SCOTUS Case Determining "Natural Born" Def.: UNITED STATES V. WONG KIM ARK, 169 U. S. 649 (1898)

Justia.Com ^ | Aug 3, 2009 | Crush T Velour

[Crush T Velour]

Some so-called Birthers are resting their arguments on Chief Justice Marshall's supposed reliance a claimed "Vetter's" definition of "natural born citizenship". They believe that that court has not ruled on this issue otherwise. This is not so.

This case I've linked to regarded whether a certain child was a natural born citizen because he was born to chinese immigrant parents in the United States who were in the country lawfully.

The SCOTUS determined that the child was a NATURAL BORN citizen for the following reasons:

1. The Constitution nowhere defines the meaning of "citizen" or "natural-born citizen" 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 [of England], the principles and history of which were familiarly known to the framers of the Constitution.

2. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

[Perchant]

Is the child subject to US jurisdiction? Yes...

Yes, but so is the ambassador. That issue was also settled in the senate debate for the Citizenship Clause. An ambassador can't murder a US citizen and be immune from prosecution. At least, that was the understanding of the Framers of the C.C., and that was one of the reasons they decided that the words "and subject to the jurisdiction thereof" would so obviously be taken to mean “full and complete jurisdiction” that any further clarifying language was totally unnecessary.

I imagine this would be a sticky issue if a member of an ambassador’s household was also an American citizen.

That's just it, there wouldn't be a child born into citizenship in that household. To me, it would seem impossible to even naturalize the child until the child was old enough to renounce all possible conflicting allegiances.

But I don’t know what would actually happen

Your problem is that you aren't sure how some aristocrat appointee of the King of England would have adjudicated the matter 500 years ago. It's clear what the Framers of the clause had in mind.

[Crush T Velour]

Yes, but so is the ambassador. That issue was also settled in the senate debate for the Citizenship Clause. An ambassador can't murder a US citizen and be immune from prosecution.

So what?? I'm sure the king under English common law would not have tolerated a serial killer under cloak of ambassadorship. Ambassadors (within a tremendous expanse) are "not subject to the jursidiction" of the US, and the concept maps directly to the "natural born" exception that the SC referenced.

Look it is not possible for "Subject to the jurisdiction thereof" to mean "citizen". 1) "Subject..jurisdiction" is a *quality* of citizenship in the clause and 2) if they meant "citizen" why not just say "citizen".

That's just it, there wouldn't be a child born into citizenship in that household. To me, it would seem impossible to even naturalize the child until the child was old enough to renounce all possible conflicting allegiances.

Americans are not required to renounce all possible conflicting allegiances. I have a Canadian friend with an American wife who has three sons, all born in the US...natural born citizen, never naturalized...who have citizenship in Canada. You are imagining an America that has never existed. Wong Kim Ark only became an issue because he was Chinese. If his parents had been English citizens, no one would have denied him all the rights of a natural born citizen.

I repeat: The Constitution only discusses TWO types of citizen 1) naturalized and 2) natural born. If your a citizen and you're not one, then you are the other.

The 14th amendment was written almost 90 years after the Constitution was ratified. The mindset of (some of) its voters can hardly be considered representative of the original Founders who did not define "natural born" because they knew what it meant from common law. The debates you are hanging so much on did not even directly pertain to the purpose clause itself or the final text. They were a side issue.

Finally, it doesn't matter what some senator thought in 1867. The SCOTUS --dealing directly with what "citizen" meant when the Founders voted on the Constitution-- clarified the issue in 1898. And, by that definition, Obama is a natural born citizen.

It's clear what the Framers of the clause had in mind.

It is not clear fromt the text of the constitution. What is clear is that the child would be a natural born citizen based on English common law (on which ALL US non-Federal law was based). All the ways that having a father who was an ambassador would complicate things is hardly made clear even based on what some senator said once whose opinion did not prevail in the debates on the 14th amendment.

[Perchant]

If his parents had been English citizens, no one would have denied him all the rights of a natural born citizen.

The American born child of English citizens wouldn't be a Natural Born Citizen. You keep ignoring the language of the Constitution and the intent of the Framers.

Your devotion to English common law in regards to anchor babies is especially humorous considering England doesn't recognize a child who is born on English soil as a British citizen if neither parent is a British citizen.

The 14th amendment was written almost 90 years after the Constitution was ratified. The mindset of (some of) its voters can hardly be considered representative of the original Founders

I'll try this one more time. An amendment to the Constitution isn't supposed to represent the mindset of the original Founders. The amendment process exists for the primary purpose of rejecting the mindset of the original Founders.

[Crush T Velour]

The American born child of English citizens wouldn't be a Natural Born Citizen. You keep ignoring the language of the Constitution and the intent of the Framers.

You mean the supposed language of a clause of the 14th amendment, right? Not the Constitution as a whole. Not the original Framers but those of an amendment 90 years later. But the amendment doesn't say that. Supposedly someone said that during the DEBATE of the amendment. That's not the Constitution. That's just someone talking.

Your devotion to English common law in regards to anchor babies is especially humorous considering England doesn't recognize a child who is born on English soil as a British citizen if neither parent is a British citizen.

I don't know whether that is true or not. But I'll warrant it was not the case in 1789. But my devotion is to the ruling in "US v Wong Kim Ark" [1898] which you seem determined to pretend never happened.

The amendment process exists for the primary purpose of rejecting the mindset of the original Founders.

Fine, but the text of the amendment does not support that rejection. It doesn't redefine citizenship except placing it beyond the reach of Indians and those with diplomatic immunity.

"All persons 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 definitely excludes Indians born on reservations (but not anymore) and children born entirely in the households of foreign ambassadors...that is people born NOT SUBJECT TO THE JURISDICTION OF THE US. There's no way it excludes people with dual citizenship since they are in no way not subject to the juridiction of the US. It doesn't say what you are saying it says. It doesn't matter what was in someone's mind if the text didn't even begin to make it onto to the page. You're taking statements of a senator, waving your hands, and say "The cat is in the bag" really means "Anything with fur and a tail is in the bag."