Posted on 01/17/2016 3:30:54 PM PST by Walt Griffith
U.S. Supreme Court
United States v. Wong Kim Ark, 169 U.S. 649 (1898)
United States v. Wong Kim Ark
No. 18 Argued March 5, 8, 1897
Decided March 28, 1898
169 U.S. 649
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA
Syllabus
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,
"All person born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
This was a writ of habeas corpus issued October 2, 1895, by the District Court of the United States for the Northern District of California to the collector of customs at the port of San Francisco, in behalf of Wong Kim Ark, who alleged that he was a citizen of the United States, of more than twenty-one years of age, and was born at San Francisco in 1873 of parents of Chinese descent and subjects of the Emperor of China, but domiciled residents at San Francisco, and that, on his return to the United States on the steamship Coptic in August, 1895, from a temporary visit to China, he applied to said collector of customs for permission to land, and was by the collector refused such permission, and was restrained of his liberty by the collector, and by the general manager of the steamship company acting under his direction, in violation of the Constitution and laws of the United States, not by virtue of any judicial order or proceeding, but solely upon the pretence that he was not a citizen of the United States.
A moped shall be considered as a motorcycle.
A 22 year old shall be considered as a child (this is an actual US regulation)
An alien born abroad shall be considered a citizen (this is the generic operative language in naturalization statutes)
Read properly, the 1790 Act, by itself, says that a person born abroad to citizens is NOT an NBC. It's the opposite of a "definition." You'll see that act discussed in the Rogers v. Bellei case.
To “quietly” correct the error.
If one does enough research on this subject, there’s something that does begin to become obvious....some, certainly not all or even the majority of courts begin to use the term “natural born” and “native born” as if they were interchangeable.
The terms are NOT synonymous and there has been no definative decision or precedent to make them so.
I never said it did. It is however, well accepted that birthright citizenship does.
do remember that 45 years ago when I was taking the oath as a Commissioned Officer of the U.S. Army I had to swear allegiance to the Constitution of the United States and to the Vattel’s Law of Nation because much later when the internet is invented, people will insist that those two documents are the same.
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That is VERY interesting. Was it standard in all the services? Do you have a copy of it? or can you find it in some manual as a requirement at the time? That is exciting. It would establish precedent.
I have read somewhere, perhaps in Washington’s papers, I’m not sure, that to “Correct” the error “Quietly” it was simply omitted.
I agree. That is why I include Senator Trumbulls example about the Native Americans.
I don’t think that it means anything. It wasn’t written in all caps and we know that only those things written in all caps have the force of law.
I suspect we will never know for sure which will allow for speculation for the next 200 years.
What is interesting though is that The Naturalization Act of 1790 was the only US statute ever to use the term.
The residency requirement applies to the citizen parent, not the alien parent.
I think we will “mess with the term” to our own destruction.
It applies to both, back in 1790, it would appear, for “natural born.”
It looks like Cruz would fit, if true.
If a foreign diplomat has a child while on assignment in the US, the child is native-born US. It's a clinical fact. Citizenship is a legal inquiry, and applies following consitutions, statutes, and regulations.
Cruz is natrualized. Suggest you seek my posts earlier on this thread and read them, espcially the one that links to Rogers v. Bellei and my brief of that case.
To my mind this was a case that eventually led to what we call today a "anchor baby".
It's easy enough to see that the parents, both Chinese nationals, were here as guest workers, in todays parlance. neither of them promoted the US or wanted citizenship via naturalization, and neither is there evidence that the offspring they left behind wanted that either. So they remained Chinese nationals here temporarily.
The case originated from a California statute that cut off the Chinese guest worker program and sought to reduce the numbers. When the son of the Chinese nationals went to china to visit them, he found to his surprise that he was not granted access to return to the US without immigration papers.
The court pulled every possible cite and made them appear to support the man's claims of citizenship by birth. And since then has been used to make anchor babies a fact of our lives.
It has zero relevance to ted Cruz and legal pathways to natural born status as it only deals with birth on native soil.
Is this guy a native born? sure....but does that make him a automatic naturalized citizen?
I contend it did not, because the parents may have been under the physical jurisdiction of the US, but they never expressed allegiance to it, nor did they renounce their Chinese allegiance.
The boys physical presence at birth only placed him in the jurisdiction. he should have petitioned the court to allow him to stay pending a application for citizenship via naturalization.
Hence there is a difference between native birth and natural born as well as some likenesses. These issues must be determined by facts in evidence and not just opinions on unrelated case law or even related case law unless the case is exactly the same.
Personally, the reason we are arguing this is that neither the court or Congress is inclined to fix it. They want it to be a matter of debate for each and every case.
Ideally, I think the military should take over and a Pinochet type character should rule until America comes to its senses, but I don't see that happening.
IRREFUTABLE AUTHORITY HAS SPOKEN
(Oct. 18, 2009) The Post & Email has in several articles mentioned that the Supreme Court of the United States has given the definition of what a “natural born citizen†is. Since being a natural born citizen is an objective qualification and requirement of office for the U.S. President (and VP), it is important for all U.S. Citizens to understand what this term means.
http://www.thepostemail.com/2009/10/18/4-supreme-court-cases-define-natural-born-citizen/
“What does it mean to be a natural born citizen?”
A natural born citizen is a person who is born with allegiance to the sovereign United States of America and who acquires no allegiance to a foreign sovereign at birth or after birth.
“Most legal experts contend it means someone is a citizen from birth and doesn’t have to go through a naturalization process to become a citizen.”
It is a false statement to allege it is known who “most legal experts” are, much less allege to know what they mean when using the term, natural born citizen. No competent survey has ever been conducted to determine such statistics.
“If that’s the definition, then Cruz is a natural born citizen by being born to an American mother and having her citizenship at birth.”
Given the indisputable fact that Ted Cruz acquired U.S. citizenship by using the authority of the Immigration and Naturalization Act of 1952, it is also indisputable that Ted Cruz was naturalized at birth by that Act. Naturalized U.S. citizens are by legal definition not and cannot become natural born citizens.
“The Congressional Research Service, the agency tasked with providing authoritative research to all members of Congress, published a report after the 2008 election supporting the thinking that a ‘natural born’ citizenship means citizenship held at birth.”
Natural born citizens do hold citizenship at birth by the authority of Natural Law. Alien born children of a U.S. citizen, meaning children born with allegiance to a foreign sovereign, are naturalized at birth and thereby are persons who are not natural born U.S. citizens, but they are granted by statutory law a nearly equivalent political status as those persons who are an actual natural born citizen.
“There are many legal and historical precedents to strongly back up this argument, experts have said.”
The statement is a baseless and false statement. Historical precedents consistently demonstrate an actual natural born citizen is born without an allegiance to a foreign sovereign.
“Those precedents were the subject of a recent op-ed in the Harvard Law Review by two former solicitor generals of opposing parties, Neal Katyal and Paul Clement, who worked for Presidents Barack Obama and George W. Bush, respectively. They wrote that ‘natural born’ had a longstanding definition dating back to colonial times.
yes, the phrase “natural born” “had a longstanding definition dating back to colonial times.” it is demonstrably not the misrepresentative definition they are using.
“British common law recognized that children born outside of the British Empire remained subjects, and were described by law as natural born, Katyal and Clement wrote.”
Contrary to the erroneous information in United States v. Wong Kim Ark (1898), the United States developed its own often unique American common law at the same time England and Britain was developing its common law. While they often shared similar conclusions, they also did not share many important conclusion during the same American colonial period. During the Federal period the States and the Federal Government deliberately disavowed adherence to British common law in favor of its own approach relying upon American common law traditions and upon the Law of Nations. The quotation also misrepresents the situation with the children of British fathers born abroad, which was altered by the States and the Federal Government with the State and Federal naturalization statutes. so, the statements are false and deceptive in the extreme.
“The framers, of course, would have been intimately familiar with these statutes and the way they used terms like natural born, since the (British) statutes were binding law in the colonies before the Revolutionary War, they said.”
The colonial legislatures and the King’s governors often conflicted with the interference of the Crown in the colonial naturalization statutes and practices. So, it is false and deceptive for your statement to omit and deny the existence of these Colonial contradictions to the efforts of the Crown to apply the controversial Parliamentary Acts.
“Additionally, the first Congress of the United States passed the Naturalization Act of 1790, just three years after the Constitution was written, which stated that children born abroad to U.S. citizens were, too, natural born citizens.”
That statement is a blatant lie and a fraud. The Naturalization Act of 1790 did not state “that children born abroad to U.S. citizens were, too, natural born citizens.” That is a heinous and too often repeated lie. The Naturalization Act of 1790 authorized the U.S. Government to take a child who was not a natural born citizen and who was born abroad in the allegiance of a foreign sovereign with a father having U.S. citizenship and grant that child a political status, known as naturalization, that was in most, but not all respects, comparable to those enjoyed by actual natural born citizens. This is the same principle of nationality that was used by Parliament when it naturalized the alien born children of English fathers in the Naturalization Act of 1541.
“Many members of the inaugural Congress were also authors of the Constitution.â”
Yes, they were, and they used Vattel’s Law of nations as a guide to drafting the Constitution and the natural born citizen clause as a means of excluding naturalized U.S. citizens only from the Office of the President and Office of the Vice President, whereas English and British statutes excluded naturalized nationals from serving in the Privy Council and most other government and public offices.
“Personally, the reason we are arguing this is that neither the court or Congress is inclined to fix it.”
Indeed, courts in the past and likely in the near future will be loath to touch it.
Yup.....
I think because most of these cases of late are political.
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