Educating the Confused – Mario and Wong Kim Ark

Let’s try to educate our dear counsel on the proper facts surrounding the Wong Kim Ark case. As anyone would understand, the case started in a lower court, this one started in the Northern District of the California District Court. Mario objected and claimed that I was wrong and that the Lower Court never mentioned ‘natural born’. So I quoted the following from the ruling

“The petitioner belongs to the Chinese race, but he was born in Mendocino, in the state of California, in 1870. In 1879 he went to China, and returned to the port of San Francisco during the present month (September, 1884), and now seeks to land, claiming the right to do so as a natural-born citizen of the United States.

Citing Lynch v Clarke,

“Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, and their descendants, that birth within the dominions and jurisdiction of the United. States of itself creates citizenship.

After an exhaustive examination of the law, the vice chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added that this was the general understanding of the legal profession, and the universal Impression of the public mind

The Court also observed that the Court in Minor passed on the question and observed that under common law a child born on soil to alien parents was indeed a (natural born) citizen.

In the case of Minor v. Bappersett, 21 Wall. 168, the court expressly declined to pass upon that question. Nor was there any definition; in the constitution or in the acts of congress, of what constituted citizenship, until the adoption of the fourteenth amendment. At the common law, if the parent be under the actual obedience of the king, and the place of the child’s birth be within the king’s obedience as well as in the dominion, the child becomes a subject of the realm; in other words, birth within the realm was deemed conclusive. This was decided in Calvin’s Case, reported by Lord Coke, 7 Coke, 1, and has always been recognized as the common-law doctrine. 1 Bl. Comm. 366; 2 Kent, Comm. 9; Lynch v. Clarke, 1 Sandf. Ch. 583; U. S. v. Rhodes, 1 Abb. U. S. 28, Fed. Cas. No. 16,151.

The Court Ruled in a decision in which the Judge explicitly rejected the argument that it was International Law/Law of Nations that guided the interpretation of the term ‘natural born’

The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in declaring it to be the law against controlling judicial authority.

The case was appealed to the Supreme Court were several briefs were submitted by the Appellee (Wong Kim Ark) and the Appellant (the government).

In one of the briefs of the Appellant, the attorney submitted the following to the Court

The question presented by this appeal may be thus stated:Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen … (p.2)

and

The district court, following as being stare decisis the ruling of Mr. Justice Field in the case of Look Tin Sing (10 Sawyer, 356), sustained the claim of the respondent, held him to be a citizen by birth, and permitted him to land. The question presented by this appeal may be thus stated: Is a person born within The United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen, and on that ground holding him exempt from the provisions of the Chinese exclusion act and permitting him to land.

We all know what the Court in US v WKA found:

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, 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.

Now, I have not even addressed the claims made by the appellant and how the Court clearly rejected them, and with them, most of Mario’s academic musings.

 

The Lower Court in Re: Wong Kim Ark observed that George Collins argued much of the same arguments as proposed by Mario, namely that the doctrine of international law determines citizenship in the US.

The district attorney was assisted by Mr. George D. Collins, of the San Francisco bar, who appeared in the matter as amicus curiae. Mr. Collins’ position upon this question has been known for some time, and his views have been expressed in able and interesting articles in the American Law Review. 18 Am. Law Rev. 831; 29 Am. Law Rev. 385. He maintains that the doctrine of international law as to citizenship exists in the United States, and not that of the common law; that the citizenship clause of the fourteenth amendment is in consonance with the international rule, and should be so interpreted; and that, therefore, birth within the United States does not confer the right of citizenship.

The Government also had argued that ‘subject to the jurisdiction’ meant political jurisdiction not merely ‘subject to the laws’ The Court found that the issue had been decided in, in Re Look Tin Sing, supra, where it was held that it meant subject to the laws of the United States.

“With this explanation of the meaning of the words in the fourteenth amendment, ‘subject to the jurisdiction thereof,’ it is evident that they do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship; and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.”

Since the Government had raised the Slaughterhouse cases, the judge looked at them and found them to be lacking as they were mere dictum.

That this last sentence, which is the expression relied on by counsel for the government, is mere dictum, is plain from what has been stated as the issue involved in those cases. That being so, the observations referred to and relied upon, however persuasive they may appear to be, cannot be accepted as declaring the law in this circuit, at least as against the authority of In re Look Tin Sing, where the question was squarely met and decisively settled. But it is to be observed that the supreme court, immediately succeeding the remarks just quoted, used the following significant language:

The Court similarly rejected Elk v Wilkins.

While observing that the counsel for the government had raised some interesting ‘academic’ :-) arguments, he however found that

Counsel for the United States have argued with considerable force against the common-law rule and its recognition, as being illogical, and likely to lead to perplexing, and perhaps serious, international conflicts, if followed in all cases. But these observations are, obviously, addressed to the policy of the rule, and not to its interpretation. The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in declaring it to be the law against controlling judicial authority.

But the Government decided to Appeal, thank goodness, to the Supreme Court where the Court affirmed the lower Court ruling. More on the briefs and the ruling in a next contribution.

Needless to say that the Court found significant precedents supporting the common law interpretation of natural born and not the international law interpretation (aka Vattel or Law of Nations interpretation.)

The Court even observed how the Court in Minor expressly declined to pass upon that question.

By itself, this ruling lays to rest any of Mario’s musings but the lower Court ruling was further elaborated by the Supreme Court in US v Wong Kim Ark.

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