A Criticism of Wong Kim Ark (1898)

Message from the Writer–Case law and statute on this subject can flesh out a law review article, if not fill a book.

But Birthright Citizenship comes down to this: Natural Law is the jus sanquinis, the conferring of citizenship/allegiance/nationality by birth through the father. It is a natural inheritance. Natural Law is the higher law, the ‘Laws of Nature and Nature’s God.’ Aquinas pondered upon divine providence and concluded that, “participation of the eternal law in the rational creature is called the natural law.”

Unfortunately, the 1898 Supreme Court, in direct violation of Article I Section 8, immigration statute, and treaty, decided to insert Birthright Citizenship into the law. They relied on the jus feudalis to reincarnate the ancient principle of jus soli, feudal laws invoking the land, the soil, of the feudal landlord and king.

Logical analysis suggests that the Natural citizenship, by descent, cannot be superseded or replaced by the edict of Man’s Law (humanism) over Nature, citizenship ‘otherwise than by descent.’ Connecticut Chief Justice Jesse Root warned that our laws are not English Common Law from some despot. Ecclesiastes 8:9 warns us that “All this I saw, as I applied my mind to everything done under the sun. There is a time when a man lords it over others to his own injury.”

In Article II, the framers limited the presidency to a ‘natural born citizen,’ not one of artifice created by statutes, i.e., naturalization law. Barack Obama, Kamala Harris, Ted Cruz, and Marco Rubio all had foreign fathers and their citizenship was not natural or ‘by descent,’ but ‘otherwise than by descent.’

Leonard Daneman, Paralegal Researcher

“Citizenship is established by the laws of each individual country. Those laws are generally classified into two types: jus soli, in which citizenship is based on the place of birth, and jus sanguinis, in which citizenship is based on the citizenship of one (or both) parents.” Wauchope v. US Dept. of State, 756 F. Supp. 1277, 1283 (N.D. Cal 1991), affirmed , Wauchope v. US Dept. of State, 985 F. 2d 1407 (9th Cir. 1993)

Justice Horace Gray, writing for the majority in Wong Kim Ark, interpreted the 14^th Amendment as a ‘constitutional’ definition of citizenship at birth. Was he correct? Or was his application of English common law a violation of jurisprudence, i.e., could he have relied instead upon existing legislated act in determining Ark’s rights to U.S. citizenship?

Why is this an important discussion?

May I submit that Gray’s misinterpretation of the 14^th Amendment has caused conflicts of law including: 1) dual nationality created by jus soli citizenship granted to children of aliens, 2) so-called ‘birthright’ citizenship creating the illegal alien invasion, and; 3) a son of an alien father claiming Article II natural born citizenship eligibility to the Presidency of the United States.

Let’s Dive Right In

After stating the facts of Ark’s case, Gray cites Chief Justice Waite in Minor vs. Happersett , emphasizing his reliance on common law:

In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.

Yet, Justice Waite said a bit more than what Gray cited. Waite continues:

. . . At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.[1] Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. 88 U.S. 162 Minor v. Happersett (1875)

From here, Gray delivers a long-winded history of English common law concepts of subjection and allegiance, and concludes that birth within the dominion of the monarchy was the principle of citizenship at birth.

Wherefore Art Thou Term of Art?

Justice Waite commented that nowhere in the constitution was there, ‘in words,’ a definition of ‘natural-born citizen.’ However, did English law contribute an accurate understanding of that term of art?

Pa. 1818.  The construction of English statutes before the revolution will be given great weight in construing Pennsylvania statutes in pari material.   Seidenbender v. Charles, 4 S. & R. 151, 8 Am.Dec. 682.

‘In pari material’ suggested that Pennsylvania’s legislated acts, if ambiguous, could be interpreted by relying, to a reasonable degree, on English law.

However, if the English statute defining jus soli citizenship at birth was not listed in state supreme courts, that principle of ‘place of birth’ had no power of law:[2]

Pa. 1897.  The omission of a statute from the list of English statutes reported by the judges of the Supreme Court as in force in Pennsylvania, 3 Binn. 595 [1808], raises a strong presumption that such statute is not in force there.   Gardner v. Keihl, 37 A. 829, 182 Pa. 194.

English naturalization law is very complex; jus soli was just one aspect of it, and a very generalized principle. In fact, the British Nationality Act of 1772 specified that children born outside of the dominion, but to English subjects, were natural born subjects by descent.[3] Jus soli citizenship is, conversely, ‘otherwise than by descent.’

In addition, according to English law, relied upon by pre-Revolutionary American colonies, legal inhabitants of alien nationality who had children on English soil could file a formal declaration of intent that their children were NOT subjects of Great Britain.[4]

Justice Gray could find no specific codification of English naturalization law, which is why he focused on generalized English common law jus soli as relied upon by pre-Revolutionary war American colonies.

More Food for Thought

Note the Connecticut Chief Justice Jesse Root’s comment in ‘The Origin of Government and Laws in Connecticut’ (1798), stating the following:

We need only compare the laws of England with the laws of Connecticut, to be at once convinced of the difference which pervades their whole system . . . These rights and liberties are our own, not holden by the gift of a despot. Our government and our rulers are from amongst ourselves; chosen by the free, uninfluenced suffrages of enlightened freemen; not to oppress and devour, but to protect, feed, and bless the people, with the benign and energetic influence of their power (as ministers of God for good to them). This shows the ignorance of those who are clamorous for a new constitution, and the mistake of those who suppose that the rules of the Common Law of England are the common law of Connecticut, until altered by a statute.

Compare this to, “From the General Assembly of Virginia to the Senators from that State in Congress, January 11th, 1800:

 
THE General Assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle and tremendous in its consequences: That the common law of England is in force under the government of the United States.  Deeply impressed with these opinions, the general assembly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts To oppose the passing of any law, founded on, or recognising the, principle lately advanced, ‘that the common law of England is in force under the government of the United States,’ excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; …. and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated.

Tucker’s Blackstone, Appendix, page 438

So, to summarize, English common law was, indeed, the transitional basis for laws relied upon by our first U.S. citizen jurists. However, when U.S. congressional legislated acts were passed, there could be no conflicts[5] with the old law, i.e., U.S. legislated act superseded English statutes.

Our First Uniform Naturalization Law

Justice Gray didn’t formally cite legislated naturalization law, however he did provide it as a series of general quotes:

“An act to establish an uniform rule of naturalization,” passed at the second session of the First Congress under the Constitution, has made provision for the admission to citizenship of three principal classes of persons: First. Aliens, having resided for a certain time “within the limits and under the jurisdiction of the United States,” and naturalized individually by proceedings in a court of record. Second. Children of persons so naturalized, “dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization.” Third. Foreign-born children of American citizens, coming within the definitions prescribed by Congress. Acts of March 26, 1790, c. 3; January 29, 1795, c. 20; June 18, 1798, c. 54; 1 Stat. 103, 414, 566; April 14, 1802, c. 28; March 26, 1804, c. 47; 2 Stat. 153, 292; February 10, 1854, c. 71; 10 Stat. 604; Rev.Stat. §§ 2165, 2172, 1993.

In 1802, all former acts were repealed, and the provisions concerning children of citizens were reenacted in this form:

The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents’ being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.

Act of April 14, 1802, c. 28, § 4; 2 Stat. 155.

As an exercise, let’s apply U.S. legislated act to a child born on U.S. soil to alien parents. I made it simpler by highlighting appropriate sections. Note the underlined section of the 1802 Act, including children born prior to the March 23, 1790 passage of the First Uniform Naturalization Act, relying on state laws and English common law, i.e., “or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof.”

There is no ambiguity there; English common law had been supplanted by congressional legislated act.

Suddenly, the Constitution Defines Citizenship at Birth, not Congressional Legislated Act

Here is how the 14th Amendment was interpreted as citizenship at birth, regardless of the alienage of the parent father:

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.

The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.

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[1] Cf. Emerich de Vattel, ‘Law of Nations,’ §§ 212, 215

[2] “[T]he common law prevails unless changed by statute, Price v. Time, Inc., 416 F. 3d 1327, 1342 (11th Cir. 2004) “Statutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” United States v. Texas, 507 US 529, 534(1993)(quoting Isbrandtsen Co. v. Johnson, 343 US 779, 783 (1952))

[3] Wong Kim Ark, 169 U.S. 649, Dissent by Chief Justice C.J. Fuller, “Whether it was also the rule at common law that the children of British subjects born abroad were themselves British subjects — nationality being attributed to parentage, instead of locality — has been variously determined. If this were so, of course, the statute of Edw. III was declaratory, as was the subsequent legislation. But if not, then such children were aliens, and the statute of 7 Anne and subsequent statutes must be regarded as, in some sort, acts of naturalization. On the other hand, it seems to me that the rule partus sequitur patrem has always applied to children of our citizens born abroad, and that the acts of Congress on this subject are clearly declaratory, passed out of abundant caution to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere.

Section 1993 of the Revised Statutes provides that children so born are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.

Thus, a limitation is prescribed on the passage of citizenship by descent beyond the second generation if then surrendered by permanent nonresidence, and this limitation was contained in all the acts from 1790 down. Section 217 provides that such children shall “be considered as citizens thereof.”The language of the statute of 7 Anne, c. 5, is quite different in providing that the children of all natural-born subjects born out of the ligeance of Her Majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom to all intents, constructions and purposes whatsoever.

[4] http://www.scribd.com/doc/23965360/Wong-Kim-Ark-US-v-169-US-649-1898-Appellants-Brief-USA pg 9

[5] “The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.”  Dicey Conflict of Laws, pp. 173-177, 741.