Wong Kim Ark dissent agreed with majority; NBC is separate from the 14th amendment

Vanity ^ | 02-29-2012 | edge919

[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.

[DiogenesLamp]

All of the Founders were trained in English law,

They were trained in English Law procedure, not inapplicable English Law Statues. (especially those rejected by the founding of the nation, such as Perpetual allegiance and the National Clergy.) They were using Vattel as their textbook on International law (of which citizenship is a subcategory) at William and Mary's, and other colleges too. Rawles was trained in English LAW, and IN ENGLAND. As Madison said, much of what had been Common Law was improved upon by the state legislatures in the form of statute law.

and the Supreme Court has said dozens of times that terms in the Constitution are to be construed in accordance with English common law.

It also said in Marbury v Madison (you may have heard of it.) that a provision of the constitution may not be interpreted in such a way that it has no purpose. Article II, if interpreted under jus soli, serves no purpose. Neither does "subject to the jurisdiction thereof" in the 14th amendment. If being born on the soil automatically makes you "subject to the jurisdiction thereof" the clause itself is inoperative.

Rawle wrote the first book ever written on U.S. Constitutional law, but Rawle is not the only author from the founding era to explain "Natural Born Citizen" by reference to jus solis.

Well, i'll see your Jack (1829 Rawle), and i'll raise you two Aces. (1814 supreme court justices.)

The Venus, 12 U.S. 8 Cranch 253 253 (1814)

Supreme Court Justice Washington:

"1. The writers upon the law of nations distinguish between a temporary residence in a foreign country for a special purpose and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel "domicile," which he defines to be, "a habitation fixed in any place, with an intention of always staying there." Such a person, says this author, becomes a member of the new society, at least as a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens, but is nevertheless united and subject to the society without participating in all its advantages. This right of domicile, he continues, is not established unless the person makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. Vatt. 92-93. Grotius nowhere uses the word "domicile," but he also distinguishes between those who stay in a foreign country by the necessity of their affairs or from any other temporary cause and those who reside there from a permanent cause. The former he denominates "strangers" and the latter "subjects," and it will presently be seen by a reference to the same author what different consequences these two characters draw after them.

Chief Justice Marshall:

The whole system of decisions applicable to this subject rests on the law of nations as its base. It is therefore of some importance to inquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character of the nation in which they reside.

Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says

"The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights."

"The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state while they reside there, and they are obliged to defend it because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the laws or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages."

"The domicile is the habitation fixed in any place with an intention of always staying there. A man does not, then, establish his domicile in any place unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not remove his domicile elsewhere. In this sense, he who stops, even for a long time, in a place for the management of his affairs has only a simple habitation there, but has no domicile."

A domicile, then, in the sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but "an intention of always staying there." Actual residence without this intention amounts to no more than "simple habitation."

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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).

You may call it dicta, but it is likewise a window into their understanding, and according to THEIR understanding, a natural born citizen is one born to two citizen parents. Also, there are plenty of contrary authorities other than Minor. The Slaughterhouse cases, Perkins v Elg, Ex Parte Reynolds, etc.

The most obvious authority is the Treaty of 1883, which designated who would be considered an American and Who would be considered British, though all were born on the soil. How do you reconcile the fact that British Loyalists were born on American soil with your theory that anyone so born must be American? (Except Indians, Slaves, and the Children of Foreign Diplomats. :) )

[Mr Rogers]

“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.”

As usual, you are so full of crap that there is no hope of digging you out.

Anyone who doubts me can read the full decision here:

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

[philman_36]

And Sr's intent was to get a degree and go back to Kenya. As I've said before...he never intended to become a citizen.

[philman_36]

You should know that isn't going to work! The whole paragraph with link...your snippet in italics.

@William Rawle, A View of the Constitution of the United States 84--101 1829 (2d ed.)

The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths, accompanied them in the formation of the great, compound commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former, and he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. It is an error to suppose, as some (and even so great a mind as Locke) have done, that a child is born a citizen of no country and subject of no government, and that he so continues till the age of discretion, when he is at liberty to put himself under what government he pleases. How far the adult possesses this power will hereafter be considered, but surely it would be unjust both to the state and to the infant, to withhold the quality of the citizen until those years of discretion were attained. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.

[philman_36]

And as noted in reply 24 he took the quote out of context.

[philman_36]

And since you never answered my question before I’ll ask it again...were those laws later amended?

[philman_36]

...and is pure dictum...
That fails too as it's well known what is in the holding of the Court.
Dictum isn't used in a holding.

[philman_36]

The British Navy only impressed naturalized US citizens - those not born on American soil.
How did the British know who they impressed? Did they make them show a copy of their birth certificate while they were at sea?

I would find what you have to support your assertion to be most interesting reading. Got link?

[philman_36]

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... Not "by virtue of" Article 2, Section 1.
The question was answered... 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. Thanks again for playing.

[philman_36]

Is your right to free speech yours by virtue of the First Amendment or is it a natural right that no law can abridge?

[Seizethecarp]

FYI, the latest filings by Barry’s defense team in GA and PA cite not just the Indiana Ankeny case but now also a recent federal 9th Circuit case (of course) that has what appears to be only dicta supporting a claim that an illegitimate child of a US citizen father and an alien mother born on foreign soil is a natural born citizen because the child is a “citizen at birth.”

United States v Marguet-Pillado 9th Cir. 2009

www.ca9.uscourts.gov/datastore/opinions/2011/08/.../10-50041.pdf

On page 10805 of the opinion it is stated:

“No one disputes that Marguet-Pillado’s requested
instruction was ‘an accurate statement of the law,’ in that it correctly stated the two circumstances in which an individual born in 1968 is a natural-born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements.”

[Harlan1196]

The point is that the Founding Fathers did not see anything wrong with the English common law. They had every intention that America’s legal system would have its foundation the common law that they were so familiar with. Why do you think the Constitution is full of English legal words for example? So the notion that they would throw away the legal concepts they were so familiar with and adopt Vattell’s definitions is revisionist history of.the worst kind.

To answer your question, most states still have those statutes on the books. However the English common law became less and less important as states passed their own laws and built their own common law.

[philman_36]

Why do you think the Constitution is full of English legal words for example?
What other legal words would they have chosen? Those "legal words" weren't unique to English law were they? Didn't many countries have similar "legal words"?

To answer your question, most states still have those statutes on the books.
Up to your usual tricks of not answering my question. Once again...
Were those laws later amended?
The last time you did this you had the amended date on them. Should I find your reply to remind you?

[philman_36]

So thaaaaaaaat's what the latest push is all about.
Thanks for the info.
Got links to those "latest filings by Barry’s defense team in GA and PA"?

[Seizethecarp]

I suspect that Leo Donofrio would be horrified, yet not surprised, to see the desperation exhibited by Barry's team in citing US v Marguet-Pillado as the ONLY federal case supporting Barry's eligibility (and attempting to reverse Minor v Happersett without saying so). He might even want to do an article on this travesty.

[Harlan1196]

Can you explain why the fact that WKA doesn’t discuss the war of 1812 has any signifigance?

If citizenship was such a pressing issue, why doesn’t the Treaty of Ghent make mention of it? What legal issue involving NBC was resolved by the war to warrant mention in WKA?

[Red Steel]

United States v Marguet-Pillado 9th Cir. 2009

... (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements.”

So a person can be a natural born citizen of multiple countries at once? Think about it. Is this the meaning of the US Constitutional natural born citizen clause?

So, I see the 9th Circus wrote this stuff in an attempt to cover for Obama in 2009.

[Harlan1196]

The dates are on my reply - it exactly the same as my previous answer.

So what’s your point? Immediately after the revolution all the states adopted English common law. States that joined the union years later also adopted English common law. Why would they do that if they were rejecting all thing English?

What are you trying to get at here?

[Red Steel]

Hey spamBOt from Foggyland. I see you’re still hard at work on FR spamming Bull crap.

[philman_36]

Ah, found one...@Powell v Obama, Brief in Support of Respondent’s Motion to Dismiss, Fulton County Superior Court, 2-27-2012