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:
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.
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 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) (1st ed. Neuchatel 1758) definition of the “natural-born citizens” who “are those born in the country, of parents who are citizens”).
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;”
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