same term exclusively while arguing that NBC was defined by Vattel. The majority cited Minor for the definition of NBC and noted that the 14th amendment does NOT define NBC. But, if there's doubt, look back a little in the dissent:
I think it follows that the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the Fourteenth Amendment overrides both treaty and statute. Does it bear that construction, or rather is it not the proper construction that all persons born in the United States of parents permanently residing here and susceptible of becoming citizens, and not prevented therefrom by treaty or statute, are citizens, and not otherwise.
Fuller's only dispute was that the 14th amendment does not override a treaty with China that prevented its subjects from becoming foreign citizens, including their children. He asks if it is NOT the proper construction that the 14th amendment makes citizens of the children born in the U.S. of parents with permanent residence and suceptible of becoming citizens, which means "resident aliens."
Some Obots point to this paragraph as proof that Fuller thought WKA was a natural-born citizen:
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.
First, the majority never makes such a statement. This is Fuller addressing a question brought up by the appellant, which the majority punted. Fuller did drectly argue that the majority opinion made aliens of those who were born abraod to citizen parents, but he never argues that the decision makes Ark an NBC. Second, Fuller's comment makes no sense when he argues that persons born of resident aliens can be citizens under the 14th amendment. Again, his reason for dissent was based on the treaty with China, not on how the majority defined citizenship by birth via the 14th amendment.
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." And he proceeded to resort to the common law as an aid in the construction of this provision.
The only common law used to define NBC was a verbatim match of Vattel ... and "citizenship by birth" was defined by the 14th amendment ONLY for resident aliens excluding "children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." NBC are NOT excluded by the subject clause, but from the birth clause. And one more noteworthy tidbit, the majority cited a very specific case that was controlling and helped explain why children born of resident aliens were NOT citizens at birth prior to the 14th amendment:
The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races, and unless the general rule, that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the language, "all persons born in the United States, and subject to the jurisdiction thereof," was intended [p693] to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race.
Is everyone understanding this?? The majority affirmed that the rule that applied to white people prior to the 14th amendment was that children born in the U.S. to resident aliens were NOT subject to the jurisdiction of the United States. This means they were foreigners or aliens, which helps put the Minor definition in much "Fuller" perspective (pun intended) when it distinguishes NBCs from the latter:
... all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.
The NBC definition is self-limiting because PRIOR to the 14th amendment, children born of resident aliens are themselves aliens or foreigners. While they would come to be recognized as citizens along with the recently freed slaves, they were not and could not be natural-born citizens unless they were born to citizen parents.
Obamma’s reply..... I sit in a Volt de utter day, it felt guud. Gonna git me one in 5 years or 5 months whichever comes furst.
Two election cycles, four presidential candidates and two possible VP candidates, none of whom are Natural Born Citizens. Anyone who thinks this is a coincidence, get in the corner and wear that hat.
Rawle’s opinion is trumped by 18 SCOTUS justices who defined NBC as “all children born in the country to parents who were its citizens.”
WKA is bizarre anyway. How can the Supreme Court assert that the US incorporates the British common law definition of who is a citizen. What was the War of 1812 fought over? Whether Britons could become Americans by naturalization. Obviously the US didn’t adopt the British common law definition of a subject.
It was part of thedicta of the case -- not the ruling. It has no effect on the concept of natural born citizenship.
And the Founding Fathers based their concept of natural born citizenship on the writings of someone named Vattel -- not Black.
p.s. If the German Weimer Constitution had a natural born citizenship clause like the superior American Constitution, then, maybe, Austrian born, Adolf Hitler, would not have become Reich Chancellor of Germany.
Glad you brought up William Rawle. His father died when he was two. His Step Father was a British Loyalist supporting the Monarchy during the Revolutionary war. He was trained in Law in London England. Why would you think he would be a good reference as to what were the intentions of the Founders? (Who were on the OTHER side of the conflict.)
According to Richard W. Flournoy, citing ATTY General Black, (1922) British trained lawyers was a serious problem during this era.
Richard W. Flournoy, citing ATTY General Black.
Attorney-General Black, whose opinion of July 4, 1859, concerning the case of Christian Ernst, a naturalized American citizen of Hanoverian origin who was arrested upon his return to Hanover, has become a classic on this subject. It seems worth while to quote from this notable opinion:
The natural right of every free person, who owes no debts and is not guilty of any crime, to leave the country of his birth in good faith and for an honest purpose, the privilege of throwing off his natural allegiance and substituting another allegiance in its placethe general right, in one word, of expatriationis incontestible. I know that the common law of England denies it; that the judicial decisions of that country are opposed to it; and that some of our own courts, misled by British authority, have expressed, though not very decisively, the same opinion. But all this is very far from settling the question. The municipal code of England is not one of the sources from which we derive our knowledge of international law. We take it from natural reason and justice, from writers of known wisdom, and from the practice of civilized nations. All these are opposed to the doctrine of perpetual allegiance. It is too injurious to the general interests of mankind to be tolerated; justice denies that men should either be confined to their native soil or driven away from it against their will.
And therein lies another salient point. The Common Law of England was that Allegiance was perpetual and could not be thrown off.
How foolish is it to throw off the English law of Allegiance, yet claim the *means by which that collar was placed around our neck?
* Jus Soli is a law of Feudal Lordship. It's purpose is to bind the serfs to their masters soil. As a Monarchical based law, it is not an appropriate way to define the citizens of a Free Republic.
Maybe because George Washington appointed him the first United States Attorney for Pennsylvania?
Absolutely. It is all the more curious because Wong Kim Ark did not even discuss the War of 1812, and the impressment of Americans into the British Navy. A more salient renunciation of the British Common Law doctrine can hardly be conceived. Here is a piece of information of which many people may not be aware. Years prior to the War of 1812, Congress voted to require all crew officers and 3/4ths the Crew Members of American Sailing ships to be "natural born citizens."
That he may have been a good lawyer says nothing of his knowledge of the Founders intentions in Article II. Seeing as he grew up in the opposite political camp he is hardly what I would call a good reference on the Subject. Should we ask Jefferson Davis's opinion of Lincoln's policies?
I notice you make no effort to address the other parts of my message, but instead concentrate on this irrelevant aspect of his credentials. Is your argument so small of breadth and shallow of depth?
English common law formed the basis of every state’s law except for Louisiana. Every state passed reception statutes legally incorporating English common law into their legal system.
Examples of reception statutes
Virginia, Va. Code §§ 1-200, 1-201, www.state.va.us/cmsportal3/government_4096/codes_and_laws.html
§ 1-200. The common law.
The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.
(Code 1919, § 2, § 1-10; 2005, c. 839.)
§ 1-201. Acts of Parliament.
The right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, shall still be saved, insofar as the same are consistent with the Bill of Rights and Constitution of this Commonwealth and the Acts of Assembly.
(Code 1919, § 3, § 1-11; 2005, c. 839.)
Virginias 1776 statute stated: [The] common law of England, [and] all statutes or acts of Parliament made in aid of the common law prior to the fourth year of the reign of King James the first . . . shall be considered as in full force, until the same shall be altered by the legislative power of this colony.
North Carolina, N.C. Gen. Stat. § 4-1 (1999), www.ncga.state.nc.us/gascripts/statutes/Statutes.asp
§ 4 1. Common law declared to be in force.
All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State. (1715, c. 5, ss. 2, 3, P.R.; 1778, c. 133, P.R.; R.C., c. 22; Code, s. 641; Rev., s. 932; C.S., s. 970.)
Alabama, Ala. Code § 1-3-1 (1975), www.alabama.gov/portal/index.jsp
Common law of England adopted.
The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature.
(Code 1907, §12; Code 1923, §14; Code 1940, T. 1, §3.)
There is no mention that Mr Pitkin’s amendment ever being voted on, much less passed. “And debate arising, the House adjourned ...” is all it says.
The only contrary authority is Minor which was much later; is not conclusive (it said only that there were "doubts" as to whether children of aliens were NBCs, and didn't resolve those doubts); and is pure dictum (whether Mrs. Minor was an NBC had nothing to do with the result of the case).
Well enough. Let's say for the sake of argument that it never passed. I thought it was an interesting window into their thinking nonetheless. How would it affect the debate one way or the other? I couldn't say. I'm not going to look for the act of passage at this time. If you've looked through the Congressional Globe, you know how much of a pain it is to follow.
In any case, England did indeed grab our sailors and make them serve in the English Navy, and that was the Casus belli for the War of 1812. The War of 1812 was explicitly fought to define the distinction between a British Subject and an American Citizen. Funny that Wong Kim Ark found it unworthy of mention. It was after all only a MAJOR FREAKIN WAR! WITH ENGLAND! OVER CITIZENSHIP!
The British Navy only impressed naturalized US citizens - those not born on American soil. They did not impress natural born American citizens - and that included those born in the former colonies.
So the issue was British recognition of US naturalization laws. They respected and recognized natural born citizenship because it was based their understanding of citizenship.
So why would WKA mention the War of 1812? The British respected US natural born citizenship.