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Posts Tagged ‘wong kim ark case

Natural Born Citizen — Chapter 6: U.S. v. Wong Kim Ark

Citizenship case of a child born on U.S. soil to Chinese nationals

Wong Kim Ark alleged that he was born in the United States in 1873 to parents of Chinese decent whom were subjects of the emperor of China. In August of 1895, Wong Kim Ark was returning to the United States from a temporary visit to China wherein he was refused permission to land (dock) at the port of San Francisco by the collector of customs and was restrained of his liberty based solely upon the pretense that he was not a citizen of the United States.[i]

This case, like the Minor v. Happersett case, occurred after the ratification of the 14th Amendment.  Proponents of Barack Obama’s natural born citizenship status point to the following passage from the opinion written by Justice Gray[ii]:

The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.[iii] (Emphasis added)

Proponents that say Barack Obama is a natural born citizen point to the highlighted portion above concluding that is as much a citizen and the natural born child of a citizen are equivalents in that sentence.  Thus, a child born in the United States of a foreigner domiciled in the United States is a natural born citizen child.  

First, it can be unequivocally argued that the justices in their affirmative opinion above found Wong Kim Ark to be a 14th Amendment U.S. Citizen.  There can be no dispute of this fact regardless of the soundness of the Justices’ arguments.  It should also be noted that while domiciled in the U.S. and again in accordance with the 14th Amendment that “every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States” was the additional argument that the opinion of the court was making.

The crux of the ruling though for our purposes is how it relates to the natural born citizen status of an individual and in the highlighted text above, the Justices clearly state:  and his child (snip) [i]f born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.  These twenty-seven words may ultimately decide the eligibility of Barack Obama to hold the Office of the President of the United States. 

The twenty-seven word sentence is the last portion of a much longer sentence, but because it has immediately before it a semi-colon, it stands alone as a complete thought.  The portion of the sentence that has been removed (snipped) is a parenthetical statement and is not necessary to the complete thought of the sentence.  The parenthetical portion that has been snipped is utilized in the sentence to cite an authority.  The fourteenth word of the sentence is the word as (the second time the word as is used in the twenty-seven word sentence) and is one of the most important words in understanding when deconstructing the sentence. 

When as is used in this context it is used as a subordinate conjunction.  Subordinate conjunctions compare two things, but they do not compare two like things.  In order to compare to equal things, correlative conjunctions are used.  In the sentence that we have extracted from the paragraph it is clear that a subordinate conjunction is being used, and in a subordinate conjunction there is a dependent clause and an independent clause. 

In our sentence, the independent clause is is as much as a citizen and the dependent clause is as the natural-born child of a citizen.  The relationship between the two clauses is in fact a comparison though.  It is a comparison between two types of American children.  One child is a child born in America and the other is a natural born American child.  They are not equivalent though because they are separated by a subordinate conjunction rather than a correlative conjunction.  The two children represented in the dependent and independent clauses being discussed are clearly two different children, but they are purposely being compared to one another.  In the independent clause, the child is a citizen even though his parent is a foreigner domiciled in the U.S.  In the dependent clause the child of the citizen is a natural born child.  In the independent clause, the child of the foreigner domiciled in the U.S., although the child is concluded to be a citizen, the foreign parent domiciled here is not necessarily a citizen.  Whereas, in the dependent clause, the parent of the natural born child is in fact a citizen, the parents as well as the child are both citizens.  Two completely different children are being compared to one another making use of the grammatical construct of a subordinate conjunction and determining that both children are citizens but not natural born citizens.  This is a critical point and should not be obfuscated.

Proponents of Barack Obama’s natural born citizen status could easily agree with the above grammatical analysis and still come to the same conclusion that Barack Obama is a natural born citizen.  They might argue even if the subordinate clause in question in itself is not comparing two equivalent children what the Justice is saying is that these two different children are as the final portion of the sentence states “and by operation of the same principle.” [iv]  On the other hand, those analyzing the sentence without deconstructing the sentence grammatically may conclude, just on the face of it, or in accordance with their first impression when they read the sentence appears to equate these two children implying that they are both natural born citizens.

In order to understand the Wong Kim Ark case one must know the history of the day.  At the time, the Chinese people were beholden to the Emperor of China.  The Wong Kim Ark case took very serious the notion of subject to the jurisdiction thereof not only in the sense of jurisdiction held by a nation while you were residing in it as to that nation’s laws, but actual allegiance to the nation in which you were residing.  The Wong Kim Ark case had to wrestle with the ability for a Chinese resident of the United States having legal allegiance under the 14th Amendment to the United States versus some political allegiance they have to give to the Emperor of China.  In the sentence we have been studying, remember we only took the last part of the sentence after the semi-colon, but the sentence is part of a greater thought on “subject to the jurisdiction thereof.”  The justices concluded in this sentence that both children (the child of resident aliens and the natural born child of a citizen) were both by operation the same principle.  Does this actually prove they were both therefore natural born citizens?

Justice Gray in writing the opinion of the court in this case went into a very a lengthy explanation of natural born citizens and subjects.  In the opinion, he writes:

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established. [v]

On the other hand, Chief Justice Fuller whom wrote the dissenting opinion in the Wong Kim Ark case stated the following:

Before the Revolution, the views of the publicists had been thus put by Vattel: ‘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. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.’ Vatt. Law Nat. bk. 1, c. 19, 212. ‘The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. … The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction. [vi]

We, therefore, have two differing opinions within this one case of the subject of natural born citizen.  Granted, weight must be given to the case’s opinion rather the case’s dissent.  However, for those whom are still convinced that the Wong Kim Ark case unequivocally argues that a child born on U.S. soil regardless of the status of their parents’ citizenship is a natural born citizen, I ask the following question.  Why did Justice Gray not make this argument, place these words in the final paragraph of the courts’ decision when he wrote:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.[vii] (Emphasis added)

Justice Gray could have written, becomes at the time of his birth a natural born citizen of the United States, but he did not use this qualification.

The problem with the original quoted passage from Wong Kim Ark and in particular the sentence that we have been deconstructing is that the sentence is just poorly constructed especially for use within a precedent setting legal opinion.  This sentence could have been constructed in a much clearer fashion which would have obviated the confusion we have today regarding Wong Kim Ark’s case and its relationship to the natural born citizen subject.  And as stated in the last paragraph, Justice Gray could have removed all doubt in the final paragraph of his written opinion.  In fairness to the Justice, the Wong Kim Ark case was not a case that required Wong Kim Ark to be a natural born citizen.  The case simply needed to prove that Wong Kim Ark was a 14th Amendment citizen.  It would have been convenient today if the quoted passage was more clearly defined in terms of natural born citizen status in a subsequent sentence by the Justices, but they felt no compelling reason to clear up any issues with regard to natural born citizens as their case did not require such a ruling.

As a result, it appears to this author that Wong Kim Ark really does not add precedent nor provide a final clarification of the natural born citizen definition, nor did the Minor v. Happersett case as to our legal impression of what was meant by natural born citizen.  Therefore, we remain without a legal definition of the term natural born citizen by our courts.

For a more thorough discussion on the Wong Kim Ark case please see the following discussions at the following website links:

http://naturalborncitizen.wordpress.com/2009/07/30/justice-horace-gray-clearly-indicated-wong-kim-ark-was-not-a-natural-born-citizen/

http://people.mags.net/tonchen/birthers.htm#ref14

http://federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered.html


[i] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[ii] Justice Gray was appointed by President Chester Author.  There has been question as to whether or not Chester Author usurped the Presidency of the United States.  For a thorough discussion on this topic please see Leo Donofrio’s blog posts on this subject at http://naturalborncitizen.wordpress.com

[iii] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[iv] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[v] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[vi] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[vii] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

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Written by KJ Kaufman

August 21, 2009 at 10:24 pm