Wong Kim Ark (1898), From Conflict to Crisis
Author’s Note: If parents have existing foreign citizenship, the 14th Amendment ‘born in the United States’ citizenship at birth clause DOES NOT APPLY to their children. WHY? Because the child already has the citizenship of their parents. The 14th Amendment was drafted from the 1866 Civil Rights Act to ‘cure’ stateless children whose parents had no nationality to confer, NOT to create ‘dual’ or ‘hybrid’ citizens which is a Conflict of Law.
Modern nationality law began in the 1700’s, changing with the age of exploration, colonization, and the decline of feudal monarchies.
The jus feudalis ‘feudal’ law of jus soli (law of the soil) was replaced with jus sanguinis (law of blood), and this new standard was adopted by the United States, Great Britain and France.
A significant case relying on the jus soli, place of birth citizenship applied in common law, was the 1789 ‘Case of Mr. Smith,’ argued by James Madison. Madison won his case, that a colonial born child who grew up in England, his parents never allegiant to the United States, could claim the right to political office only for the fact he was born in one of the colonies, i.e., native-born. His opponent argued that he and his parents never naturalized or declared allegiance to the Declaration of Independence, as they were living in England. https://paraleaglenm.com/2011/04/29/the-first-eligibility-case-1789/
That case was decided just before the First Uniform Naturalization Act of 1790, which if applied would have denied Mr. Smith not only his candidacy but assumed U.S. citizenship. The 1790 Act relied entirely upon the nationality and allegiance of the father which the minor child acquired by inheritance, by blood (jus sanguinis). As the father declared allegiance, so followed the children. The law stipulated that If an U.S. father was involved in business or political station in a foreign nation, ‘over the seas’ as they put it, the child still acquired the U.S. citizenship of the father. This was, and still is, a ‘natural born citizen’ as Article II of the Constitution requires for a presidential candidate. (Cf., The Joint Session decision SR511 concerning the constitutional eligibility of John McCain.)
As for the mother, women in general, the laws required the wife not only take on the surname of the father but his national identity and religion. This was known as the Doctrine of Family Unity–essentially an acknowledgement of the biblical advice for a marriage partnership to be ‘evenly yoked.’ 2 Corinthians 6:14 states, “Do not be unequally yoked with unbelievers. For what partnership has righteousness with lawlessness? Or what fellowship has light with darkness?”
However, modern law sees (or corrupted) ‘family unity’ as a mechanism for what we now call Family Reunification, which makes a ‘birthright citizen’ baby an ‘anchor’ for daisy-chain migration for extended non-citizen and alien family members. For a discussion on the evolution of women and naturalization, see https://www.archives.gov/publications/prologue/1998/summer/women-and-naturalization-1.html
In 1866, the Civil Rights Act guaranteed U.S. citizenship to children of freed slaves (and Indians taxed) and all rights thereof, if they were born in the United States and the father had no ‘subjection to any foreign power,’ i.e., was ‘subject to the jurisdiction thereof,’ not of a foreign nation. If the father was ‘stateless,’ so became the child–the Act remedied this by reverting back to the jus soli. This law was elevated from legislation to a constitutional amendment in 1868, the 14th Amendment.
In 1898, the U.S. Supreme Court unconstitutionally created ‘native born’ citizenship rights, or what we now call ‘birthright citizenship.’ In this case, a Chinese man, Wong Kim Ark, born in the United States to Chinese parents, was subject to the Chinese Emperor’s jurisdiction concerning national allegiance. His parents returned with him to China as a minor, but as an adult he tried to re-enter the United States. He was denied entry but he claimed rights as he was ‘native born,’ a condition or element of law nowhere in statute. Wong was not a citizen under the 14th Amendment, but the court somehow granted him ‘native born’ citizenship in an unconstitutional ‘revision’ to U.S. legislated act. The court claimed that ‘place of birth’ citizenship was fundamental, citing foreign law, English court cases, and opinions that had no stare decisis or bearing on U.S. law, violating rules of jurisprudence in relying on them for their decision.
The Wong Kim Ark decision was in conflict with existing Article I legislated act, treaty, and the constitution itself. That conflict has grown into a crisis. (See “Commentaries on the conflict of laws, foreign and domestic, in regard to contracts, rights, and remedies, and especially in regard to marriages, divorces, wills, successions, and judgements,’ Story, Joseph, 1779-1845)
In 1906, a Swedish man naturalized as a U.S. citizen and his wife gave birth to Marie Elg, a ‘natural born citizen.’ She was ‘native born’ under the Wong Kim Ark case above, but as her father was a naturalized U.S. citizen, she was primarily a ‘natural born’ citizen. The father repatriated to Sweden with his family, which made his wife and minor children naturalized Swedish citizens. Years later, as an adult, Marie Elg returned to the United States and tried to repatriate claiming she was a citizen, but there were no provisions in the law except formal application for naturalization. You see, she had abandoned her U.S. ‘native’ and ‘natural born’ citizenships as a minor. The court allowed her repatriation. There was no statute codified yet to make this possible, but this was to come. Again, I refer to the archives/gov article on women and naturalization linked above.
Over the years, the issue of mixed marriages continued to create problems in immigration and naturalization. There was a time, in the early 1900’s, when foreign men married U.S. citizen women, which forced their foreign nationality upon the women and their children. In cases where the husband abandoned the wife, the woman had problems repatriating to the United State with her children. In 1922 the congress passed The Cable Act, recognizing the ‘maiden’ citizenship of the woman.
This law increased in complexity in the 1940 and 1952 Immigration and Nationality Acts. In fact, if not for these revisions Ted Cruz would not be able to claim being a ‘citizen at birth,’ and Barack Hussein Obama would not have regained his lost U.S. citizenship by fulfilling the statutory 5-years of continuous residency by age 22. Both men claim their statutory citizenships through their mother make them constitutionally eligible to the presidency, but they are incorrect. https://paraleaglenm.com/2010/01/21/a-timeline-of-barack-hussein-obamas-nationality-and-citizenships/
But the law has been torturously mangled in modern times due to massive illegal immigration, immigrants attracted to liberalized social services and healthcare. Plyler vs Doe (1982) saw a federal court mandating the states to provide social services and education to illegal aliens, even if they couldn’t afford it. Under the Biden Administration, Alejandro Mayorkas created ‘parole’ programs and undermined existing rules for asylum by issuing Social Security Numbers to illegal aliens, delaying enforcement of law under Notices to Appear. This practice, not supported by existing statute, has undermined our ability to verify voter registrations for true identity and citizenship.
That and ‘sanctuary states’ issuing drivers’ licenses abrogated immigration law in order to create a massive population of de facto citizens, increasing congressional seats, and who have even been encouraged to vote. And even if they don’t actually vote, their numbers have been counted in the decennial census adding Electoral Votes to several states giving Democrat candidates an unfair advantage in federal elections, essentially giving them an eight elector head start, or more!
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