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.
There are only two classes of citizens of the United States, native-born citizens and naturalized citizens;1 and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.2
and outlined in Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement by Jack Maskell
In Zimmer v. Acheson, the United States Court of Appeals for the 10th Circuit found that the appellant, who had been born in Germany to a father who had been a naturalized U.S. citizen, was himself a “naturalized” citizen who could be expatriated under the provisions and requirements of the then-existing federal law:
There are only two classes of citizens of the United States, native-born citizens and naturalized citizens; and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.
Revised Statutes § 1993, in force at the time of the birth of Harry Ward Zimmer [appellant], provided: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”
If Werner Herman Zimmer [the appellant’s father], by virtue of his naturalization on October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen.
|Defendants:||Secretary of State Debra Bowen, The Republican National Committee, The Republican Party of California and John McCain|
|Filed:||August 11, 2008|
|Court:||California Northern District Court|
|Office:||Constitutional – State Statute Office|
|Presiding Judge:||Hon. William H. Alsup|
|Presiding Judge:||Magistrate Judge James Larson|
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;”
Attorney General Bates explains his understanding of who are natural-born citizens, and explains why children born abroad to US citizen parents are under common law not citizens. The logical conclusion is that such children are neither born citizens and thus not natural-born. Bates was Attorney General under Lincoln from 1861 to 1864.
Few people may have realized that Attorney General Edward Bates declared, in one of his opinions, that free African-Americans born in the United States were citizens. Even though Bates was a surprising candidate to have written such an opinion, the opinion continues to help us understand the birth right citizenship foundation of our Nation
That Bates of all people should defend black citizenship was peculiar. Generally regarded as the most conservative member of Lincoln’s cabinet, he had been born to a slave-owning family in Virginia. When he moved to Missouri, he sold what slaves he could for travel expenses. In Missouri, he helped draft a proslavery state constitution. When Dred Scott, a Missouri slave, sued for freedom, Bates had no problem with the opinion of Chief Justice Roger B. Taney that Scott, as a black person, was not a citizen and thus could not bring suit. He objected only to Taney’s pronouncement that Congress could not prohibit slavery in American territories. Yet Bates also earned some fame by successfully representing a Missouri slave who had sued for her freedom.
Source: The Opinionator
Some relevant quotes which again, lay to rest any ideas that Vattel or the citizenship of the father plays any role in determining the citizenship of the child.
If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the ” natural born” right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.
That nativity furnishes the rule, both of duty and of right, as between the individual and the government, is a historical and political truth so old and so universally accepted that it is needless to prove it by authority. Nevertheless, for the satisfaction of those who may have doubts upon the subject, I note a few books which, I think, cannot fail to remove all such doubts—Kent’s Com., vol. 2, part 4, sec. 25; Bl. Com., book 1, ch. 10, p. 365; 7 Co. Rep., Calvin’s case; 4 Tenn. Rep., p. 300; Doe v. Jones, 3 Pet. Rep., p. 246; Shanks v. Dupont; and see a very learned treatise, attributed to Mr. Binney, in 2 Am. Law Reporter, 193.
In every civilized country the individual is born to duties and rights—the duty of allegiance and the right to protection; and these are correlative obligations, the one the price of the other, and they constitute the all sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, his country. In most countries the old law was broadly laid down that this natural connection between the individual and his native country was perpetual; at least, that the tie was indissoluble by the act of the subject alone.—(See Bl. Com. supra; 3 Pet. Rep. supra.)
It is an error to suppose that citizenship is ever hereditary. It never “passes by descent.” It is as original in the child as it was in his parents. It is always either born with him or given to him directly by law.
Read the full opinion here