Those were the two cases to which I'd been referring. Thank you for your "
I'm sure there are those who don't understand the law who have honestly and sincerely been taken in by it" qualification. I'm not a lawyer, but a physician from a family full of both. I recognize I have significant legal limits.
However, like many when first reading the Constitution I was impressed with how well it was written and how easy it was to understand most of it. I also was impressed with its economy of prose. Those economical Framers went out of their way to add the NBC clause. My faith in the Framers says they meant something by it. Just what they meant has long been a subject of personal curiosity.
Philosophically I favor an originalist strategy for interpreting the law. Prior to Obama arising on the scene I'd read claims that Wong Kim Ark didn't mesh with the interpretation given by the 14th's writers, who allegedly meant something different than that with their "subject to the jurisdiction thereof" clause. I understand Wong Kim Ark is binding law on "citizenship." I also understand the result is different than citizenship law in most other countries and is at least partially to blame for US immigration controversies. And, living in the community to which Dred Scott's arrival should legally have resulted in his freedom I've long been aware that the Supreme Court sometimes rules wrongly and needs to be corrected. Obamacare is a professionally painful reminder of that sad fact.
I'm willing to consider the possibility that Wong Kim Ark needs revision, but also recognize I don't understand the law enough to argue the details. I have downloaded the full decision for future reading. Hopefully I'll learn something from it. 'Birther' sources have claimed Won Kim Ark only dealt with citizenship, not with 'NBC.' My browser's search only found one instance of "natural born" and none of "natural born citizen" in the decision yet you report an "excruciatingly detailed 30 or 40 page discussion of the entire legal history of NATURAL BORN CITIZENSHIP" is there. I look forward to reading it as the former doesn't rule out the latter.
One of the frustrations of 'birthers,' and also of those undecided as to whether they should be birthers, is the refusal of courts to rule on the alleged issue of what is NBC. Over my life courts have ruled on all kinds of cases I'd have never thought belonged in a court of law, yet it seems no one has the standing to bring this case. If there were a political conspiracy to award Miley Cyrus the White House in 2016 I'd like to think there'd be some venue in which I could point out she would be only 24, not the constitutional age of 35 at her inauguration. The rule of law should provide the same venue(s) for the office's other requirements. Although it can be frustrating I understand why judges prefer to make minimalist rulings. To do otherwise would be judicial activism with all its problems. But in this case I wish some case would achieve standing and some judge would produce a brilliantly written analysis of the NBC clause to which only obviously politically blinded types could disagree. Maybe I'll find that analysis in Wong Kim Ark as you suggest. If not, my reverence for the foresight of the Framers will remain enhanced by Obama's case.
John, thanks for the reply.
I'm willing to consider the possibility that Wong Kim Ark needs revision, but also recognize I don't understand the law enough to argue the details. I have downloaded the full decision for future reading. Hopefully I'll learn something from it.
That's a great place to start.
I also recommend the series of quotes and the discussion in post 295. I have gone to pains to include at least some discussion of the 3 legitimate sources of contrary opinion cited by birthers that I am aware of.
They also sometimes cite Chief Justice Marshall in The Venus (1814), but that case doesn't even use the term "natural born citizen" and had to do with how we treated US citizens living in a foreign country we were at war with, not citizenship itself.
They also sometimes cite Inglis v. Sailors' Snug Harbor (1830) and Shanks v. Dupont (1830), but those cases don't bear directly on the issue, either.
For that reason, I didn't include those as legitimate sources of contrary opinion.
'Birther' sources have claimed Won Kim Ark only dealt with citizenship, not with 'NBC.' My browser's search only found one instance of "natural born" and none of "natural born citizen" in the decision yet you report an "excruciatingly detailed 30 or 40 page discussion of the entire legal history of NATURAL BORN CITIZENSHIP" is there. I look forward to reading it as the former doesn't rule out the latter.
Be sure you are searching Justice Gray's Opinion in the case.
I just searched the text and found "natural born" or "natural-born" a total of 34 times, if I counted correctly. There are also other phrases like "natural subject." And the concepts are pervasive throughout dozens of pages.
Usually in that text you see "natural born subject," because "natural born subject" was the earlier historical term. They favorably quote Justice Gaston as saying that the terms "subject" and "citizen" are "precisely analogous," and then use the terms interchangeably:
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."
You said:
One of the frustrations of 'birthers,' and also of those undecided as to whether they should be birthers, is the refusal of courts to rule on the alleged issue of what is NBC.
Several courts actually have ruled that Obama, born in the US to a 17-year-old mother and a non-citizen father, is in fact a "natural born citizen" and is eligible. They have simply quoted Wong Kim Ark, and the US Supreme Court has refused to hear any appeals on those cases. Their refusal is again an affirmation that the lower courts are correct in their understanding of Wong.
I will point out three things about the Wong Kim Ark decision.
It does not use the words "Natural born" in the ruling. Ink and paper were not so dear that they could not have added the words if they wanted to. Like the authors of the 14th amendment, those words were INTENTIONALLY omitted.
2. It makes no mention whatsoever of the War of 1812, the focus of which was very much about the difference between an American citizen and a British Subject. It has been alleged that they intentionally omitted it because it did not support the conclusion to which they had already made up their mind.
3. The Wong court is the exact same court that ruled "separate but equal" in the Plessy v Ferguson decision a year earlier. This was one of the most infamous decisions in Supreme Court History, and the Judgement of the court was this: Not all "citizens" are created equal. Some are more equal than others.
I suspect that the Wong decision was a walkback from the Plessy decision, which provoked an outcry. They went too far in the one direction, so to compensate, they went too far in the other.