Birthright Citizenship came out of gross violations of jurisprudence, causing Conflicts of Law and de facto, unconstitutional, ‘revisions’ to the 14th Amendment and Article II of the Constitution

Forward: Birthright Citizenship is generally understood to be a constitutional right. WRONG! It was created, unconstitutionally, by the Wong Kim Ark case in 1898. Unfortunately, any analysis and rejection of the decision is objectionable to Chinese-Americans, to whom Wong is a hero. Yes, the Chinese were excluded from citizenship, born or naturalized; but this was in agreement through treaty with the Chinese Emperor who jealously guarded the ‘subjection’ of his people, a distinct regional and racial heritage from a culture with 5000 years of history. Subjection is not unique to Imperial power. Islam shares complete subjection; renouncing of the faith considered apostasy. This aspect of foreign law is summarized at the very end of the Wong Kim Ark decision, citing Chinese law.¹

Why was the Wong Kim Ark case unconstitutional? It violated two constitutional laws–One being that naturalization law was to be uniform and completely the plenary power of congress (a fact admitted by the court). And, secondly, the judiciary was to adjudicate cases and controversies, not legislate or create conflicting ‘revisions and amendments’ to existing constitutional laws. When the 1898 court created ‘birthright citizenship,’ it was in direct conflict with existing law and resulted in the eventual general misinterpretation of Article II and the 14th Amendment. The law, and treaty, were clear; and Wong had no case.²

OPINION OF THE GOVERNMENT

“Rather, it [the government] argued that because Wong’s parents were “Chinese persons and subjects of the Emperor of China,” Wong inherited this status and was also a “Chinese person and subject of the Emperor of China.” The government further reasoned that “Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person” and was not an American citizen (Wong Kim Ark 650). If Wong were not a U.S. citizen, he would be legally barred from entering the country under the Chinese Exclusion Act. https://omeka.reed.edu/s/united-states-v-wong-kim-ark/page/united-states-v-wong-kim-ark-ruling

Wong, indeed, was not a U.S. citizen and was detained when he attempted to enter the United States for deportation and return to China. This is how the case arose, Wong insisted that he was a ‘native born’ citizen, which for over 108-years of U.S. naturalization and nationality law did NOT exist. There was no such condition for citizenship requiring ‘native’ birth. The 14th Amendment was a singular exception created in 1866’s Civil Rights Act to confer citizenship, post nati (not at birth), to ‘stateless’ freed slaves and Native Americans.

Here is the analysis by a Reed University website cited supra: By emphasizing that Wong and his parents were “Chinese persons” and not American citizens, the government highlighted the racialized conception of birthright citizenship that underpinned its argument. Likewise, these statements conflated “Chinese” with otherness, suggesting that “Chinese” and “American” were at odds with each other (Lee 105). The government’s framing of the issue in United States v. Wong Kim Ark elucidates the prominent role racial animus played in the circumstances surrounding the case, implying that Chinese persons’ racial difference was reason enough to justify their exclusion.” [emphasis added]

IS CRITICISM OF BIRTHRIGHT CITIZENSHIP VIA WONG KIM ARK RACIST?

Supporters of Wong claim that opposition to Chinese citizenship, their ‘exclusion,’ was racist. The problem with that is the Chinese Emperor himself demanded exclusion, not only of Chinese subjects becoming U.S. citizens i.e., renouncing Chinese subjection and heritage, but he denied U.S. citizens from emigrating to China. (See fn 1) The ‘white man’ or European was denied becoming Chinese.

Jurisprudence–The ‘science of law necessary for the due administration of justice.’

Rules of Jurisprudence provides guidelines for the judiciary and legislature, one being that the constitution is the highest law of the land that cannot be abrogated or violated. To change the constitution, the legislature must follow specific rules to amend it.

The judiciary cannot amend or revise the constitution! It must yield to its supremacy, and also follow laws as legislated by congress. Rules of jurisprudence also require the court to follow the judicial decisions of previous cases as precedent, or stare decisis, Latin for ‘to stand by things decided.’

The 1898 Wong Kim Ark court violated jurisprudence to create ‘birthright citizenship.’

As cited in footnote 1, the constitutional power of the legislature made it clear, for 108 years up to Wong Kim Ark, that jus sanguinis was the basic principle of acquiring citizenship; it being the fundamental principle and the law. The justices in Wong Kim Ark violated the law, relying on foreign sources which comprised the first 25 or so pages of their 85 page opinion. All those foreign sources had no power of stare decisis. The law, as cited in footnote 1, was clear. Wong had no ‘native born’ citizenship. The citing of and reliance on foreign law, ‘lords,’ foreign judges, and legal commentaries was a direct violation of jurisprudence.

The constitution gave congress plenary power to create a ‘uniform’ naturalization act. The word ‘uniform’ is key, which could be restated as ‘without conflict of law.’ However, the Wong Kim Ark court resorted to the opinions and commentaries of scholars and English common law (secondary resources, instructive but not followed as Justice Ginsberg once opined, but NOT law), thus ignoring the firm precedent the 1790 First Uniform Naturalization Act et seq (fn 2), ironically similar to the 1772 British Nationality Act. Both laws relied on the nationality and allegiance of the father (jus sanquinis), not ‘place of birth.’

The Wong Kim Ark court wanted to create ‘birthright citizenship,’ falling back on the foreign and colonial jus feudalis laws of jus soli. Here is an example, quoted in the Wong Kim Ark case:

The Code Napoleon of 1807 changed the law of France and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code “appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe — de la vielle regle francaise, ou plutot meme de la vielle regle europienne — according to which nationality had always been, in former times, determined by the place of birth.” 1 Demolombe Cours de Code Napoleon (4th ed.) no. 146. Wong Kim Ark, Page 169 U. S. 667

So, the U.S. Supreme Court decided to ignore the stare decisis of the constitution, treaty, and legislated acts, creating ‘birthright citizenship’ based on antiquated, foreign laws, not followed even by those foreign countries!

Treaty and the Chinese Exclusionary Act specifically barred Chinese from naturalizing as U.S. citizens. The Chinese Emperor claimed complete subjection of his people and the U.S. agreed, in formal treaty, that a Chinese national could not naturalize and renounce allegiance and subjection to the Chinese Emperor. This is not unusual. Even today, the Chinese Communist Party demands loyalty from Chinese, even if they naturalize or are born in the United States. This level of subjection is not unique. Islam considers leaving the religion apostasy, a crime punishable by death.

Hierarchy in the Law

According to St. Thomas Aquinas’ discourse on the law, the highest law is ‘Natural Law.’ That law is immutable, from Nature, and, as the framers described it, from Nature’s God. Laws of physics and biology come to mind. And one of those laws is that the offspring, children, just like any living thing from seeds in the plant or reproduction in the animal world, take on the nature of their fathers.

Swiss jurist Emerich de Vattel was a consummate writer. He was an authority. His treatise, ‘Law of Nations,’ was found in the effects of George Washington’s estate. Following are two sections from the Law of Nations, Ch. XIX., OF OUR NATIVE COUNTRY, AND SEVERAL THINGS THAT RELATE TO IT.

§ 212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.

§ 215. Children of citizens born in a foreign country.

It is asked whether the children born of citizens in a foreign country are citizens? . . . By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him.

What does that have to do with immigration and naturalization? The rule was that a child ‘took on the national character of the father.’ That natural law was called jus sanguinis, or ‘law from the blood.’

So, how did the 1898 U.S. Supreme Court manage to violate not only the constitution, legislated act, and natural law itself? The court declared, in a 6-to-2 majority, that under the feudal law (jus feudalis) of England, the legislature in naturalization law and the constitution in the 14^th Amendment omitted the contribution of a fundamental right of native born citizenship.

In effect, the court not only violated jurisprudence, but effectively revised the 14^th Amendment, unconstitutionally. And the result has been the massive influx of foreigners to gain, undeservedly, U.S. citizenship for their children. The misinterpretation also subtly revised ‘natural born citizenship’ in Article II of the constitution, fooling us into allowing foreign nationals from birth fathers (Obama-Kenyan, Cruz and Rubio-Cuban, Harris-Jamaican) to run for president.

So, they added ‘birthright citizenship’ to the law in direct conflict with and violation of the naturalization act, treaty with China, and ‘Natural Law’ itself! The court relied on, instead, in direct violation of jurisprudence, secondary and foreign sources of law that were not endowed with the power of stare decisis.

So, even though Wong Kim Ark was born with ‘the national character of his father,’ with all the rights and obligations of being a subject of China, the 1898 court mandated that a second citizenship be recognized as a birthright, U.S. citizenship.

This conflict created a dual, or hybrid citizenship. Even Barack Hussein Obama admitted in his autobiography that having a Kenyan father gave him British citizenship at birth. The court’s decision was not challenged by congress, and new legislation had to be created to resolve dual citizenship with rules for removing the ‘alien’ nationality. The congress also re-interpreted the 14^th Amendment’s ‘born in the United States’ clause as applying to all aliens in INA § 301 and 8 U.S.C. 1401.

And, that is why almost anyone you ask will tell you that the 14^th Amendment guarantees ‘birthright citizenship’—even though the authors of that amendment specifically denied that interpretation, and their explanation of the law is recorded in the congressional record.

Conclusion:

Why did 6 of 9 Supreme Court justices (Chief Justice Fuller and Justice Harlan dissented, Justice McKenna took no part) violate so many rules of jurisprudence? What was their motive to bend the law, in fact break it, to create ‘birthright citizenship?’ In my reading of the case, their decision was sophistry; a showy demonstration of scholarship and a romantic reversion to and resurrection of the law of English monarchs.

By violating jurisprudence and the law, the Wong Kim Ark court created conflicts of law which resonate today in the popular and common notions that ‘birthright citizenship’ is constitutional, and that persons born of foreign fathers and ‘citizens at birth’ by statutes created in the 1900’s are somehow eligible to the presidency, in violation of Article II’s ‘natural born citizenship’ clause. The 14th Amendment is misinterpreted, and Article II unconstitutionally ‘amended’ by popular misconception.

Today, immigration is an industry gaining political power. In New York City, 40% of the population is foreign born and 30% of all ER care patients are illegal aliens. In 2020, President Biden allowed our borders to be opened, advertising and organizing the influx of millions of persons of unknown identity and origin. Liberal cities advertise ‘sanctuary’ and protection for illegal aliens. And since 2002, various states (now seventeen) issued official state ID’s to illegal aliens, and their names appear on voter roll databases. (See the 2005 Help America Vote Act.) This made illegal aliens ‘de facto’ citizens.

At this very moment, the counting of illegal aliens in the census are being challenged as they give states like California extra seats in congress, and additional Electors in federal elections.

President Trump is trying to undo what Biden did, but resistance is organized and violent—federal agents attacked, fired upon with military weapons. Immigration has divided the country, both politically and culturally. An African-Muslim immigrant radical is the front runner for Mayor of New York City. In New Mexico, a DACA immigrant somehow gained citizenship through her internship with the Biden Administration and just won a state senate seat. Both of these politicians promote extreme changes to police and law enforcement.

Congress and the U.S. Supreme Court can reverse Wong Kim Ark and undo the ‘revision’ of the 14^th Amendment and Article II. But the issue has become a hot button, potentially ripping the nation apart with racial division.

1. “All persons renouncing their country and allegiance, or devising the means thereof, shall be beheaded, and in the punishment of this offence, no distinction shall be made between principals and accessories. The property of all such criminals shall be confiscated, and their wives and children distributed as slave to the great officers of State. . . . The parents, grandparents, brothers and grandchildren of such criminals, whether habitually living with them under the same roof or not, shall be perpetually banished to the distance of 2000 lee.“
   “All those who purposely conceal and connive at the perpetration of this crime shall be strangled. Those who inform against, and bring to justice, criminals of this description shall be rewarded with the whole of their property.”
   “Those who are privy to the perpetration of this crime, and yet omit to give any notice or information thereof to the magistrates, shall be punished with 100 blows and banished perpetually to the distance of 3000 lee.“
   “If the crime is contrived, but not executed, the principal shall be strangled, and all the accessories shall, each of them, be punished with 100 blows, and perpetual banishment to the distance of 3000 lee. . . .”
   Staunton’s Penal Code of China 272, § 255. ↩︎
2. By the Constitution of the United States, Congress was empowered “to establish an uniform rule of naturalization.” In the exercise of this power, Congress, by successive acts, beginning with the act entitled “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. ↩︎