Posted on 07/27/2023 1:23:56 PM PDT by Macho MAGA Man
21 Fed. 905-906:
Field, Justice. The petitioner belongs to the Chinese race, but he was born in Mendocino, in the state of California, in 1870. In 1879 he went to China, and returned to the port of San Francisco during the present month, (September, 1884,) and now seeks to land, claiming the right to do so as a natural-born citizen of the United States. It is admitted by an agreed statement of facts that his parents are now residing in Mendocino, in California, and have resided there for the last 20 years; that they are of the Chinese race, and have always been subjects of the emperor of China; that his father sent the petitioner to China, but with the intention that he should return to this country; that the father is a merchant at Mendocino, and is not here in any diplomatic or other official capacity under the emperor of China.
21 Fed. 906:
The first section of the fourteenth amendment to the constitution declares that “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 language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words “subject to the jurisdiction thereof.” They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must, at the time, be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This ex-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents.
21 Fed. 909
With this explanation of the meaning of the words in the fourteenth amendment, “subject to the jurisdiction thereof,” it is evident that they do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship, and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.
In Look Tin Sing, the U.S. Federal Court examined the case of a child of two Chinese citizens, born in the United States. Regarding the child, the Federal Court found that “the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.”
The child with two foreign parents, neither of whom was even eligible for naturalization, when born in the U.S., is born under the jurisdiction of the U.S., exclusive of that of any other country.
The birther argument about jurisdiction has been losing in Federal court since 1886, ten years before Wong Kim Ark.
In re Wong Kim Ark, 71 Fed. 382 (1896)
71 Federal Reporter 383-384
An agreed statement of facts has been filed, which is as follows:“(1) That the said Wong Kim Ark was born in the year 1873, at No. 751 Sacramento street, in the city and county of San Francisco, state of California, United States of America; and that his mother and father were persons of Chinese descent, and subjects of the emperor of China; and that said Wong Kim Ark was and is a laborer. (2) That at the time of his said birth his mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicile and residence therein at said city and county of San Francisco, state aforesaid. (3) That said mother and father of said Wong Kim Ark continued to reside and remain In the United States until the year 1890, when they departed for China. (4) That during all the time of their said residence in the United States, as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged In any diplomatic or official capacity under the emperor of China. (5) That ever since the birth of said Wong Kim Ark at the time and place hereinbefore stated and stipulated, he has had but one residence, to wit, a residence in said state of California, in the United States of America, and that he has never changed or lost said residence or gained or acquired another residence, and there resided, claiming to be a citizen of the United States.
71 Fed. 384
The question to be determined is whether a person born within the United States, whose father and mother were both persons of Chinese descent, and subjects of the emperor of China, but at the time of the birth were both domiciled residents of the United States, is a citizen, within the meaning of that part of the fourteenth amendment of the constitution which provides that:“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.”
71 Fed. 385
It is contended, further, that the common-law doctrine does not govern the determination of the question of citizenship, for the reason that there is no common law proper of the United States; citing Wheaton v. Peters 8 Pet. 658; Kendall V. U. S., 12 Pet. 524; Lorman v. Clarke, 2 McLean 568, Fed. Cas. No. 8,516; U. S. v. New Bedford Bridge, 1 Woodb. & M. 401, Fed. Cas. No. 15,867; People v. Folsom, 5 Cal. 373; In re Barry, 42 Fed. 113. Finally, it is maintained that the United States supreme court, in interpreting the first clause of the fourteenth amendment, now in question, in the Slaughterhouse Cases, 16 Wall. 36, adopted, to all intents and purposes, the rule of international law, when it said through Mr. Justice Miller:“The phrase, ‘subject to its jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.”
This failed birther argument is still being recycled in 2023 as if it had never been considered by the Federal courts and resoundingly and repeatedly rejected.
71 Fed. 386
But the supreme court has never squarely determined, either prior to or subsequent to the adoption of the fourteenth amendment in 1868, the political status of children born here of foreign parents. In the case of Minor v. Happersett, 21 Wall. 168, the court expressly declined to pass upon that question.
As the Federal court clearly found, in Minor the Supreme Court mentioned the political status of children born in the U.S. to foreign parents and expressly declined to pass upon that question. This is cited endlessly by birthers as binding precedent regarding what the Court expressly declined to pass upon. Minor v. Happersett is an imaginary precedent.
71 Fed. 386
The fourteenth amendment to the constitution of the United States must be controlling upon the question presented for decision in this matter, irrespective of what the common-law or international doctrine is. But the interpretation thereof is undoubtedly confused and complicated by the existence of these two doctrines, in view of the ambiguous and uncertain meaning of the qualifying phrase, “subject to the jurisdiction thereof,” which renders it a debatable question as to which rule the provision was intended to declare. Whatever of doubt there may be is with respect to the interpretation of that phrase. Does it mean “subject to the laws of the United States,” comprehending, in this expression, the allegiance that aliens owe in a foreign country to obey its laws; or does it signify, “to be subject to the political jurisdiction of the United States,” in the sense that is contended for on the part of the government? This question was ably and thoroughly considered in Re Look Tin Sing, supra, where it was held that it meant subject to the laws of the United States.
The question is controlled by the U.S. Constitution, not by the Law of Nations, the body of law, nor by The Law of Nations, a book written in French by Emerich de Vattel while the states were still colonies.
71 Federal Reporter 390-391
The Slaughterhouse Cases were decided in 1873, and the opinion was delivered by Mr. Justice Miller. In the decision most of the provisions of the thirteenth, fourteenth, and fifteenth amendments to the constitution received clear, elaborate, and able interpretation and construction. …But the question which is here directly involved did not arise in that case, nor did the interpretation of the court relate to such a state of facts as exists here. Obviously, therefore, what the court then said with reference to the status of children born here of foreign parents is but obiter dictum. …
… the observations referred to and relied upon, however persuasive they may appear to be, cannot be accepted as declaring the law in this circuit, at least as against the authority of In re Look Tin Sing, where the question was squarely met and decisively settled.
So much for the Slaughterhouse Cases as precedent.
71 Federal Reporter 391
Nor does the interpretation of the phrase in question in the case of Elk v. Wilkins, 112 U. S. 94, 5 Sup. Ct. 41, dispose of the matter. There the question was whether an Indian, born within the United States, and who had severed his tribal relations, was a citizen of the United States, within the meaning of the fourteenth amendment.
There goes Elk as precedent.
71 Federal Reporter 392
Arriving at the conclusion, as I do, after careful investigation and much consideration, that the supreme court has as yet announced no doctrine at variance with that contained in the Look Tin Sing decision and the other cases alluded to, I am constrained to follow the authority and law enunciated in this circuit. Counsel for the United States have argued with considerable force against the common-law rule and its recognition, as being illogical, and likely to lead to perplexing, and perhaps serious, international conflicts, if followed in all cases. But these observations are, obviously, addressed to the policy of the rule, and not to its interpretation. The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in declaring it to be the law against controlling judicial authority.
The Law of Nations was weighed, measured, and found wanting over a century ago, and ever since.
The court in Smith v. Alabama, 124 U. S. 465, 478 (1888) clearly stated the common law’s influence on the Constitution:
The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.
There are still the ill described and creatively interpreted cherry-picked quotations of various folks involved with the debate of the 14th Amendment.
John Bingham was involved with the amendment and is repeatedly quoted, e.g., by Dr. Orly Taitz, Esq., in her Appeal of Administrative Decision, Emergency Application for Stay, submitted to the Fulton County Superior Court in Georgia, February 13, 2012. At page 30 we find Representative Bingham presented in the usual misleading manner:
Lastly, during the Congressional debate on the 14th amendment John A. Bingham, framer of the 14th Amendment defined the natural born citizen as follows “every human being born within the jurisdiction of the United States not owing allegiance to any foreign sovereignty.” As at the time of Obama’s birth, his father owed allegiance to a foreign nation, Obama does not qualify as natural born citizen according to Bingham’s construction.
Of course, this is supposedly not just about the 14th Amendment in general, but of its citizenship clause in particular. The citizenship clause of the 14th Amendment was proposed in Senate by Sen. Jacob Howard. But Rep. Bingham was not speaking during the debate of the 14th Amendment, or its citizenship clause at all. The quote by Dr. Taitz (and many others) is from the House debate on similar (but different) text that appeared in the Civil Rights Act of 1866. That text within the Civil Rights Act was also introduced in the Senate, by its author Sen. Lyman Trumbull. Birther clowns love to quote John Bingham. Bingham did not write the Civil Rights Act of 1866—that was Sen. Lyman Trumbull. Bingham did not write the citizenship clause of the 14th Amendment—that was Sen. Jacob Howard.
Quite aside from the fact that Bingham’s statement was not about the 14th Amendment or its citizenship clause, a court could not even consider it to determine the intent of the words used in the Civil Rights Act of 1866.
Wong Kim Ark, 169 U.S. 649, 699 (1898), Gray J.
Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment; and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered, and not overlooked.
Downes v. Bidwell, 182 US 244, 254 (1901), Brown J.
The arguments of individual legislators are no proper subject for judicial comment. They are so often influenced by personal or political considerations, or by the assumed necessities of the situation, that they can hardly be considered even as the deliberate views of the persons who make them, much less as dictating the construction to be put upon the Constitution by the courts.
United States v. Trans-Missouri Freight Association, 166 U. S. 290; 318-319, Peckham J.
Looking simply at the history of the bill from the time it was introduced in the Senate until it was finally passed, it would be impossible to say what were the views of a majority of the members of each House in relation to the meaning of the Act. It cannot be said that a majority of both houses did not agree with Senator Hoar in his views as to the construction to be given to the Act as it passed the Senate. All that can be determined from the debates and reports is that various members had various views, and we are left to determine the meaning of this act, as we determine the meaning of other acts. from the language used therein.There is, too, a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body. United States v. Union Pacific R. Co., 91 U. S. 72, 91 U. S. 79; Aldridge v. Williams, 3 How. 9, 44 U. S. 24, Taney, Chief Justice; Mitchell v. Manufacturing Co., 2 Story 648, 653; Queen v. Hertford College, 3 Q.B.D. 693, 707.
The reason is that it is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did, and those who spoke might differ from each other, the result being that the only proper way to construe a legislative act is from the language used in the act, and, upon occasion, by a resort to the history of the times when it was passed. (Cases cited supra.)
United States v. St. Paul, M. & MR Co., 247 US 310, 318 (1918), Pitney, J.
It is not our purpose to relax the rule that debates in Congress are not appropriate or even reliable guides to the meaning of the language of an enactment.
Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474 (1921), Pitney J.
By repeated decisions of this court, it has come to be well established that the debates in Congress expressive of the views and motives of individual members are not a safe guide, and hence may not be resorted to, in ascertaining the meaning and purpose of the lawmaking body. Aldridge v. Williams, 3 How. 9, 44 U. S. 24; United States v. Union Pacific R. R. Co., 91 U. S. 72, 91 U. S. 79; United States v. Freight Association, 166 U. S. 290, 166 U. S. 318.
Chrysler Corp. v. Brown, 441 US 281, 311 (1979), Rehnquist, J.
The remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history. Congressman Moss’ statement must be considered with the Reports of both Houses and the statements of other Congressmen…
Aldridge v. Williams, Aldridge v. Williams, 44 U.S. 9, 24 (1845), Taney CJ
In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.
Conroy v. Aniskoff, 507 US 511, 519 (1993), Scalia, J., concurring
The greatest defect of legislative history is its illegitimacy.We are governed by laws, not by the intentions of legislators. As the Court said in 1844: “The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself....” Aldridge v. Williams, 3 How. 9, 24 (emphasis added). But not the least of the defects of legislative history is its indeterminacy. If one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history. And the present case nicely proves that point.
Judge Harold Leventhal used to describe the use of legis lative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.
Debate on the Civil Rights Act of 1866 authored by Sen. Trumbull
Congressional Globe, 39th Cong., 1st Sess., 1866
[475] [Mr. TRUMBULL]
[I]t is competent for Congress to declare, under the Constitution of the United States, who are citizens. If there were any question about it, it would be settled by the passage of a law declaring all persons born in the United States to be citizens thereof. That this bill proposes to do.
[476] [Mr.TRUMBULL]
This bill has nothing to do with the political rights or status of parties. It is confined exclusively to their civil rights, such rights as should appertain to every free man. Having stated this much in regard to the object of the bill and its main features, I submit it to the Senate, and shall not further occupy its attention at the present time, and perhaps not at all unless it should be to reply to suggestions which may be made by others.
[570] [Mr. MORRILL]
As matter of law, does anybody deny here or anywhere that the native born is a citizen, and a citizen by virtue of his birth alone? The honorable Senator from Kentucky has vexed himself somewhat I think with the problem of the naturalization of American citizens. As he reads it, only foreigners can he naturalized, or, in other words, can become citizens; and upon his assumption, four million men and women in this country are outside not only of naturalization, not only of citizenship, but outside of the possibility of citizenship. Sir, he has forgotten the grand principle both of nature and nations, both of law and politics, that birth gives citizenship of itself. This is the fundamental principle running through all modern politics both in this country and in Europe. Everywhere where the principles of law have been recognized at all, birth by its inherent energy and force gives citizenship. Therefore the founders of this Government made no provision—of course they made none—for the naturalization of natural-born citizens. The Constitution speaks of “natural born,” and speaks of them as citizens in contradistinction from those who are alien to us. Therefore, sir, this amendment, although it, is a grand enunciation, although it is a lofty and sublime declaration, has no force or efficiency as an enactment. I hail it and accept it simply as a declaration.
[572] [Mr. TRUMBULL]
The Senator from Missouri assumes that there is a sort of property qualification to citizenship. Such is not the meaning of the provision. The Senator from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of the child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment so as to make citizens of all the people born in the United States and who owe allegiance to it. I thought that might perhaps be the best form in which to put the amendment, at one time, “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens;” but upon investigation it was found that, a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer.Then it was suggested that we should make citizens of all persons born in the United States not subject to any foreign Power or tribal authority. The objection to that was, that there were Indians not subject to tribal authority who yet, were wild and untamed in their habits, who had by some means or other become separated from their tribes and were not under the laws of any civilized community, and of whom the authorities of tlie United States took no jurisdiction. The Senator from California [Mr. Conness] told us that there were in his State Indians who had been placed upon reservations under charge of Indian superintendents who had heen separated from their tribes and were not under any tribal authority, but they were there under the regulations of treaties which had been made with them, and were supplied and looked after by our Indian agents the same as other Indians who were perfectly wild, not submitting at all to the usages of civilized life, and it could not be intended to make that class of persons citizens.
Then it was proposed to adopt the amendment as it now stands, that all persons born in the United States not subject to any foreign Power, excluding Indians not taxed, shall be citizens. What does that phrase “excluding Indians not taxed” mean? The Senator from Missouri understands it to be a property qualification to become a citizen. Not at all. It is a constitutional term used by the men who made the Constitution itself to designate, what? To designate a class of persons who were not a part of our population. That is what it means. They are not counted in the census. They are not regarded as a part of our people. The term “Indians not taxed” means Indians not counted in our enumeration of the people of the United States.
[1115] [Mr. WILSON]
The first section of the bill contains the following declaration concerning citizenship:That all persons born in the United States and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States without distinction of color.This provision, I maintain, is merely declaratory of what the law now is.
[1117] [Mr. WILSON]
It is in vain we look into the Constitution of the United States for a definition of the term “citizen.” It speaks of citizens, but in no express terms defines what it means by it. We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except it may be that children born on our soil to temporary sojourners or representatives of foreign Governments, are native-born citizens of the United States. Thus it is expressed by a writer on the Constitution of the United States:“Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—Rawle on the Constitution, p. 80.
[1262] [Mr. BROOMALL]
The first provision of the bill declares that all persons born in the United States and not subject to any foreign Power are citizens of the United States. As a positive enactment this would hardly seem necessary. Even as a declaration of existing law, a proposition that at most can only be said to embrace the true meaning of the word “citizen” would seem to find its more appropriate place in the elementary treatises upon law rather than upon the statute-books. What is a citizen but a human being who by reason of his being born within the jurisdiction of a Government owes allegiance to that Government?
The 14th Amendment is not a statute, it is the Constitution.
There are not different kinds of citizens, there are only differences in how you gain citizenship. Some are not citizens by birth and must go through a legal naturalization process to gain citizenship. Some are citizens by right of birth, and are natural born citizens.
Birthers made up a lot of silly legal mythology about this, but they are wrong.
I know nothing about this piece of history so I can’t offer opinions. But it is lovely to see history still being a fertile field for research.
Interesting bit of logic there. So when Congress passed a law granting citizenship at birth to the children of Americans born beyond the seas, then congress gave them a "right"?
I thought rights came from God, not congress.
Both of my profs are liberals, too. They just deal well with my being a conservative. But you’re right that people who don’t want research results to turn out a certain way are more likely to want to prove the reverse.
No one remembers the name mairdie. It was the name my 2 1/2 year old niece called me when she lived with our family. She is in frequent touch and the name makes me smile with happiness whenever I see it and think of her.
>> identified as a British Spy by John Armstrong, (Former General) the then American Ambassador to France.
John Armstrong was married to my 2nd cousin, 7x removed, Alida Livingston, so I have some info on him in my family tree files.
Party: Republican; Republican
ARMSTRONG, John, Jr., (son of John Armstrong [1717-1795] and brother of James Armstrong), a Delegate from Pennsylvania and a Senator from New York; born in Carlisle, Cumberland County, Pa., November 25, 1758; attended Princeton College but left college to enter the Revolutionary Army; secretary of state of Pennsylvania 1783-1787; adjutant general for several years; Member of the Continental Congress 1787-1788; moved to Dutchess County, N.Y., in 1789 and settled near Lexington Manor; elected to the United States Senate to fill thevacancy in the term ending March 3, 1801, caused by the resignation of John Laurance; reelected in 1801, and served from November 6, 1800, to February 5, 1802, when he resigned; was next appointed to the Senate to fill the vacancy in the term ending March 3, 1807, caused by the resignation of his successor, De Witt Clinton; subsequently elected to fill the vacancy in the term ending March 3, 1809,caused by the resignation of Theodorus Bailey, and served from November 10, 1803, until June 30, 1804, when he again resigned to enter the diplomatic service; Minister to France 1804-1810; also acted as Minister to Spain 1806; during the War of 1812 was commissioned brigadier general; Secretary of War in the Cabinet of President James Madison 1813-1814; engaged in literary pursuits; died in Red Hook, Dutchess County, N.Y., April 1, 1843; interment in Rhinebeck Cemetery, Rhinebeck, N.Y.
The Founders didn't want to use the word "subject." They couldn't say "subject" because they had just fought a revolution to get rid of the king. The word "citizen" was available and in use. That did not mean that they had to adopt Vattel's definition of "natural born citizen."
The Framers may not have been agreed on what "natural born citizen" meant. Their chief concern, I'm told, was to prevent foreign monarchs from coming to the country and getting elected president (as happened with elective monarchies in Europe). The question of whether it made a difference if your parents were naturalized a year before or a year after you were born may not have been on their minds. At a time when every lawyer had to know his Blackstone, it's likely that Blackstone's idea of what "natural born" meant would be in most lawyer's minds.
P.S. What's so special about Canada? The US is a very big country with lots of places to hide, most of them further away from Seattle (and Honolulu) than Vancouver. It's not like our Northern border is some impassible Iron Curtain.
>> Immigrants should stop corrupting our history with their
>> non U.S.legacy ancestry and names.
Know-nothingism failed as a political movement back in the late 1800’s, just to let you know.
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