And we KNOW DEFINITIVELY from U.S. v. Wong Kim Ark that your misinterpretation of Rawle's commentary was not a common belief, otherwise, there would have been no need on the part of the government to deny Wong Kim Ark's birth citizenship — yet they did.
It was a common belief. What Rawle writes is in accord with, for example, the extensive discussion on the topic done by Chancellor Sandford in Lynch v. Clarke.
And even the Wong Kim Ark decision admits by way of legal citation that the children of aliens were not considered to be citizens at birth prior to the 14th amendment because they were not subject to the jurisdiction.
Here's where your reading of WKA is simply wrong. J. Gray states exactly the opposite of what you assert:
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.
So the WKA Court makes explict that even prior to the enactment of the 14th Amendment, (white) children of aliens parents were native (natural) born citizens. Was Rawle stating something different? Probably few readers would take his "all persons" to mean other than white persons. His readership, no doubt, was white. The ambiguity was perhaps intentional as it was not likely his purpose in that treatise to press the highly controversial race question.
In a very recent case, the Supreme Court of New Jersey . . .
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." 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.
Here's my question to you. If what you believed about Rawle is true, why does the Minor court unanimously rely on a citizenship definition that is based upon birth to citizen parents?? Why do they not simply accept Virginia Minor's argument of being a 14th amendment citizen at birth?? What would be the need for talking about being born to parents who were citizens??
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.
So it's not that the Court stated she was NOT a 14th Amendment citizen; it simply affirmed that falling within the Amendment afforded her no greater right to vote than she had as a citizen under the common law.
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