No,there's no question the court made the claim in this paragraph, but my point was the use of the citation that I gave was an admission that their claim wasn't true. Most people would call this a contradiction; and I'm pretty sure there are some other contradictions in this ruling. It is an extremely long decision, but Gray was trying to come up with a convincing way to override a treaty with China. He had to contradict one of his own earlier rulings as well, but we'll save that for another time.
The comment in that case about children of slaves being like white children of aliens is obiter dicta, perhaps at most indicating one of those voices that made the matter "earnestly controverted."
It's NOT obiter dicta. Gray cited this case because it used permanent domicil as the basis for trying to satisfy the subject clause of the 14th amendment. Without that children of aliens would not have been presumed to be citizens, otherwise, there's no legal effect from talking about domicil.
But the WKA Court makes clear, as I've quoted above, the better view was that children of (white) aliens were -- before the 14th Amendment -- native born citizens.
Except that this is contradicted when the court talks about the case with Scotch parents. Simply being white aliens wasn't enough. They had to be domiciled in the U.S.
Because Viriginia Minor's argument was that the by virtue of being a "citizen" as stated by 14th Amendment, she was entitled to the "privileges and immunities" of such citizenship, which she interpreted as including the privilege of voting. The Court analyzed the common law to show that Minor unquestionably was a citizen even before the 14A, and that such citizenship before did not include the inherent right to vote. Since the 14A was declaratory of existing law (as to white persons), her being a citizen under the 14A gave her no greater privileges than before.
You're not addressing my actual question. Why are the citizen parents part of this definition?? I know why, and I'm betting you probably know why, but don't want to admit it. Second, you're ignoring a very important part of the Minor decision. They completely rejected the idea women have their citizenship conferred by the 14th amendment unless they are not already natural-born citizens.
The fourteenth amendment did not affect the citizenship of women any more than it did of men. - - - The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her.
The syllabus is perhaps even more explicit on this point.
... women, of born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.
Now, Wong Kim Ark claims there was a fundamental, common law rule of citizenship by birth that doesn't require citizen parents. YOU claimed that the Minor decision reviewed common law to come up with its citizenship definition, EXCEPT this definition DOES hinge on birth to citizen parents. So why does the Minor court talk about citizen parents if not for how it distinguishes natural-born from those who would only be native-born?? What other reason is there for talking about citizen parents?? blockquote
Me: Because Virginia Minor's argument was that the by virtue of being a "citizen" as stated by 14th Amendment, she was entitled to the "privileges and immunities" of such citizenship, which she interpreted as including the privilege of voting. The Court analyzed the common law to show that Minor unquestionably was a citizen even before the 14A, and that such citizenship before did not include the inherent right to vote. Since the 14A was declaratory of existing law (as to white persons), her being a citizen under the 14A gave her no greater privileges than before.
You: You're not addressing my actual question. Why are the citizen parents part of this definition?? I know why, and I'm betting you probably know why, but don't want to admit it.
I do know why and will freely explain it: because courts analyze and resolve issues based on the particular facts and question presented. They don't attempt to go beyond that to answer questions which aren't before them in that case.
Since Virginia Minor was U.S. born and had citizen parents, they needed only to ask whether such a person like her was a NBC at common law to establish was a citizen under the pre-14th amendment law. They answered she was.
However, since the case didn't present the question of someone born of alien parents, they don't purport to answer that question. They note there isn't unanimity of outlook on that point and leave the matter for another day. (That day arrives with Mr. Wong Kim Ark.)
Second, you're ignoring a very important part of the Minor decision. They completely rejected the idea women have their citizenship conferred by the 14th amendment unless they are not already natural-born citizens. The fourteenth amendment did not affect the citizenship of women any more than it did of men. - - - The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her.
It did not "confer" citizenship on her because she was already a citizen at the time the 14th Amendment was enacted. But "did not confer" is not the same as saying the 14th Amendment "does not apply" to her at all. Your argument seems to conflate these ideas. She was certainly a "person" who was "born in the United States" and was subject to its jurisdiction. Anyone born after the date of the enactment of the 14th Amendment falls both within the common law meaning of "natural born citizen" and the 14th Amendment: these are not mutually exclusive concepts. To the contrary, the Court later in WKA analyzes "natural born citizen" under the common law and "born . . . in the U.S., and subject to the jurisdiction thereof" to have the same meaning.
The syllabus is perhaps even more explicit on this point.
A case syllabus is not part of the opinion; it's added for convenience and should never be quoted.
YOU claimed that the Minor decision reviewed common law to come up with its citizenship definition, EXCEPT this definition DOES hinge on birth to citizen parents.
Many before me have made the point that the Minor court's statement isn't a definition. They aren't making any definitive statement as to whether persons of alien parentage are "natural born citizens" because that question wasn't raised by the facts of the case before them.
So why does the Minor court talk about citizen parents if not for how it distinguishes natural-born from those who would only be native-born?? What other reason is there for talking about citizen parents??
Because Virginia Minor having citizen parents made it a simple question to answer whether she was a citizen at birth. They thus didn't need to delve into the question of whether persons of alien parents born in the U.S. were ALSO native/natural-born citizens. Courts don't give "advisory opinions." They deferred the latter question to when a person born of alien parents was before them (so to speak) in court.
So it's not a "definition" (other than by way of partial inclusion) as they simply didn't consider the question in all facets. MvH is irrelevant -- affords no stare decisis (precedential) value -- in a case testing whether a person born of an alien parent(s) is "natural born." Utterly irrelevant. It didn't involve that question, didn't purport to answer that question, and explicitly stated it was NOT answering that question.
The New Jersey Court was speaking hypothetically; you will note it doesn't actually cite any case where the U.S.-born child of European alien parents was held to be still an alien. It's just stating what it thinks the rule would have been if such a case had arisen before the 14th Amendment. That's why it's dicta.
Most people would call this a contradiction;
At the start of the paragraph (one long sentence actually) I quoted Gray acknowledging matters "once earnestly controverted." So it's not like Gray says there was no split of view on this issue before saying "all (white) persons" were "native born citizens" farther down. But is this a true "contradiction?" Not necessarily. And the reason is there is no caselaw holding otherwise! On a question determined by the common law, caselaw is King. (That's what "common law" is. It's judge-made, decisional law.) Legal commentators do not set precedent. Dicta about what might have been the outcome had such a case once-upon-a-time actually been brought is not precedent. They may opine on what the common law is or was; but that's not the same as an actual case with a holding contrary to the point Gray makes.
Ergo, Gray doesn't contradict himself.
It's NOT obiter dicta. Gray cited this case because it used permanent domicil as the basis for trying to satisfy the subject clause of the 14th amendment. Without that children of aliens would not have been presumed to be citizens, otherwise, there's no legal effect from talking about domicil.
Gray cites it to make a point about domicil and jurisdiction regarding the 14A; NOT about pre-14A common law citizenship. He's already answered the citizenship status of pre-14th Amendment white children in the quote I gave above. This citation comes later and he's here moved on to a different point. So the comment in the quote about pre-14A white children is dicta, as -- read in context -- it is beside the point Gray then is trying to make.
Except that this is contradicted when the court talks about the case with Scotch parents. Simply being white aliens wasn't enough. They had to be domiciled in the U.S.
Gray's cited authorities are not uniform on the domicile point. Gray cites with approval Calvin's Case, which speaks of a person born in England to someone "temporarily" present as being "natural born subject," then says the "same rule" as held true in England was the rule here in the U.S. To what extent the "domicile" term in the final decision is an essential part, given that the discussion on this point is inconsistent is debatable. There is room for saying a true "birth tourism" baby isn't a citizen under Gray's opinion. Though probably less so for children of illegals, as they really WANT (for the most part) to stay here.
OK, this wasn't as long as I anticipated; sometimes posts come out different as one moves along. But I'm sure anticipated reply to one comment in the first post will bring into play all the stuff I planned initially.