The New Jersey Court was speaking hypothetically; you will note it doesn't actually cite any case where the U.S.-born child of European alien parents was held to be still an alien. It's just stating what it thinks the rule would have been if such a case had arisen before the 14th Amendment. That's why it's dicta.
Most people would call this a contradiction;
At the start of the paragraph (one long sentence actually) I quoted Gray acknowledging matters "once earnestly controverted." So it's not like Gray says there was no split of view on this issue before saying "all (white) persons" were "native born citizens" farther down. But is this a true "contradiction?" Not necessarily. And the reason is there is no caselaw holding otherwise! On a question determined by the common law, caselaw is King. (That's what "common law" is. It's judge-made, decisional law.) Legal commentators do not set precedent. Dicta about what might have been the outcome had such a case once-upon-a-time actually been brought is not precedent. They may opine on what the common law is or was; but that's not the same as an actual case with a holding contrary to the point Gray makes.
Ergo, Gray doesn't contradict himself.
It's NOT obiter dicta. Gray cited this case because it used permanent domicil as the basis for trying to satisfy the subject clause of the 14th amendment. Without that children of aliens would not have been presumed to be citizens, otherwise, there's no legal effect from talking about domicil.
Gray cites it to make a point about domicil and jurisdiction regarding the 14A; NOT about pre-14A common law citizenship. He's already answered the citizenship status of pre-14th Amendment white children in the quote I gave above. This citation comes later and he's here moved on to a different point. So the comment in the quote about pre-14A white children is dicta, as -- read in context -- it is beside the point Gray then is trying to make.
Except that this is contradicted when the court talks about the case with Scotch parents. Simply being white aliens wasn't enough. They had to be domiciled in the U.S.
Gray's cited authorities are not uniform on the domicile point. Gray cites with approval Calvin's Case, which speaks of a person born in England to someone "temporarily" present as being "natural born subject," then says the "same rule" as held true in England was the rule here in the U.S. To what extent the "domicile" term in the final decision is an essential part, given that the discussion on this point is inconsistent is debatable. There is room for saying a true "birth tourism" baby isn't a citizen under Gray's opinion. Though probably less so for children of illegals, as they really WANT (for the most part) to stay here.
OK, this wasn't as long as I anticipated; sometimes posts come out different as one moves along. But I'm sure anticipated reply to one comment in the first post will bring into play all the stuff I planned initially.
Gray says they were dealing with the child of "Scotch" parents. That would be European and alien. Domicil was applied by the court to make the child subject to the jurisdiction of the United States.
It's just stating what it thinks the rule would have been if such a case had arisen before the 14th Amendment. That's why it's dicta.
It wasn't before the 14th amendment. Here's the quote:
In a very recent case, the Supreme Court of New Jersey held that a person born in this country of Scotch parents who were domiciled but had not been naturalized here was "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment, and was "not subject to any foreign power" within the meaning of the Civil Rights Act of 1866 ...
Gray said this was "a very recent case." Wong Kim Ark was decided in 1898, about 30 years after the adoption of the 14th amendment. This case is being cited to give the court a basis for defining what the subject clause requires in the 14th amendment. Since it pertains to the decision, it's not just dicta.
Gray cites it to make a point about domicil and jurisdiction regarding the 14A; NOT about pre-14A common law citizenship.
Sorry, but this is nonsense. Gray's whole point in reviewing English common law is to establish a legal foundation on which to buttress the 14th amendment. The court was faced with a treaty from China that explicitly disallowed foreign citizenship to its subjects. The Constitutions places treaties on the same level as the Constitution itself and the laws arising under it. IOW, the only way the Constitution can override a treaty would be if there was some stronger historically established legal principle to fall back upon. Gray's solution is what he called the "ancient" and "fundamental rule of citizenship by birth." The dissent wasn't buying this. The dissent agreed that children of aliens could be born citizens under the 14th amendment if their parents had permanent domicil, but only if there was not a treaty to the contrary, such as with China.
Gray cites with approval Calvin's Case, which speaks of a person born in England to someone "temporarily" present as being "natural born subject," then says the "same rule" as held true in England was the rule here in the U.S.
Yes, and you'll notice Gray doesn't stop at those citations as being controlling. If they were, then the decision could wrap up very tidily at that point. Instead, Gray continues another 45 pages trying to come up with a stronger legal justification to make Wong Kim Ark a citizen under the 14th amendment.
To what extent the "domicile" term in the final decision is an essential part, given that the discussion on this point is inconsistent is debatable. There is room for saying a true "birth tourism" baby isn't a citizen under Gray's opinion. Though probably less so for children of illegals, as they really WANT (for the most part) to stay here.
Gray goes into quite a bit of detail on the subject of reisdence and domicil. I had counted about 12 different references. Read the introduction of the case and then the conclusion. Both make it a point to include the permanent residence and domicil of the parents. The parents weren't citizens, so this was his way of making them subject to the jurisdiction under the 14th amendment.
(intro) His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China, and during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to-wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence, and neither he nor his parents acting for him ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him [p653] therefrom ...
(the question as posed in the intro): 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,
Notice that the question is whether Ark becomes a citizen by virture of the first clause of the 14th amendment. If there truly was an ancient and fundamental rule of citizenship by birth for children of aliens and that such a rule defined natural-born citizens, then certainly that rule would have been applied without the 14th amendment, right?? But let's look at the conclusion, which is carefully crafted to conform to the subject clause:
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
The question is framed to fit the subject clause of the 14th amendment and to satisfy that clause through permanent residence and domicil of the parents. Obama didn't have that. And obviously, neither does Cruz.