Replies

Ark was a NBC based on how the court interpreted the meaning of NBC, which they derived from the meaning of NBS. That is why the dissent objected to the idea that a child born in America of tourists could be President.

This is false. The dissent was only objecting (correctly) to a claim made in the respondents appeal to the court. Gray completely ignored the claim and recast the appeal only as a question addressing citizenship via the 14th amendment:

The question presented by the record is 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 domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution, ...

Gray does this again at the conclusion of the decsion, focusing only on the "single question" before the court:

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 stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

Both the dissent and the majority opinion used the SAME definition of NBC:

Before the Revolution, the view of the publicists had been thus put by Vattel: The natives, or natural-born citizens, are those born in the country of parents who are citizens.

... all children, born in a country of [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens ...

The meat of the actual dissent was that the 14th amendment did not override the treaty with China.

...the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the Fourteenth Amendment overrides both treaty and statute.

On the contrary, [p732] I am of opinion that the President and Senate by treaty, and the Congress by naturalization, have the power, notwithstanding the Fourteenth Amendment, to prescribe that all persons of a particular race, or their children, cannot become citizens, and that it results that the consent to allow such persons to come into and reside within our geographical limits does not carry with it the imposition of citizenship upon children born to them while in this country under such consent, in spite of treaty and statute.

This is how Gray dealt with the treaty issue (and it's big part of the reason he review English common law):

...always bearing in mind that statutes enacted by Congress, as well as treaties made by the President and Senate, must yield to the paramount and supreme law of the Constitution.

I'm not sure where Gray gets this idea, because under the Constitution, treaties are on an equal level with the Constitution itself.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;