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The dissent shows how two Supreme Court Justices understood the decision. It is not binding, but it is illustrative.

Also, it ought to be impossible to read the first half dozen pages of the decision without understanding that the dissent is entirely correct. And indeed, it is the reasoning the courts have followed since.

That is why the Indiana courts found the birther arguments silly, and why various texts years before Obama considered the citizenship of the parents irrelevant to the meaning of natural born citizen.

Their argument would need to be overturned for Obama to be ruled ineligible. And while I agree with the dissent, I don’t see any sign the courts will overturn WKA.

They argue

“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...”

They then review the meaning of natural born subject to determine the meaning of natural born citizen, choosing common law instead of Vattel:

“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision...”

They then describe what is meant by natural born subject:

“II. 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.”

Notice a NBS included anyone born in the land, regardless of the citizenship of the parents, with the exception of diplomats or the children of an invading army.

They then explain

“’Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ ‘Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.”

The exceptions afterward mentioned by Mr. Dicey are only these two:

“1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such

Page 169 U. S. 658

person’s birth is in hostile occupation, is an alien.”

“2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.”

The go on:

“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.

III. 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.”

Having shown what it meant in English common law, they switch to how it was interpreted in American cases.

The intent of the cases then cited is to show that citizenship by birth overrides any other form in US law.

They cite 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

Page 169 U. S. 663

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.”

They then switch from discussing NBS & NBC to say

“That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.”

Since the case before them doesn’t require WKA to be declared a NBC, they don’t bother - but the first half dozen pages inescapably leads to WKA being a natural born citizen, since he meets the requirements of a natural born subject, and the court holds them to mean the same thing.

However, they go on to quote many other opinions, all of which are meant to show that the citizenship of the parent is irrelevant, if the child was born under the jurisdiction of another country.

This sets up later courts to find that there are two and only two types of citizenship in the USA - by birth, and by naturalization. And it sets up later court usage of native born and natural born as interchangeable.

That is why you have comments like this:

“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are “natural born citizens” eligible to serve as President …”In United States v. Wong Kim Ark (1898), the Supreme Court relied on English common law regarding jus soli to inform the meaning of “citizen” in the Fourteenth Amendment as well as the natural-born-citizenship requirement of Article II, and noted that any right to citizenship through jus sanguinis was available only by statute, and not through the Constitution. ”

Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005)

Ed Meese isn’t exactly a flaming liberal (http://www.amazon.com/Reagan-Inside-Edwin-Meese-III/dp/0895265222/ref=ntt_at_ep_dpi_3). His analysis in 2005 - well before Obama began his run - is typical.

You may disagree with the analysis. I think WKA should be overturned. But there it is, and anyone bringing a court case needs to think about it and realize what they are asking BEFORE they enter the court.