Gray says they were dealing with the child of "Scotch" parents. That would be European and alien. Domicil was applied by the court to make the child subject to the jurisdiction of the United States.
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.
It wasn't before the 14th amendment. Here's the quote:
In a very recent case, the Supreme Court of New Jersey held that a person born in this country of Scotch parents who were domiciled but had not been naturalized here was "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment, and was "not subject to any foreign power" within the meaning of the Civil Rights Act of 1866 ...
Gray said this was "a very recent case." Wong Kim Ark was decided in 1898, about 30 years after the adoption of the 14th amendment. This case is being cited to give the court a basis for defining what the subject clause requires in the 14th amendment. Since it pertains to the decision, it's not just dicta.
Gray cites it to make a point about domicil and jurisdiction regarding the 14A; NOT about pre-14A common law citizenship.
Sorry, but this is nonsense. Gray's whole point in reviewing English common law is to establish a legal foundation on which to buttress the 14th amendment. The court was faced with a treaty from China that explicitly disallowed foreign citizenship to its subjects. The Constitutions places treaties on the same level as the Constitution itself and the laws arising under it. IOW, the only way the Constitution can override a treaty would be if there was some stronger historically established legal principle to fall back upon. Gray's solution is what he called the "ancient" and "fundamental rule of citizenship by birth." The dissent wasn't buying this. The dissent agreed that children of aliens could be born citizens under the 14th amendment if their parents had permanent domicil, but only if there was not a treaty to the contrary, such as with China.
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.
Yes, and you'll notice Gray doesn't stop at those citations as being controlling. If they were, then the decision could wrap up very tidily at that point. Instead, Gray continues another 45 pages trying to come up with a stronger legal justification to make Wong Kim Ark a citizen under the 14th amendment.
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.
Gray goes into quite a bit of detail on the subject of reisdence and domicil. I had counted about 12 different references. Read the introduction of the case and then the conclusion. Both make it a point to include the permanent residence and domicil of the parents. The parents weren't citizens, so this was his way of making them subject to the jurisdiction under the 14th amendment.
(intro) His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China, and during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to-wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence, and neither he nor his parents acting for him ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him [p653] therefrom ...
(the question as posed in the intro): 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,
Notice that the question is whether Ark becomes a citizen by virture of the first clause of the 14th amendment. If there truly was an ancient and fundamental rule of citizenship by birth for children of aliens and that such a rule defined natural-born citizens, then certainly that rule would have been applied without the 14th amendment, right?? But let's look at the conclusion, which is carefully crafted to conform to the subject clause:
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
The question is framed to fit the subject clause of the 14th amendment and to satisfy that clause through permanent residence and domicil of the parents. Obama didn't have that. And obviously, neither does Cruz.
In a very recent case, the Supreme Court of New Jersey held that a person born in this country of Scotch parents who were domiciled but had not been naturalized here was "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment, and was "not subject to any foreign power" within the meaning of the Civil Rights Act of 1866 ...
And, true to what I said, neither this case (nor any other) ever ruled that a person born here to alien (European) parents was not a citizen. The child in the New Jersey case was ruled to be a citizen. When I referred to "before the 14A" I was speaking of the portion of the opinion Gray quotes wherein the NJ court was making a comparison of the legal standing of black and white persons before the enactment of the 14A:
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.
"Were" speaks to a time past -- before the 14th Amendment. The Court is giving its view of how black and white persons would have been treated then, but my point (again) is that there was never actually a case that ever held that the child of alien Euorpean parents born here was not a citizen. So Gray's statement -- "before . . . the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners . . . were native-born citizens of the United States." -- entails no contradiction.
Gray's whole point in reviewing English common law is to establish a legal foundation on which to buttress the 14th amendment. The court was faced with a treaty from China that explicitly disallowed foreign citizenship to its subjects. The Constitutions places treaties on the same level as the Constitution itself and the laws arising under it. IOW, the only way the Constitution can override a treaty would be if there was some stronger historically established legal principle to fall back upon. Gray's solution is what he called the "ancient" and "fundamental rule of citizenship by birth."
You're collapsing the opinion way too much here and connecting things that shouldn't be connected, while skipping past things that should be connected. Gray reviews the common law to show how it underpins the meaning of the 14th amendment's "born in" clause; not to buttress the Amendment against some treaty challenge. Here's the long, but necessary run through the reason Gray goes back to the common law.
But WKA traces the meaning of "born . . . in the United States, and subject to the jurisdiction" by noting the common law origins of the phrase:
The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States."
* * *
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.
So Gray notes that words of the original constitution ("citizen of the U.S." and "natural born citizen") are defined in part by the affirmative statement in section 1 of the 14th Amendment. But then he states the rule that original Constitutional terms are to be understood in light of the history of the English common law, because that's the legal language understood and utilized by the Framers. So the English common law sheds light on the meaning of "natural born citizen," which in turn ties into the meaning of "born . . . in the U.S., and subject to the jurisdiction thereof" in the 14A.
The Court then again indicates the principle of consitutional interpretation by which terms used are understood by reference to English law, here citing to Smith v. Alabama
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.
Gray divides his opinion into 7 enumerated sections. Paying heed to this helps keep the logical flow of his argument clear when digesting this long opinion. After laying down the interpretative rule just noted, Gray in Part II traces the English law as it pertains to children of aliens, and summarizes that section thusly:
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.
Then starting Part III J Gray observes:
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.
This can ONLY mean (given that shortly after the Court states "natural born subject" and "natural born citizen" to be "precisely analogous" terms) that the prevailing "rule" in the U.S. was that every child born of alien parents was a "natural born citizen." There is no plausible alternative reading here.
In Part IV Gray considered the U.S. Goverment (and dissent) argument that Vattel and the law of nations has somehow altered the ancient common law rule and concludes it has not. It's at the very end of Part IV that Gray summarizes the analysis in Parts II thorugh IV with the statement I've quoted:
Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [p675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.
He then turns in Part V to demonstrate how "born in the U.S. . . and subject to the jurisdiction thereof" was a formal incorporation of the common law meaning of "natural born citizen" (same jus soli rule with the same exceptions, save for the addition of the additional case of Native Americans:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.
In Part VI Gray then turns to deal with the question whether the 14th Amendment applied equally to children born here of Asian parents. But by this point the common law analysis of Parts II and III is fairly distant. Part VI focuses soley on the legislative history of the Amendment; the common law isn't discussed.
Yes, and you'll notice Gray doesn't stop at those citations [Calvin's Case, etc.] as being controlling. If they were, then the decision could wrap up very tidily at that point. Instead, Gray continues another 45 pages trying to come up with a stronger legal justification to make Wong Kim Ark a citizen under the 14th amendment.
Well, of course, English case law is never going to be "controlling" in the sense of it being binding precedent. Gray undertakes the Part II analysis pursuant to the Smith v. Alabama rule of Consitutional interpretation that looks to English common law for the etymological and semantic basis of our original Constitutional terms, thus spending Parts II and III tracing the meaning of "natural born citizen" via the corresponding English term "natural born subject."
Gray goes into quite a bit of detail on the subject of reisdence and domicil. I had counted about 12 different references. Read the introduction of the case and then the conclusion. Both make it a point to include the permanent residence and domicil of the parents.
Gray's Part VI analysis is due to the Chinese Exclusion Act, which added a wrinkle pertinent to Mr. Wong that didn't exist generally as to the English/American common law rule that Gray sees as being incorporated into the 14th Amendment.
The parents weren't citizens, so this was his way of making them subject to the jurisdiction under the 14th amendment.
You here stop short analytically. It wasn't just that Wong's parents weren't citizens. Gray in Part II had roundly declared "therefore every child born in England of alien parents was a natural-born subject" and without missing a beat declared the "same rule" was true in the U.S. up through the Framing of the original Constitution and beyond. The issue here is that persons born in China could not be made to be citizens, so that adds an element to the analysis that isn't present in the case of non-citizen parents who were of European or African descent. Gray observes that the specific case of Chinese persons was debated before enactment of the 14th Amendment, so he takes some time to look at legislative history and subsequent cases dealing with the special circumstance of the Chinese.
If there truly was an ancient and fundamental rule of citizenship by birth for children of aliens and that such a rule defined natural-born citizens, then certainly that rule would have been applied without the 14th amendment, right??
If one was a white person (like Julia Lynch) one might reasonably anticipate that the ancient and fundamental rule would hold true. However, blacks and chinese tended to have a different standard applied to them. Hence the need for the uniformity and certainly that legislation and Constitutional amendment affords.
The question is framed to fit the subject clause of the 14th amendment and to satisfy that clause through permanent residence and domicil of the parents.
It is unclear what Gray means by "domicile." He could mean it in merely the sense of "temporary residence." Support for that is found earlier in several parts of the common law discussions in Parts II and III. For exampe:
Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject[.]"
And he seems to indicate the same as to the Chinese:
Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are " subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States.
In Part VII (to finish the list) Gray announces the decision in the case.
Obama didn't have that.
Obama had a citizen mother, which makes his case FAR stronger than Wong's. And this obviously isn't just my speculation and opinion: there are now a host of reported decisions which rather matter-of-factly apply Wong Kim Ark to find Obama is a NBC. And obviously, neither does Cruz.
The Cruz analysis goes off in a much different direction. That's for another time. This post is long enough.