You're missing the bigger picture. The question of citizenship to alien parents was still in front of this court which was trying to decide this issue well AFTER the passage of the 14th amendment. What Justice Gray called an "ancient and fundamental rule" was not being used as the guiding principle in this example.
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.
It's not clear why the NJ court would even needed to talk about the "colored people." As stated by Gray, the child in question weas born of "Scotch parents." In the Minor court, Waite made no bones of the fact that women, specifically Virginia Minor, did not need the 14th amendment. If the rule for white people born of aliens was in effect prior to the 14th amendment, then the NJ court shouldn't have needed to talk about the 14th amendment and making sure it applied to all races the same. It was clearly possible according to the Minor court to be citizens without the 14th amendment, yet the N.J. was still using the 14th amendment to justify its own decision.
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.
Nonsense. The court was split on its decision. The majority had to make a compelling argument in the face of the dissent that said the treaty prevailed, while at the same time figuring out a way to respect the unanimous Minor decision that exclusively defined natural-born citizens as born to citizen parents. The Minor decision had a two-part question it resolved in much fewer pages. Gray elaborated and meandered on the subject of citizenship and domicil to answer only one question. Why would the court waste it's time on unnecessary dicta?? The answer is that it didn't. It was trying to build a stronger legal argument to justify its decision.
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.
Have you not read the decision??
The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
The above sentence can ONLY be true if the court has a compelling method for satisfying the subject clause.
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.
That's not completely true. He said the 14th amendment did NOT say who shall be natural-born citizens.
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.
There's nothing in the decision that says this. Gray points to Minor, quotes its definition of natural-born citizen, and then never references the term again in the remainder of his decision. He couldn't. It did not apply to Ark.
Gray divides his opinion into 7 enumerated sections.
No kidding. You're starting to make my argument for me.
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.
Nonsense. The court NEVER says that "natural born subject" and "natural born citizen" are precisely analagous terms. And nowhere in the decision does it say that every child born of alien parents was a natural-born citizen. Gray was hamstrung by Supreme Court precedent in the form of a unanimous ruling that exclusively defined natural-born citizen as "all children born in the country of parents who were its citizens." Gray gives that definition verbatim but NEVER says anything that you've speculated here. One has to connect a lot of unconnected dots to do that.
Obama had a citizen mother, which makes his case FAR stronger than Wong's.
Not at all. His mother didn't have permanent residence and domicil in the U.S., and she in fact emigrated with her second foreign national husband. Obama can neither satisfy the subject clause and he has never legally proved he was born in the U.S. 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. brt have permanent residence and domicil in the U.S., and she in fact emigrated with her second foreign national husband. Obama can neither satisfy the subject clause and he has never legally proved he was born in the U.S.
Actually, no. The big picture here is that J. Gray is citing to a case that determined that a child born here of alien Scottish parents was a citizen, just like Gray was finding the child born here of alien Chinese parents was a citizen. So both get to the same result. Your attempt to point to the New Jersey case as some great contradiction shows how desperate your attempt to avoid the plain reading of WKA gets.
The question of citizenship to alien parents was still in front of this court which was trying to decide this issue well AFTER the passage of the 14th amendment. What Justice Gray called an "ancient and fundamental rule" was not being used as the guiding principle in this example.
Though the New Jersey court nonetheless recognizes the principle, even though it finds the 14th Amendment sufficient on its face to answer the question presented. The Court cites with approval the pre-14A case of Lynch v. Clarke:
In Lynch v. Clarke, 1 Sandf. Ch. 583, Vice-Chancellor Sandford, after an exhaustive discussion of the subject, declared that every person born within the dominion and allegiance of the United States was a citizen thereof. This decision was rendered in 1844, before the adoption of the fourteenth amendment.
But the court didn't see the need to explore that in order to find Mr. Benny to be a citizen, finding that the language of the Civil Rights Act and the 14th Amendment were sufficient to establish his citizenship at birth.
It's not clear why the NJ court would even needed to talk about the "colored people."
This comment is further proof you can't read a case beyond quote-mining particular passages.
It was undisputed that the purpose of the 14A was to make those blacks who had been born here citizens. The Court is making the point that if blacks born in the U.S. are citizens, then certainly white persons born here (like Mr. Benny) must be citizens at birth, too.
If the rule for white people born of aliens was in effect prior to the 14th amendment, then the NJ court shouldn't have needed to talk about the 14th amendment and making sure it applied to all races the same.
As noted, the NJ Court cites the Lynch case and it's "exhaustive discussion" with approval. However, a New York decision isn't binding on a New Jersey court. But without question the 14th Amendment DOES apply and supplies the rule of decision in that case.
It was clearly possible according to the Minor court to be citizens without the 14th amendment, yet the N.J. was still using the 14th amendment to justify its own decision.
Because a Court will always ground its decision on the strongest priniciple, and while the NJ Court appears to agree with the Lynch decision, the 14th Amendment furnishes the stronger argument upon which to base its ruling. The Court is simply focusing on the stronger of two consistent principles.
The majority had to make a compelling argument in the face of the dissent that said the treaty prevailed, while at the same time figuring out a way to respect the unanimous Minor decision that exclusively defined natural-born citizens as born to citizen parents.
In Post #304 I picked apart your "Minor's exclusive definition" argument. Simply repeating that warrants a yawn. But I'll repeat my summary, just for fun:
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.
Just as Courts will seek to ground a decision on the strongest principle, Courts will also not seek to answer questions not presented by the case before it. J. Gray was presented with a question that the Minor court didn't need to address.
And the way J. Gray made his "compelling argument" led the dissent complain the majority just made someone like Mr. Wong presidential eligible
The Chief Justice of the Court that heard the arguments and participated in the Court deliberations understood the Majority had just analyzed Wong to be a NBC. He can see this. Why can't you?
Me: 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.
Have you not read the decision??
The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
And nothing in what you quote speaks about the common law. So my point holds true: the common law discussions in Parts II and III have nothing to do with the mention of the treaty in Part VI.
That's not completely true. He said the 14th amendment did NOT say who shall be natural-born citizens.
I note how you cut out from your reply the portion I quoted that makes your statement untrue. Here it is again:
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.
Note the part where Gray says the Constitution nowhere defines the meaning of these words ("these words" referring to "the words" of the original constitution including "natural born citizen") "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 . . ." So the 14th Amendment is, in the Supreme Court's view, an affirmative "definition" in part of the original "natural born citizen." Deny this as you may, it's still true.
Me: 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.
There's nothing in the decision that says this.
Horsecrap. I laid this all out in my prior post. You just skip past it and cut it out of your reply and pretend it doesn't exist.
I showed: 1) how Gray says that to understand the meaning of Constitutional terms, one should look to the Gray language and history of the English common law; 2) how he traces the meaning of the English "natural born subject" (Part II), concluding "therefore every child born in England of alien parents was a natural-born subject:" 3) how Gray immediately thereafter (Part III) states "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."; and 4) how Gray in Part V declares that the purpose of the 14th Amendment language "subject to the jurisdiction thereof" was to retain the same jus soli principle as under the English and American common law rules along with the same exlusions for children of invaders and diplomats.
. . . points to Minor, quotes its definition of natural-born citizen, and then never references the term again in the remainder of his decision.
LOL. The opinion begins at p. 649. The so-called "definition" quote comes at p. 680, midway through Part V. The opinion ends at p. 705. Most of the "natural born" references come back in Parts II and III.
But let me ask: if this case (as you suppose) has nothing to do with consideration of Mr. Wong being "natural born," why are there over 30 references to "natural born" in the opinion? There is a connection Gray is making to "natural born citizenship" and the 14th Amendment. I truly don't think you know how to connect the dots here, despite his making it rather obvious.
Me: 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.
You: Nonsense. The court NEVER says that "natural born subject" and "natural born citizen" are precisely analagous terms.
The Court in Part III (the part where it's showing how the American common law rule as to birth citizenship was the same as under the English common law) cites with approval to the NC case of State v. Manuel:
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."
And this follows Gray's citation to Smith v. Rhodes:
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.
Read in context, where Gray is asserting the "same rule" applied in the U.S. as in England up through the framing of the original Constitution, the import of these citations couldn't be clearer. Yes, Gray is affirming that in his view "natural born subject" and "natural born citizen" are corresponding, analogous terms. Your level of denial is astounding.
And nowhere in the decision does it say that every child born of alien parents was a natural-born citizen.
Gray says at the conclusion of Part II summarizes:
"therefore every child born in England of alien parents was a natural-born subject:"
Then in the immediate next sentence starting Part III he states:
"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."
Let's see if you are capable of connecting the dots here and can answer this question: what "rule" was it that J. Gray is saying was "the same" in the U.S. which prevailed under the original Constitution?
I assert there is but one answer to that question: the "same rule" was that "every child born of alien parents was a natural born citizen."
And I predict your answer to this question will be a model of evasion and/or incoherence. But do try.