Professor Kuck, Wong Kim Ark and natural-born

Yesterday, a Mario Apuzzo and Professor Charles Kuck discussed the definition of natural born. While for some mysterious reasons Professor Kuch appeared to support Mario’s poorly argued position that natural-born requires two citizen parents in clear contradiction of US v Wong Kim Ark, the good Professor does know about the case, although he refers to the plaintiff/defendant as Mr Ark.

Mimi, on the Fogbow, reminded me of a hilarious episode with Momma E

oh you never heard mario before. A classic from the Momma-E show:

viewtopic.php?f=25&t=2728&p=127319&hilit=mario+momma+e+#p127316

A caller calls in and asks Mario & Charlie Kerchner about Wong Kim Ark and how it will affect their case, and they had never heard of it. Momma-E chimes in for awhile. In the end, they decide it was bad law.

Breyer v. Meissner, 23 F. Supp. 2d 521 – Dist. Court, ED Pennsylvania 1998

Breyer v. Meissner, 23 F. Supp. 2d 521 – Dist. Court, ED Pennsylvania 1998

The court ruled that those born abroad the Jurisdiction of the United States can only become citizens through naturalization, citing United States v. Wong Kim Ark, 169 US 649 – Supreme Court 1898. The Court thereby recognized that a statute conferring citizenship at birth is an exercise of the naturalization power of Congress.

Are children born abroad to US citizen parents ‘natural born’? Part 1

1. In Re: Wong Kim Ark, 71 Fed1 382, US Dist Court, Northern Dist, California, No 11198 (3 Jan 1896)

Let’s start with the fundamental ruling on this: United States v Wong Kim Ark , 169 US 649 – Supreme Court 1898 for which we need to first look at the lower court’s findings, followed by the reply briefs filed with the Supreme Court.

The lower Court was faced with the claims that it was not Common Law but rather Natural/International Law which determines who is born a citizen. The differences is significant because, as the Court found, under Common Law practices the principle is jus soli, birth on soil, while under International Law, it was argued to be jus sanguinis, birth by blood. The former makes anyone born within the limits of a nation and subject to its jurisdiction, an automatic citizen of a nation, the latter reserves this for children born to US citizen parents, wherever born.

Mario and Cruz – getting it right for the wrong reason

Mario is still trying to ignore his position has not long since been rejected. But I believe that for the wrong reasons, he still reaches a valid conclusion about the eligibility of Ted Cruz.

Still unfamiliar with the Common Law, Mario argues

A “natural born Citizen” is a child born in a country to parents who are its “citizens” at the time of the child’s birth.  This is the settled definition of the clause under American national common law.  See Emer de Vattel, The Law of Nations, Section 212 Citizens and natives (London 1797) (1st ed. Neuchatel 1758) (“The natives, or natural-born citizens, are those born in the country, of parents who are citizens”); The Venus, 12 U.S. 8 Cranch 253, 289 (1814) (C.J. Marshall concurring);  Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830); Shanks v. Dupont, 28 U.S. 242, 245 (1830; Dred Scott v. Sandford, 60 U.S. 393, 476-77 (1857) (J. Daniels concurring); Minor v. Happersett, 88 U.S. 162, 168-170 (1875); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890); United States v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (all confirmed Vattel’s Section 212 of the The Law of Nations (London 1797) (1^st ed. Neuchatel 1758) definition of the “natural-born citizens” who “are those born in the country, of parents who are citizens”).

US v Wong Kim Ark – Birth Abroad and Common Law

United States v. Wong Kim Ark – 169 U.S. 649 (1898), the Court observes how the statutes, declaring children born abroad to subject parents were not declarative of common law.

The earliest statute was passed in the reign of Edward III. In the Rolls of Parliament of 17 Edw. III (1343), it is stated that,

“before these times, there have been great doubt and difficulty among the Lords of this realm, and the Commons, as well men of the law as others, whether children who are born in parts beyond sea ought to bear inheritance after the death of their ancestors in England, because no certain law has been thereon ordained;”

US v Wong Kim Ark – Political Jurisdiction and the Common Law

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.

Charles J. McClain – Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 Asian L.J. 33 (1995)

From Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 Asian L.J. 33 (1995)

United States v. Wong Kim Ark

It was in the case of United States v. Wong Kim Ark,35 decided in 1898, that the fascinating doctrinal issues merely touched upon in Look Tin Sing would be fully explored. Wong Kim Ark was born in San Francisco in 1873. In the fall of 1895, he sought to land in that city after a visit to China, but he was prevented from doing so and was ordered detained aboard ship by the Collector of Customs. Thomas Riordan, a lawyer who represented the Chinese Consulate in San Francisco and the Chinese Six Companies (the coordinating council of the various mutual aid associations to which Cantonese immigrants in California belonged), sued out a writ of habeas corpus on Wong Kim Ark’s behalf.36 The question of Wong Kim Ark’s right to land was brought before Judge William Morrow of the federal district court in San Francisco. 37 Judge Morrow, citing the petitioner’s birth in this country and relying mainly on the authority of Look Tin Sing, ordered him discharged from custody.38

Charles J. McClain – Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 Asian L.J. 33 (1995)

From Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 Asian L.J. 33 (1995)

United States v. Wong Kim Ark

It was in the case of United States v. Wong Kim Ark,35 decided in 1898, that the fascinating doctrinal issues merely touched upon in Look Tin Sing would be fully explored. Wong Kim Ark was born in San Francisco in 1873. In the fall of 1895, he sought to land in that city after a visit to China, but he was prevented from doing so and was ordered detained aboard ship by the Collector of Customs. Thomas Riordan, a lawyer who represented the Chinese Consulate in San Francisco and the Chinese Six Companies (the coordinating council of the various mutual aid associations to which Cantonese immigrants in California belonged), sued out a writ of habeas corpus on Wong Kim Ark’s behalf.36 The question of Wong Kim Ark’s right to land was brought before Judge William Morrow of the federal district court in San Francisco. 37 Judge Morrow, citing the petitioner’s birth in this country and relying mainly on the authority of Look Tin Sing, ordered him discharged from custody.38

Charles J. McClain – Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 Asian L.J. 33 (1995)

From Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 Asian L.J. 33 (1995)

United States v. Wong Kim Ark

It was in the case of United States v. Wong Kim Ark,35 decided in 1898, that the fascinating doctrinal issues merely touched upon in Look Tin Sing would be fully explored. Wong Kim Ark was born in San Francisco in 1873. In the fall of 1895, he sought to land in that city after a visit to China, but he was prevented from doing so and was ordered detained aboard ship by the Collector of Customs. Thomas Riordan, a lawyer who represented the Chinese Consulate in San Francisco and the Chinese Six Companies (the coordinating council of the various mutual aid associations to which Cantonese immigrants in California belonged), sued out a writ of habeas corpus on Wong Kim Ark’s behalf.36 The question of Wong Kim Ark’s right to land was brought before Judge William Morrow of the federal district court in San Francisco. 37 Judge Morrow, citing the petitioner’s birth in this country and relying mainly on the authority of Look Tin Sing, ordered him discharged from custody.38

George Collins – Am. Law. Rev. 29 (1885) 385-395 – Citizenship by Birth

George Collins was an Amicus for the Government in the Supreme Court case United States v Wong Kim Ark 169 U.S. 649 (1898). His arguments were rejected by the Court.

CITIZENSHIP BY BIRTH.

There is probably no subject of equal importance with that of citizenship by birth, which has been treated more by what appears to be a studied perversity of opinion, inculcated at the start by the decision of an inferior court, and re-affirmed by a. decision of Mr. Justice Field in the Circuit Court of the United States for the Ninth Circuit, in which he merely reiterated a portion of his dissenting views expressed by him in the Slaughter House Cases,1 where he took occasion to differ with the Supreme Court of the United States on the law pertaining to this very subject. According to his decision, a child of Chinese parentage, both father and mother being subjects of the emperor of China, born within the territory of the United States, is ipso facto, a citizen, and becomes by the fact of birth, fully vested with the status of American citizenship.

In Re Wong Kim Ark – District Court N.D. California 1896

In re WONG KIM ARK.

(District Court, N. D. California. January 3, 1896.) No. 11,198.

CITIZENSHIP—CHILD OF CHINESE PARENTS.

A person born within the limits of the United States, whose father and mother were both persons of Chinese descent, and subjects of the emperor of China, but, at the time of the birth, were both domiciled residents of the United States, is a citizen of the United States, within the meaning of the fourteenth amendment to the constitution of the United States. In re Look Tin Sing, 21 Fed. 905, 10 Sawy. 353, and Gee Fook Sing v. U. S., 1 C. C. A. 211, 49 Fed. 146, 7 U. S. App. 27, followed.