US v Wong Kim Ark, 169 US 649 (1898) Respondents Brief (Appellee Wong)
The attorneys for the Appellee respond
US v Wong Kim Ark, 169 US 649 (1898) Appellants Brief (USA)
The following brief was submitted by George Collins and Holmes Conrad for the US Government.
Educating the Confused – Donofrio, George Collins and Wong Kim Ark
In a posting titled The Holy Grail of POTUS Eligibility Law Review Articles: Mr. Obama and Mr. Arthur… Meet Attorney George Collins”, Leo appears to have found a paper by George Collins which he believes to be relevant. Needless to say, Collins filed an Amicus Curiae in the appeal to the Supreme Court. The same ideas which Leo find so interesting where considered and rejected by the Judges.
I thought Leo had done his homework? See also my posting on perjury and bigamy by the same George Collins. Read US v Wong Kim Ark
Mr. Solicitor General Conrad, with whom was Mr. George D. Collins on the brief, for appellants.
Same for the lower Court case
H. S. Foote, U. S. Dist. Atty., and Geo. D. Collins, as amicus curiae, for the United States.
In re WONG KIM ARK. (District Court, N. D. California. January 3, 1896.) No. 11,198.
Tested and failed… Collins’ paper was already addressed by me. Come on Leo, it took you this long to find this paper? No wonder the Minor precedent escaped you… May I suggest poker as a more profitable past-time?
And why the focus on Wong Kim Ark, try Lynch v Clarke which was truly the pivotal case for birthright citizenship. There is a rich legal history and precedent leading up to the Wong Kim Ark ruling, there are even many scholarly writings on the topic, including Collins’ attempt to deny birthright citizenship, a proposition denied by the Courts and so easily laid to rest by the respondents to his Supreme Court brief.
Greg has already picked up the task of setting Leo straight
George Collins did his argument again in the pages of the American Law Review in 1895: 29 Am. L. R. 385. Two scholars responded to his arguments in the next year. 30 Am. L. R. 241 and 535.
WHO ARE CITIZENS OF THE UNITED STATES? WONG KIM ARK CASE — INTERPRETATION OF CITIZENSHIP CLAUSE OF FOURTEENTH AMENDMENT.
WHO ARE CITIZENS OF THE UNITED STATES? WONG KIM ARK CASE — INTERPRETATION OF CITIZENSHIP CLAUSE OF FOURTEENTH AMENDMENT.
The Wong Kim Ark case, decided by the United States Supreme Court on March 28, 1898,1 decides, for the first time in that tribunal, the question whether a person born in the United States of foreign parents is a citizen of the United States under the citizenship clause of the Fourteenth Amendment. The decision holds, substantially, that the language used in the Fourteenth Amendment to the constitution is declaratory of the common-law doctrine, and not of the international law doctrine, and that, therefore, a person born in the United States is a citizen thereof, irrespective of the nationality or political status of his parents.
[NBC: Woodworth understands that the WKA court indeed had rejected International Law Doctrine (Vattel) and accepted Comon Law doctrine.]
While the question has arisen before and has been referred to in some of the decisions of the Supreme Court, still it cannot be said to have been directly involved and squarely decided until the present decision in the Wong Kim Ark case. This case settles, once for all, the question of the citizenship of children born within the United States, whose parents are foreign subjects or citizens. While it is the commonly accepted notion, and that generally entertained by the profession, that all persons born within the United States, whether of foreign parents or not, are citizens, still popular impressions may be common errors, and are not always to be regarded as the safest tests of what the law is. Whatever of doubt and misapprehension exists on the question is because of the existence of two general doctrines or tests of citizenship by birth; one, the common-law doctrine, which makes birth in a country sufficient to confer citizenship; the other, the doctrine of the law of nations, by which the political status of children is fixed by that of the parents, irrespective of the place of birth. While the question before the Supreme Court was, what constitutes citizenship of the United States under the Fourteenth Amendment, still the peculiar phraseology of the citizenship clause of that Amendment necessarily involved the further and controlling proposition as to what that clause was declaratory of; whether it was intended to be declaratory of the common-law or of the international doctrine.
The Fourteenth Amendment reads as follows : “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” The question around which the chief arguments have centered, both by counsel in the Wong Kim Ark case and by general writers on the subject, is as to the meaning of the qualifying phrase, “ and subject to the jurisdiction thereof”. This phrase was seized upon by the advocates of the international law doctrine as meaning subject to the ” political jurisdiction” of the United States, and therefore as being declaratory of that doctrine. Such were the views very plausibly maintained by Mr. Geo. D. Collins, who appeared in the Wong Kim Ark case as amicus curiae. The exponents of the common-law doctrine, on the other hand, contended, and, it must be admitted, with superior logic, that the Fourteenth Amendment was declaratory, in effect, of the common law doctrine. The latter contended that the expression: “Subject to the jurisdiction thereof,” meant nothing more than being subject to the ” laws” of the United States, comprehending such obedience as every alien owes while within the territorial limits of a foreign country. While at this late day, the question as to which of these two doctrines obtains in the United States may savor of scholastic disquisition into what should be well-settled law,still the Supreme Court considered the question of sufficient importance and perplexity to grant two arguments, and the elaborate and lengthy opinions, both prevailing and dissenting, indicate the labor, research and care given to the consideration of the question. The fact that the decision of the court was not unanimous indicates that the question is at least debatable. Mr. Justice Gray wrote the prevailing opinion, which was concurred in by all the justices excepting Mr. Chief Justice Fuller and Mr. Justice Harlan, both of whom dissented. Mr. Justice McKenna, not having been a member of the court when the arguments took place, did not participate in the decision.
The Wong Kim Ark case arose upon a writ of habeas corpus in the United States District Court for the Northern District of California. The facts of the case were, briefly, that Wong Kim Ark was born in 1873 in the city of San Francisco, State of California and United States of America; that his father and mother were persons of Chinese descent, and subjects of the Emperor of China; that they were at the time of his birth domiciled residents of the United States; that they continued to reside in the United States until 1890, when they departed for China; that about 1894, Wong Kim Ark made a voyage to China and returned to the United States in August, 1895; that he applied to the collector of the port at San Francisco for permission to land, and was denied such permission upon the sole ground that he was not a citizen of the United States, but that he was a Chinese subject, and, being a laborer, was excluded by the Chinese Exclusion Laws. From this refusal to permit him to land, a writ of habeas corpus was sued out in the United : States District Court presided over by Hon. Wm. W. Morrow. Upon a hearing duly had, that court discharged Wong Kim Ark on the ground that he was a citizen of the United States by virtue of his birth in this country, and that the Chinese Exclusion Acts were therefore inapplicable to him. The case was thereupon carried to the United States Supreme Court, which has affirmed the decision of the lower court.’
Mr. Justice Gray thus stated the question submitted for the consideration of the Supreme Court: “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, by virtue of the first clause of the Fourteenth Amendment of the constitution, ‘ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’” Then follows a most elaborate, exhaustive and able consideration of the question of citizenship of the United States. The opinion contains an exceedingly interesting, able and erudite review of the entire question, and may well be said to exhaust all the learning on the subject. The opinion will undoubtedly go down to posterity as the leading and pioneer authority in the United States on the question of what constitutes citizenship under the Fourteenth Amendment to the constitution of the United States. It is too lengthy to give a detailed resume of it. The syllabus to the opinion published in the Supreme Court Reporter indicates very clearly the rationale of the decision. It is as follows:—
“(1) In construing any act of legislation, whether a statute or a constitution, regard is to be had, not only to all parts of the act itself, and of any former act of the same law-making power of which the act is an amendment, but also to the condition and the history of the law as previously existing, and in the light of which the new act must be read and interpreted.
“(2) As the constitution nowhere defines the meaning of the words ‘ citizen of the United States,’ except by the declaration in the Fourteenth Amendment that ‘ all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,’ resort must be had to the common law, the principles of which Avere familiar to the framers of the constitution.
“(3) Under the common law, every child born in England of alien parents, except the child of an ambassador or diplomatic agent or of an alien enemy in hostile occupation of the place where the child was born, was a natural-born subject.
“(4) The Fourteenth Amendment to the constitution, which declares that * all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside,’ is affirmative and declaratory, intended to allay doubts and settle controversies, and is not intended to impose any new restrictions upon citizenship.
[NBC: Affirmative and declaratory...]
“(5) It affirms the ancient 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, except the children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies during a hostile occupation, and children of Indian tribes owing direct tribal allegiance. It includes the children of all other persons, of whatever race or color, domiciled within the United States.
“(6) The Fourteenth Amendment to the constitution, in the declaration above cited, contemplates two sources of citizenship, and two only, birth and naturalization. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen thereof, and needs no naturalization. A person born out of the jurisdiction can only become a citizen by being naturalized, either by treaty or by authority of Congress, in declaring certain classes of persons to be citizens, or by enabling foreigners individually to becone citizens by proceedings by judicial tribunals.
“(7) At the time of the adoption of the Fourteenth Amendment of the constitution, there was no settled rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.
“(8) The laws conferring citizenship on foreign-born children of citizens do not supersede or restrict, in any respect, the established rule of citizenship by birth.
“(9 ) Before the Civil Rights Act,1 or the Fourteenth Amendment to the constitution, all white persons born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were natural-born citizens of the United States.
“(10) The refusal of Congress to permit the naturalization of Chinese persons cannot exclude Chinese persons born in this country from the operation of the constitutional declaration that all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.
“(11) Chinese persons born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States so long as they are permitted by the United States to reside here, and are * subject to the jurisdiction thereof’ in the same sense as all other aliens residing in the United States, and their children * born in the United States’ cannot be less * subject to the jurisdiction thereof.”
“(12) 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.”
In arriving at the conclusion that Wong Kim Ark was a citizen of the United States, although born in this country of foreign parents, the court uses the following language: “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,1′ 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.’ It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides — seeing that, as said by Mr. Webster, when Secretary of State, in his report to the President on Thrasher’s case in 1851, and since repeated by this court, •independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a nativeborn subject might be, unless his case is varied by some treaty stipulations.’
“To hold that the Fourteenth Amendment of the constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States.”
The dissenting opinion is elaborately drawn and, for the most part, may be said to be predicated upon the recognition of the international law doctrine. But the error the dissent apparently falls into is that it does not recognize that the United States, as a sovereign power, has the right to adopt any rule of citizenship it may see fit, and that the rule of international law does not furnish, ex proprie vigore, the sole and exclusive test of citizenship of the United States, however superior it may be deemed to the rule of the common law. It further does not give sufficient weight, in interpreting the Fourteenth Amendment, to the doctrine which was prevalent in this country at the time of the adoption of the constitution and of the amendment in question, which was undoubtedly that of the common law, and not of international law.
In conclusion, it may be said that the decision sets at rest whatever of doubt may have been formerly entertained on the proposition. It conclusively answers the advocates of the international law doctrine. With respect to the superiority of the international law doctrine over that of the common law, it may be conceded that while the rule of international law, that the political status of children follows that of the father, and of the mother, when the child is illegitimate, may be more logical and satisfactory than that of the common law, which makes the mere accidental place of birth the test, still if the Fourteenth Amendment is declaratory of the common law doctrine, it is difficult to see what valid objection can be raised thereto, nor how the subject of citizenship of the United States can be deemed to be governed by the rule of international law in the absence of an express adoption of that rule, any more than it could be governed by the law of France, or of China.
Marshall B. Woodworth.
San Francisco, Cal.
36
VOL. XXXII.
Marshall B Woodworth, “Who are citizens of the United States”
Source: Marshall B Woodworth, “Who are citizens of the United States”, American law review, Volume 32
And if that leaves any doubt:
Including all children here born of resident aliens, is not an exclusionary statement but rather inclusionary. The only exclusionary categries are children born to invading military, foreign dignitaries etc. Neither WKA nor President Obama belonged to the excepted categories
Wong Kim Ark for Dummies
On CAAFLog, Ballantine posted this beautiful overview of Wong Kim Ark
WONG KIM ARK FOR DUMMIES
Here is Justice Gray’s opinion in Q&A form for those who have not read or understood it:
Question: What does the citizenship clause of the 14th Amendment mean?
Justice Gray: It “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.”
Educating the Confused: Natural Born Citizen
On Dr Conspiracy’s website we find the following comments from a poster called “tfb”
Wong says that children of aliens are not natural born citizens, but they are as much a CITIZEN as are children of citizens.
We have seen this confusion on this site as well, however as I and others have shown, the Court did nothing of the kind. In fact it clearly states that children born on US soil, regardless of the status of the parents, are natural born citizens. From the ruling
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.’
Even the dissenting Judge realized that the ruling would make natural born citizens of children born to alien parents. Why is that?
Wong Kim Ark – Fuller Dissent
Fuller accepts that under Wong Kim Ark, the children of aliens born on US soil would qualify as natural born and would be eligible for the Presidency. Fuller, in his dissenting opinion in Wong Kim Ark understands very well that which people like Mario Apuzzo and others are trying to deny. If even the justices who dissent disagree with you then you must have a real problem
Fuller:
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.
Where does the Supreme Court stand on Natural Born and Citizenship?
Greg at Obama Conspiracy explores
At least five of the nine justices currently on the Supreme Court cited Wong Kim Ark approvingly in Miller v. Albright 523 U.S. 420 (1997). A case about whether the illegitimate child of a Filipino mother and an American soldier (born abroad) should have to jump through more hoops to affirm her American citizenship than if she were born to an American mother and Filipino father.
Stevens, the majority opinion, “There are ‘two sources of citizenship, and two only: birth and naturalization.’ United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).”
Scalia and Thomas in concurrence: “The Constitution ‘contemplates two sources of citizenship, and two only: birth and naturalization.’ United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Under the Fourteenth Amendment, ‘[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.’ Ibid.”
Breyer and Ginsburg in Dissent: “I recognize that, ever since the Civil War, the transmission of American citizenship from parent to child, jus sanguinis, has played a role secondary to that of the transmission of citizenship by birthplace, jus soli. See Rogers v. Bellei, 401 U.S., at 828; see also Weedin v. Chin Bow, 274 U.S. 657, 669—671 (1927) (citing United States v. Wong Kim Ark, 169 U.S. 649, 674 (1898), and id., at 714 (Fuller, C. J., dissenting)).”
Sotomayor quoted Wong in a dissenting opinion from a 2nd Circuit opinion that suggested that because Bermudans were not “subjects” or “citizens” of the UK, they were not covered in the alienage jurisdiction of federal courts. Sotomayor wrote that this gave foreign jurisdictions the power to trump our laws in a way that was unacceptable. [1]
Her view was upheld by a unanimous Supreme Court in 2002 in JPMorgan Chase v. Traffic Stream (in another case that cited Wong Kim Ark) which brings Kennedy into the group of justices that have endorsed Wong.
Of the current sitting justices, only Alito and Roberts haven’t cited Wong. Alito, however, came from the third circuit where the circuit decided the same issue as Sotomayor faced and decided it the same way as Sotomayor and the Supreme Court – Southern Cross v. Wah Kwong. [2]
Wong Kim Ark – The Government’s Briefs
Rickey at Obama Conspiracy has actually read the briefs submitted by the appellants and appellees in Wong Kim Ark. The briefs establish a case in which the Government admitted that the District Court had ruled that the respondent is a natural born citizen. This was the ruling the Supreme Court upheld.
Never; I repeat, NEVER has SCOTUS opined that the child of an alien is a natural-born citizen of the United States.
You really should take the time to read the briefs in Wong Kim Ark.
http://www.scribd.com/doc/23965360/Wong-Kim-Ark-US-v-169-US-649-1898-Appellants-Brief-USA
In point of fact, the government acknowledged that the District Court ruling said that Wong Kim Ark was a natural born citizen:
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)
Part1 of “Where History Repeats itself”,
it’s best to study history…
In a fascinating twist, the birthers are arguing many of the same arguments which were put forward by the Government and rejected by the Court in Wong Kim Ark. Thanks to our friends at the UC Hasting College of the Law Library, we have copies of the reply briefs submitted by the Appelant (the United States) and the Respondent (Wong Kim Ark)
1. No US Common Law
- There is no Common Law in the United States
- That the question of citizenship in a nation is to be decided by the Rules of international law
2. Subject to Jurisdiction
3. Allegiance of parents versus allegiance of the child
Wong Kim Ark: Majority Opinion considers him a Natural Born Citizen according to dissenting opinion
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN dissenting, points out that the majority opinion is based on the following argument:
The English common law rule, which it is insisted was in force after the Declaration of Independence, was that
“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.”
Cockburn on Nationality 7.
The tie which bound the child to the Crown was indissoluble. The nationality of his parents had no bearing on his nationality. Though born during a temporary stay of a few days, the child was irretrievably a British subject. Hall on Foreign Jurisdiction, etc., § 1.
The rule was the outcome of the connection in feudalism between the individual and the soil on which he lived, and the allegiance due was that of liegemen to their liege lord. It was not local and temporary, as was the obedience to the laws owed by aliens within the dominions of the Crown, but permanent and indissoluble, and not to be cancelled by any change of time or place or circumstances.
And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted.
The dissenting opinion, which rejects the foundation of Common Law as regulating Citizenship, is well aware of the fact that it is English Common Law which determines the meaning of the term ‘natural born citizen’, meaning that any child born on US soil, under US jurisdiction is a natural-born citizen.
Note that Cockburn also observed that
In Re Wong Kim Ark – District Court N.D. of California
This is the District Court case that resulted in the now infamous US v Wong Kim Ark Supreme Court ruling.
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.
Petition for a Writ of Habeas Corpus. Petition granted, and petitioner, Wong Kim Ark, discharged.
Thos. D. Riordan and Napthaly, Friedenreich & Ackerman, for petitioner.
H. S. Foote, U. S. Dist. Atty., and Geo. D. Collins, as amicus curiae, for the United States.
ATTORNEY GEORGE D. COLLINS, THE BRILLIANT ATTORNEY, WHO COMMITTED BIGAMY AND PERJURY—A REMARKABLE CASE.
Note: Is this the same George D Collins? Would be somewhat ironic…
ATTORNEY GEORGE D. COLLINS, THE BRILLIANT ATTORNEY, WHO COMMITTED BIGAMY AND PERJURY—A REMARKABLE CASE.
An article appeared in the San Francisco papers of April 24, 1905, to the effect that George D. Collins, the brilliant attorney from San Francisco, had on the day previous married Miss Clarice McCurdy at a hotel in Chicago. Miss McCurdy was the daughter of Mrs. S. A. McCurdy, a wealthy widow residing in Stockton. A few days afterward, Collins returned to San Francisco with his bride and mother-in-law and secured apartments at the Palace Hotel.
Collins – Are persons born within the United States Ipso Facto Citizens thereof
Some have referenced the writings of George D Collins when attempting to make a case that Vattel and not Common Law determines who is a natural born citizen. However, these people forget to add that the same person argued many of these ‘arguments’ in front of US v Wong Kim Ark and that the Court rejected his arguments. Remarkably many of Collins’ same ‘arguments’ are to be found in the claims of the modern day birthers. With a minor difference, that since Collins made these arguments, they were rejected by the Courts.
ARE PERSONS BORN WITHIN THE UNITED STATES IPSO FACTO CITIZENS THEREOF
GEORGE D COLLINS
The American Law Review (1866-1906); Sep/Oct 1884; 18, American Periodicals Series Online pg.831
US v Wong Kim Ark – The Ruling
U.S. Supreme Court
United States v. Wong Kim Ark, 169 U.S. 649 (1898)United States v. Wong Kim ArkNo. 18
Argued March 5, 8, 1897
Decided March 28, 1898
169 U.S. 649
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Syllabus
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 domicil 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, by virtue of the first clause of the Fourteenth Amendment of the Constitution,
“All person born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Scalia on Wong Kim Ark
From poster Greg at Dr C’s Obama Conspiracy blog we learn
Scalia wrote a concurrence in Nguyen v. INS, saying [1], very briefly, that he didn’t feel the Court had an ability to grant someone citizenship who did not get it in one of the two ways he described in his concurrence in Miller v. Albright. You don’t have to read Miller very far to realize what Scalia’s talking about and also to realize what little hope you have of overturning Wong Kim Ark.
From Scalia’s concurrence in Miller v. Albright:
The Constitution “contemplates two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).
Yeah. Scalia’s not going to overturn Wong Kim Ark. (Here’s another clue in case you didn’t have your coffee this morning – citizenship by birth doesn’t have anything to do with naturalization!)
[1] I remain of the view that the Court lacks power to provide relief of the sort requested in this suit–namely, conferral of citizenship on a basis other than that prescribed by Congress. See Miller v. Albright,523 U.S. 420, 452 (1998) (Scalia, J., concurring in judgment). A majority of the Justices in Miller having concluded otherwise, see id., at 423 (opinion of Stevens, J., joined by Rehnquist, C. J.); id., at 460 (Ginsburg, J., joined by Souter and Breyer, JJ., dissenting); id., at 471 (Breyer, J., joined by Souter and Ginsburg, JJ., dissenting); and a majority of the Court today proceeding on the same assumption; I think it appropriate for me to reach the merits of petitioners’ equal protection claims. I join the opinion of the Court.
Wong Kim Ark citing Pothier on Natural Born
On Obama Conspiracy, Greg explains
In Wong, Justice Gray cites Pothier’s Traite des Personnes for the law of France. (p. 666 of the decision) Here’s the reference he was citing, pages 17-18. And, here’s one of the quotes, in the original French:
“Les citoyens, les vrais et naturels Français, suivant la definition de Bacquat, sont ceux qui sont nes dans l’etendue de la domination francaise…”
Gray translates it as “citizens, true and native-born citizens…” I think as likely a translation is “The true and natural-born citizens of France…”
It continues, “are those born within the lands under French dominion.”
Paragraph 45 of that Treatise explains that except for those born in countries that later come under French control for everyone else, it doesn’t matter whether their parents were citizens or aliens, or whether they had established a domicile there:
Au reste, pour que ceux qui sont nés dans les pays de la domination française soient réputés Français, on ne considère pas s’ils sont nés de parents français, ou de parents étrangers; si les étrangers étaient domiciliés dans le royaume, ou s’ils n’y étaient que passagers. Toutes ces circonstances sont indifférentes dans nos usages : la seule naissance dans ce royaume donne les droits de naturalilé, indépendamment de l’origine des père et mère, el de leur demeure.
That was the law of France at the time of the founding, not Vattel’s conception of it. France did not change their definition of citizenship until the Code Napolean of 1807.
United States v. Wong Kim Ark, 169 U.S. 649 – Dissenting Opinion
FULLER, C.J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
169 U.S. 649
United States v. Wong Kim Ark
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. 18 Argued: March 5, 8, 1897 — Decided: March 28, 1898
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN dissenting.
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