“Sorry, but this wrong. Fuller is responding to the government’s appeal from the lower court ruling. He’s NOT saying ANYTHING about the majority’s decision at this point because there’s nothing in the majority opinion that says what you quoted from the dissent.”
The appellants do not contended that child of citizens born outside the jurisdiction of the United States were not citizens at birth, but Justice Gray did.
“A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.”
Chief Justice Fuller’s statement could only be directed at the majority opinion.
“Nor does he [Justice Gray] cite Lynch for a definition of NBC.”
Except he does.
“Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371.” Justice Gray, Won Kim Ark
This quote doesn't say the children born out of the jurisdiction were not citizens at birth. It says they become citizens "by authority of Congress, exercised either by declaring certain classes of persons to be citizens." Fuller cites several of the acts of Congress that declared such persons to be citizens if born abroad. What Fuller is arguing is that the majority opinion is now requiring children born abroad to be naturalized IN THE UNITED STATES upon reaching their majority instead of being naturalized at birth under the law. It's not the same argument. And it's a conclusion that isn't supported by what you just quoted from Gray nor anywhere else in the majority opinion.
“Nor does he [Justice Gray] cite Lynch for a definition of NBC.”
Except he does.
“Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371.” Justice Gray, Won Kim Ark
You need to read this more closely. This doesn't say anything about natural-born citizenship. And Gray is calling these case outliers ... they have gone "the farthest" ... if this was his precedent or legal justification from making Wong Kim Ark a citizen, the ruling should have stopped at this point. Instead, this he continues writing another 30 pages worth of opinion trying to build a sound legal reason to overrule the treaty that the dissent said should have been controlling.
Also, you need to read the dissent more closely. It doesn't disagree with Gray's basic premise of persons being born in the U.S. being citizens as long as their parents had permanent residence and domicil. The difference is that Fuller makes a clearer declaration than the majority that children who are born to temporary alien residents (such as Obama) are NOT citizens.
In his work on Conflict of Laws, § 48, Mr. Justice Story, treating the subject as one of public law, said:
Persons who are born in a country are generally deemed to be citizens of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business. It would be difficult, however, to assert that, in the present state of public law, such a qualification is universally established.
Undoubtedly all persons born in a country are presumptively citizens thereof, but the presumption is not irrebuttable.
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If a stranger or traveler passing through, or temporarily residing in, this country, who has not himself been naturalized and who claims to owe no allegiance to our Government, has a child born here which goes out of the country [p719] with its father, such child is not a citizen of the United States, because it was not subject to its jurisdiction.
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These considerations lead to the conclusion that the rule in respect of citizenship of the United States prior to the Fourteenth Amendment differed from the English common law rule in vital particulars, and, among others, in that it did not recognize allegiance as indelible, and in that it did recognize an essential difference between birth during temporary, and birth during permanent, residence. If children born in the United States were deemed presumptively and generally citizens, this was not so when they were born of aliens whose residence was merely temporary, either in fact or in point of law.
The bottom line is that there is NOTHING in the Wong Kim Ark decision that makes Obama a natural-born citizen, but that's providing he could legally prove he was born in the U.S.