Eugene Volokh is a professor at UCLA and best know for his Washington Post ‘blog’ column, ‘The Volokh Conspiracy.’

2020, he wrote an opinon on the Article II eligibility of Barack Obama referencing the 1898 Wong Kim Ark case, which created ‘out of whole cloth’ a totally new form of ‘citizenship at birth,’ for children born on U.S. soil to non-citizen parents.

The Wong Kim Ark case admitted the 14th Amendment’s ‘born in the United States’ citizenship clause did not apply to Wong Kim Ark, but declared that ‘place of birth’ right of citizenship, the legal term of art being ‘jus soli,’ was left out of both Art I Sec 8 nationality/naturalization legislated act, and the constitution. The 1898 court declared, with no legal proof, that ‘place of birth’ was so ‘fundamental’ a principle of citizenship at birth that it was their job to add it.

Eugene Volokh’s analysis of Wong Kim Ark was specious, merely saying that because Wong Kim Ark’s parents were legally ‘domiciled,’ their child deserved U.S. citizenship. The problem was that under both statute (exclusionary acts) and treaty with the Chinese Emperor, Chinese children were denied citizenship at birth, and Chinese denied naturalization.

In the case of Ark’s parents, they were lawfully living in San Francisco, but ‘domicile’ as a term of art is not applicable to naturalization. Domicile may denote a ‘permanent’ address, state and local jurisdiction for law enforcement and lawsuits, but is not ‘legal’ in the sense the parents had a ‘visa’ or ‘green card’ giving them a pathway to citizenship.

Here is my letter to Volokh, proving mere ‘domicile,’ whether it be a brick & mortar building or a tent, did not contribute to ‘citizenship at birth.’ In the end, the ‘domicile’ issue was moot because Ark’s parents were only in the U.S. temporarily, saving enough money to return to China. (Kamala Harris’ parents also gave up their U.S. Student Visas and relocated to Canada.)

to: Eugene Volokh

Your 2020 article is weak and poorly cited. 

You explain that Wong Kim Ark made an exception for Ark because his parents were ‘domiciled.’ This is inapplicable as both Ark’s parents and Kamala Harris’ may have been ‘domiciled’ to the extent of paying taxes or having a ‘permanent’ address, but both families moved out of the United States, never naturalizing. Ark’s parents returned to China, while the Harris family moved to Canada. 

Actually, Justice Gray wrote in Wong Kim Ark that the only justification for creating ‘jus soli’ or ‘place of birth’ citizenship was that it was a ‘fundamental principle’ somehow ignored or overlooked by Article I Sec 8 legislation, and therefore the court was acting to remedy it. That was the argument, the reasoning. He even cited Chirac vs Chirac, but then argued that because congress ‘ignored or overlooked’ jus soli, the court assumed the power to add it. WHAT? He admitted naturalization and nationality was a plenary power of congress, and then just allowed the court to do it anyway, as if some congressional scribe had neglected to literally dot an ‘i’ or cross a ‘t.’ 

The power, granted to Congress by the Constitution, “to establish an uniform rule of naturalization” was long ago adjudged by this court to be vested exclusively in Congress. Chirac v. Chirac (1817), 2 Wheat. 259. For many years after the establishment of the original Constitution, and until two years after the adoption of the Fourteenth Amendment, Congress never authorized the naturalization of any but “free white persons.” Acts of March 26, 1790, c. 3, and January 29, 1795, c. 20; 1 Stat. 103, 414; April 14, 1802, c. 28, and March 26, 1804, c. 47; 2 Stat. 153, 292; March 22, 1816, c. 32; 3 Stat. 258; May 26, 1824, c. 186, and May 24, 1828, c. 116; 4 Stat. 69, 310.

However, the ‘fundamental principle’ so admired by Gray died on the vine of history, even common law England abandoning it except as a feudal principle of lords overseeing lands and having practical ownership of the ‘villains,’ the villagers. 

In fact, if you peruse the 1772 British Nationality Act, ‘place of birth’ was not the principle, or even an exception. No matter where a child was born in the Empire, the national subjection of the father determined the nationality of the child, by blood, ‘jus sanguinis.’  

The jurists of the 19^th Century worshipped Blackstone who, while merely a Secondary Resource, was considered the ‘textbook’ for common law. But most of the original states banned British Common law to be cited unless the principle engaged by the British courts was already approved and codified in state law. [cite omitted] 

Here is Blackstone, who denotes ‘jus soli‘ not as the ‘fundamental principle’ implemented by Gray in Wong Kim Ark, but as a ‘general principle.’ 

Later, this problem of jus solis in a foreign sovereignty not under the King’s dominion is solved, “[t]to encourage also foreign commerce, it was enacted by statute 25 Edw. III st. 2 [1351], that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England . . . The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.                    The Laws of England: in four books,’  p 232, William Blackstone.

“Generally speaking” means there were exceptions, namely sojourners and children born of diplomatic or military personnel. The Harris family was, by definition, ITINERATE, i.e., sojourners. They were in the U.S. on student visas working as foreigners in university. In Kamala’s youth, they relocated to Canada. 

“§ 1473. [T]he president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election. This permission of a naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties.*Joseph Story, Commentaries on the Constitution (1833)

The chief author of the 14th Amendment, Sen. John A. Bingham, wrote, “[E]very human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866), Cf. U.S. Const. XIVth Amend.[20]

Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa: “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 … children born on our soil to temporary sojourners or representatives of foreign Governments.” (1866)

Secretary of State William H. Seward, said: “But the idea of a double allegiance and citizenship united in the same person, and having reference to two separate, independent, and sovereign nations or governments, is simply an impossibility.”

Elk v. Wilkins, 112 U.S. 94 (1884)

The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes ( 60 U. S. 73; Strauder v. West Virginia,@ 100 U. S. 303,
100 U. S. 306. This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. (p. 111)

It is also worthy of remark that the language used about the same time by the very Congress which framed the Fourteenth Amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 14 Stat. 27; Rev.Stat. § 1992. (p. 103)

Note: None of the interpretations of ‘native birth’ had, in any effect, amend or revise the constitution, specifically Article II’s ‘natural born citizen’ clause; that cognitive dissonance is a historic process of error compounded over time. 

In a letter to Henry Lee ( http://tinyurl.com/ya3wj3j ) on June 25, 1824, James Madison wrote:

 What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense . . . And that the language of our Constitution is already undergoing interpretations unknown to its founders . . . Not to look farther for an example, take the word ‘consolidate’ in the Address of the Convention prefixed to the Constitution. It there and then meant to give strength and solidity to the Union of the States. In its current & controversial application it means a destruction of the States, by transfusing their powers into the government of the Union.

No manmade law is necessary to determine the ‘national allegiance’ of a child, it being that of the father. It is by blood (half of which is from the mother, but history and tradition have women marrying take on the surname, nationality, and even the religion of the husband. Hyphenated marriages are diluted, and nationality blurred, a hybrid condition.)

That is why ‘natural born’ leads back to the father. ‘Natural-ized’ is an approximation or engineering of a new nationality by the legal process, written by men, to de-alienage a person (and their minor children) in order to accept their Oath of Allegiance. 

Natural– No Law or Statute Required. 

Natural-ized—to artificially, by artifice of law, change national allegiance and subjection. ​