Sen. Rand Paul submitted a bill to congress creating birthright citizenship in legislated act for children of aliens ‘lawfully domiciled,’ and not for children of illegal aliens.
However, he cannot do this without first fully interpreting the exact meaning of the 14th Amendment, which grants ‘native birth’ citizenship only to freed slaves and children of Indians taxed, i.e., born of stateless fathers, or fathers not affiliated with any sovereign tribe.
The constitution gave congress plenary power to make ‘uniform’ naturalization law. Rand Paul’s compromise granting birthright citizenship to ‘legal’ aliens only repeats the error of Wong Kim Ark, which was a conflict of laws that created dual citizenship. This ‘Conflicting Citizenship’ is the opposite of ‘Uniform Naturalization.’
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A careful study of Wong Kim Ark reveals the court violating 108-years of legislated act, treaty, and the constitution itself in order to ‘legalize’ the admission of one Chinese worker.
What statutes were violated by the court? For 108-years, a citizen was either born through the father being a citizen, or naturalized as a minor when the father naturalized himself. That is the principle of jus sanguinis, the law of blood inheritance. In fact, the court cited all Uniform Naturalization Acts from the First in 1790 to the one currently in force, the 1855 revisions. In all those statutes, there was no provision for citizenship at birth to a foreign father’s children, illegally or legally ‘domiciled.’[i] There was also the Chinese Exclusionary Act which remained in force until 1943, and fully repealed in 1965.
What Treaty? The Burlingame Treaty of 1868 permitted businesses to acquire unlimited Chinese labor, until the Chinese Exclusionary Act of 1882 abrogated its free immigration clauses altogether. The Treaty and Act represented a tug of war between the Executive and Legislative branches, one supporting the pro-immigration progressives and big business, and the other interests expressed by labor unions and the people. Surely, the Treaty was one-sided as U.S. citizens were limited to their influence in China and had little freedom as visitors.
And the constitution was absolutely abrogated by the court, admitting to but then ignoring the plenary power of congress to produce ‘uniform’ naturalization laws under Article I Section 8, and the limited purpose of the 14th Amendment itself. The creation of ‘native born’ citizenship was in direct conflict with 108-years of the jus sanguinis, no greater conflict with ‘uniform’ law possible.
Yes, the Wong Kim Ark court admitted that the law supported the position of the government in denying Wong Kim Ark entry into the United States–in the record as an amicus brief–the U.S. Attorney citing specific statute denying Wong’s claim of citizenship rights and therefore denying admission into the United States. (Full quote from the case below under ‘Native Born Citizenship Did Not Exist in the Law.’) But, through incredible sophism and violations of jurisprudence, the court abandoned U.S. law and reached back into England’s feudal common law and jurists; foreign and extinct opinions that in earlier centuries mandated permanent allegiance of all children born within the king’s dominions. This was the principle of jus soli, or law of the soil. And the court insisted, despite rules of jurisprudence, that English common law prevail and supersede legal precedent in order to create citizenship for Wong Kim Ark based solely on the fact he was born in the United States.
The jus soli was in direct conflict with 108-years of jus sanguinis and the constitutional mandate of congress, and congress alone, having the power to create unconflicted ‘uniform’ naturalization law.
Invasion vs Immigration
“At least one Chinamen has already been naturalized, and though none of them have any intention of remaining here permanently, if it would pay them to acquire votes and they could be protected in voting, there are none of them who would object to being naturalized every hour in the day. The swearing required is nothing to them, and as for identification, all Chinamen look alike to the unpracticed eye. At present, law or no law, the Chinese on the Pacific coast could not vote, unless between lines of bayonets; but this do not prove they will never vote. Who could have dreamed ten years ago that the slaves of South would now be the voters?” 1869-05-01 Henry George: The Chinese in California NY Tribune, pg 1, 2 https://cooperative-individualism.org/george-henry_chinese-in-california-1869-may.pdf
Thirty-three years later, a Pro-Chinese activist expressed his opinion:
“On January 12, 1902, [a human rights activist championed the Chinese. William Lloyd Garrison Jr.] gave a lengthy speech at the Henry George Club in Philadelphia. He pointed out that the real reason for Chinese exclusion was for politicians to win the favor of union voters on the West Coast.” Historical Record of Chinese Americans | A Hundred-Year Grievance: Chinese Americans and Voting Rights Chinese Exclusion Act/排华法案, English Articles / March 30, 2022
Author: Qian Huang https://usdandelion.com/archives/6970
Garrison went on to say that the Chinese were moral, upstanding people who would assimilate if given the chance. However, the article by Henry George himself described a people undercutting ‘white’ workers through accepting intolerable living standards. And, regardless of the freedoms guaranteed by the Burlingame Treaty, the people, language and culture were that of China and under total subjection of the Chinese Emperor. Money was sent back to China, workers returning to live comfortably on their savings, and ships carrying bags of gold dust regularly transited the Pacific back to China. In fact, Wong’s parents who returned to China with their minor son were described by the court as ‘permanently domiciled,’ which obviously wasn’t true. They left, having no plans to remain in the United States.
In 1898, 10% of California’s population was Chinese and they had no citizenship other than, under statute and treaty, permanent subjection to the Chinese Emperor. The Wong Kim Ark case, in violation and conflict with over 108-years of U.S. statute and treaty, suddenly created a potentially massive constituency, if not voting bloc, by creating ‘native born’ citizenship for Chinese nationals.
There were nativists and abolitionists, and many compared the denial of naturalization for the Chinese to the plight of the freed slaves. The unions were fighting to preserve livable working wages and conditions for their members and saw the Chinese laborers as a threat. On one side, pro-Chinese capitalists said there was a demand for labor justifying importation of Chinese, while the unions complained their lower wages were displacing their workers.
Considering the politics of the time, the Wong Kim Ark case may have been [I think we are safe in saying ‘was,’ rather than ‘may have been’] more politically influenced by Progressives and the Six Chinese Companies than a true and honest consideration of the law.
For the Supreme Court to enter into progressive politics is a violation of their oath of office. We saw this arrogance and violation of oath just recently when the three female liberal justices delayed issuing their Dissent in the Gerrymandering case, with the intent to obstruct states’ ability to benefit from the majority decision in the midterm elections.
Native Born Citizenship Did Not Exist in the Law
In U.S. law from 1790 to 1895, there was no such thing as a ‘native born’ form of citizenship. A child was either ‘born or naturalized,’ and the conditions were clear in the law—the child was either born to a U.S. citizen father, or the father naturalized which conferred automatically to all minor children. This part of the law is cited in full below.
Wong Kim Ark was born in the United States, but as a minor he retained the Chinese national subjection of his parents. The family returned, permanently, to China in 1890. When Wong reached the age of 21, he decided to return to the United States but was detained and ordered to be returned to China. This order was supported by the law, as presented by the District Attorney of the United States:
At the hearing, the District Attorney of the United States was permitted to intervene in behalf of the United States in opposition to the writ, and stated the grounds of his intervention in writing as follows:
“That, as he is informed and believes, the said person in
whose behalf said application was made is not entitled to land in the United States, or to be or remain therein, as is alleged in said application, or otherwise.”
“Because the said Wong Kim Ark, although born in the city and county of San Francisco, State of California, United States of America, is not, under the laws of the State of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons and subjects of the Emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China.”
“Because the said Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person, and now is, and for some time last past has been, a laborer by occupation.”
“That the said Wong Kim Ark is not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of Congress, known as the Chinese Exclusion Acts, * which would exempt him from the class or classes which are especially excluded from the United States by the provisions of the said acts.”
“Wherefore the said United States Attorney asks that a judgment and order of this honorable court be made and entered in accordance with the allegations herein contained, and that the said Wong Kim Ark be detained on board of said vessel until released as provided by law, or otherwise to be returned to the country from whence he came, and that such further order be made as to the court may seem proper and legal in the premises.”
This request for summary judgment should have been the end of it. The State Department and U.S. Attorney had jurisdiction over immigration and the law was clear. The case should have been dismissed and Wong Kim Ark returned to China. But that’s not what happened. The court decided to ignore the law and take the matter under ‘cases and controversies,’ although as clear as the law was no controversy existed. Yet, the court decided to invoke foreign, feudal law in order to change U.S. immigration and naturalization for this one Chinese laborer, a cook.
Conflicts of Law—This key ‘birthright citizenship’ case was rife with conflicts, Justice Gray even citing Joseph Story and A.V. Dicey’s opinions on the matter–the latter jurist being a British Whig. The first conflict was whether the court had subject matter jurisdiction. The law was clear, from 1790 onwards to the late 1800’s, and Justice Gray even cited and examined all legislated acts from 1790 et seq. But then he referred back to feudal and other British common law and commentaries, ignoring the clear law of the land. The cited foreign laws were not stare decisis or ‘followed’ law, yet this violation of jurisprudence allowed Gray to dismiss existing statute and create his own law.
Here is the particular text in Wong Kim Ark where the diversion takes place:
Lord Chief Justice Cockburn, [another British jurist] in the same year, reviewing the whole matter, said:
“By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.” [Writer’s Note: If you read the 1772 British Nationality Act, the father’s national allegiance and subjection is the common and key factor in the child’s national subjection and allegiance, regardless of ‘place of birth’ within the King’s dominions. So it ‘appears’ Lord Chief Justice Cockburn was mistaken.]
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.
. . . 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.”
NOTE: I highlighted the condition of minority of the child as a requirement for their inheritance of citizenship upon, and only upon, the naturalization of the father. So, under nearly 108-years of nationality law, ‘descent’ was the sole controlling factor, which the court eventually ignored in favor of foreign, feudal laws no longer followed by the country of their origin! In doing this, the child gained U.S. citizenship by mandate of the court–acting as despotic monarch–under ‘place of birth,’ while also having ‘natural’ and ‘statutory’ rights of citizenship from ‘the father,’ which in the case of children of aliens resulted in two national allegiances. If that isn’t a ‘conflict of laws,’ I don’t know what is.
In effect, Gray cites every Uniform Naturalization Act, from 1790 to 1854, and then dismisses Congressional Plenary Power under the Constitution in order to invoke English law, law not even followed by England.
To support his ‘place of birth’ principle, Justice Gray decried the practice of both England and China who considered renunciation of subjection at birth a form of treason. His opinion is noted, but today we see how China, through the Chinese Communist Party, continues to demand full subjection of Chinese nationals whether on student visas or naturalized, to perform acts of sabotage against the United States, stealing corporate secrets.
FINALLY: One must consider the outcome of the decision. One, a Chinese man born in the United States to Chinese parents who, as a family, returned to China, gained U.S. citizenship without any process of naturalization, i.e., oath of allegiance and renunciation of Chinese subjection. And two, 10% of California’s population, Chinese, suddenly became a solid constituency or voting bloc in opposition to labor unions. The question is, was the ‘birth’ of birthright citizenship then a tool of invasion as it is now? And will the U.S. Supreme Court undo its error in 1898 and let President Trump’s tariffs bring manufacturing back into the United States?
[i] 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.
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