Yes, he would have been eligible. That was not the question before the court, but the court addressed it as part of the legal reasoning leading to their decision. I quoted from the decision earlier. It leaves no doubt whatsoever that he was a natural born citizen.
You've gone completely 'round the bend, mlo. There is no way at all, that Wong Kim Ark was eligible for election to the Office of President.
As is your right, that belief appears to be
your personal interpretation. Others hold a
differing view, but thank you for the courtesy
of a reply.
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(1) The Wong Kim Ark Court references the Minor v Happerset opinion three times, but does not overrule or elaborate on Minor’s discussion of natural born citizen.
(2) Despite the exhaustive discussion of natural born citizens, the Court finds Mr. Wong to be a US citizen, but does not declare Mr. Wong to be a natural born citizen.
(3) The use of the Wong Kim Ark decision to justify the natural born citizen status of a person who is born in the US to two parents who are permanent residents but perhaps not citizens is undermined by the circumstances of its author, Justice Gray, and the president who appointed him to the Supreme Court, Chester Arthur.
When Chester Arthur was elected, it was unknown that he was born before his father naturalized as a US citizen. It is now known that this is fact, and it has been exposed that Chester Arthur went to great lengths to successfully hide this fact.
Did Justice Gray attempt to use his long-winded opinion that Wong Kim Ark was a citizen, with its inconclusive, general, and unnecessary discussions of natural born citizen and natural born subject to confuse the issue and help to legitimize the president who appointed him to the Supreme Court against the potential that his eligibility flaw might one day be exposed?
Mr. Spiro’s analysis ignores the fact that, although the Court’s opinion in Wong Kim Ark spends a substantial amount of time discussing natural born citizen, it does not declare Mr. Wong to be a natural born citizen.
From time to time, the Supreme Court has designated individuals to be natural born citizens. It’s important to note that it has never done so for an individual whose parents were not both US citizens at the time of birth.
http://blogs.wsj.com/law/2009/07/30/natural-born-killer-mulling-a-constitutional-amendment/
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One particular passage has been fervently relied upon by Obama eligibility supporters in claiming the case establishes children of aliens – born in the US – as natural-born citizens.
I can understand such reliance. The passage below has been confusing for me as well. Yet, I never truly believed SCOTUS was stating that Wong Kim Ark could be President and Commander In Chief. I just couldn’t find the words to thoroughly distinguish the case.
However, it finally became clear today. The words of the passage suddenly re-arranged the focus of the majority’s intent.
Here’s the infamous passage:
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The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens…
Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate…and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen…’
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It appears at first glance that the passage claims children of aliens born on US soil are themselves natural-born citizens. And that’s certainly the hard line taken by Obama eligibility supporters. But a closer inspection reveals this is not what the court held.
Have another look:
“…and his child… ‘If born in the country, is as much a citizen as the natural-born child of a citizen…”
Justice Gray does a very revealing compare and contrast here:
- he compares two children
- on the one hand, he mentions the US born child of a resident alien
- on the other hand, he mentions the “natural-born” child of a citizen
Do you see the difference?
He clearly states that only one is natural-born: the child of the citizen.
He says that both are citizens. But only the child of the citizen is natural born – for this is what he is comparing the other one to. So the holding indicates Wong Kim Ark was as much a citizen as any other citizen despite not being natural-born.
****– The Court does not say that the child of the alien is a natural-born citizen.
Had the court intended to state that both were natural born, they would have said:
“…and his child, if born in the country, is as much a natural-born citizen as the natural-born child of a citizen…”
But that’s not what they said.
- By the Wong Kim Ark decision, both children – the alien born and the natural born – are entitled to the same rights and protections as citizens.
***- But only one satisfies the requirements to be President: the natural born child.
***- This is because natural born citizen status is only required for one purpose: to be President. There’s no other legal attachment to nbc status.
***Being eligible to be President is not a right or protection of citizenship. For example, not all natural born citizens can be President. Those who are not 35 years old and/or have not been residents in the US for 14 years – though they may be natural born citizens – are NOT eligible to be President.
Here’s the final holding of the case:
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question…whether 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 domicile and residence in the United States…becomes at the time of his birth a citizen of the United States. (Emphasis added.)
This is the core holding of the case. It states that only one question is presented:
whether the child is a citizen. The single question presented is not whether the child is a natural-born citizen.
If Justice Gray and the majority deemed Wong Kim Ark to be a natural-born citizen then that’s what they would have said. But they didn’t. And this in a very detailed and thorough opinion where “natural-born” was used to compare and contrast the children of citizens to the children of aliens.
I still don’t agree with the Court’s analysis of the “subject to the jurisdiction thereof” language in the 14th Amendment, but I’ll save that for another post.
My analysis above doesn’t conclusively establish that Obama is not eligible to be President. His case is distinguished from Wong Kim Ark’s in that Obama’s mother was a US citizen. His father was never a US citizen and as such Obama (admits) he was governed by Great Britain at birth.
This presents a unique question of first impression for the Supreme Court. Based upon my review of history and law, I don’t believe Obama is eligible to be President. But it’s certainly not an easy decision either way you look at it. Yet, this is the kind of difficult decision our Supreme Court exists to answer.