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On this “Natural Born Citizen” Issue, Part II: From William Learned Marcy to Wong Kim Ark

Promoted from diaries.

Having discussed in Part I of my series the view of Article II, Section 1 of the U.S. Constitution‘s “natural born citizen” requirement in the days of the early republic, and provided a digression on the role English common law played in American law, it is now time to look at how the clause was viewed in the latter half of the 19th century. A particular emphasis will be placed upon the 14th amendment, but as the title shows, the timeline of topics discussed makes it clear I swill be discussing more than just that. Since this time period seems to be a favorite of many birthers, I’m going to have to pay special attention to these topics. At the same time, in the interests of not making this a book length post, I will have to balance the need for some brevity as well.

Also, I apologize for such a great delay between Part I (and the digression) and this post. As you can probably tell, assembling a post like this takes a lot of research, and that can take a while. I believe I actually began Part I in April, but only returned to finish it in mid-May. Regardless, this part is finally done after sitting “in the hopper” for almost a month.

What we have learned thus far in our study is that early legal minds, including James Madison himself, all believed that a “natural born citizen” was a person born in this country to parents, regardless of whether they were citizens or not, provided that they owed the country allegiance, which would exclude foreign ministers, ambassadors, similar agents of other nations acting on behalf of their sovereign, American Indians (at the time), and enemies engaged in hostilities on a nation’s soil. This allegiance could be temporary or permanent, but it had to be present. As James Madison said:

It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.

This statement meshes nicely with William Blackstone’s definition of a “natural born subject” in his Commentaries:

Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

Insofar as the courts are concerned, they upheld Madison’s view of citizenship. As Vice Chancellor Lewis Sandford stated in Lynch v. Clarke:

The only standard which then existed [when the Constitution was written],of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen.

All of this is the Cliff’s Notes version of my statements in preceding two posts, so if you want a more detailed exposition of these points of view, I suggest you refer back to them. Now, having recapped what I have previously said, let us dive into the latter half of the 19th century.

We begin by looking at the following passage from Secretary of State William Learned Marcy, who served under President Franklin Pierce for the duration of the latter’s administration. In 1854, he wrote the following in a letter to the United States’ Minister to France John Y. Mason:

In reply to the inquiry which is made by you…whether “the children of foreign parents born in the United States, but brought to the country of which the father is a subject, and continuing to reside within the jurisdiction of their father’s country, are entitled to protection as citizens of the United States,” I have to observe that it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship. There is not, however any United States statute containing a provision upon this subject, nor, so far as I am aware, has there been any judicial decision in regard to it.

We also find some quotations from President Lincoln’s Attorney General Edward Bates. In a letter to Secretary of the Treasury Salmon P. Chase, he said:

And our constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

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.

This is not all he had to say on the matter either. In an opinion from the same year to Secretary of State Edwin Stanton, he said (bolding mine, italics are in the original):

I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship. I might sustain this opinion by a reference to the well-settled principle of the common law of England on this subject; to the writings of many of the earlier and later commentators on our Constitution and laws; to the familiar practice and usage of the country in the exercise of the ordinary rights and duties of citizenship; to the liberal policy of our government in extending and recognizing these rights, and enforcing these duties; and lastly to the dicta and decisions of many of our national and state tribunals. But all this has been well done by Assistant Vice Chancellor Sandford, in the case of Lynch vs. Clarke, and I forbear. I refer to his opinion for a full and clear statement of the principle, and of the reasons and authorities for its support.

Now, you will note that I have bolded “Lynch vs. Clarke”. I have done this to show the case’s influence. It did not exist in a vacuum, emerging out of nowhere from a single state’s court and never to be heard from again. It was influential, and as we shall later see just like we have here, it has been cited on matters of citizenship.

Before we confront the elephant in the room that is the 14th Amendment, let’s take a look at its precursor, the Civil Rights Act of 1866. The Birthers quote this particular section of the act to bolster their claims:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States…

They are also fond of quoting on of the authors of the act, Representative John Bingham, when he said during the debate over the bill:

Every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen; but, sir, I may be allowed to say further that I deny that the Congress of the United States ever had the power, or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States. Citizenship is his birthright and neither the Congress nor the States can justly or lawfully take it from him.

But they neglect to point out that he had previously said this, in 1862, on the subject of natural born citizenship that would shed more light on his views (bolding mine, italics in the original):

The Constitution leaves no room for doubt upon this subject. The words ‘natural born citizen of the United states’ appear in it, and the other provision appears in it that, “Congress shall have power to pass a uniform system of naturalization.” To naturalize a person is to admit him to citizenship. Who are natural born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth–natural born citizens.

Before moving on in our examination, I’d like to give a quote from President Andrew Johnson’s message vetoing the bill (which Congress overrode):

By the first section of the bill all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, people of color. Negroes, mulattoes, and persons of African blood. Every individual of these races born in the United States is by the bill made a citizen of the United States. It does not purport to declare or confer any other right of citizenship than Federal citizenship. It does not purport to give these classes of persons any status as citizens of States, except that which may result from their status as citizens of the United States.

So, we can tell from this that President Johnson certainly understood what this bill would do. Birthers, apparently, cannot.

And now we get to the real elephant in the room, the 14th Amendment, which passed Congress in 1866 and was ratified by 1868. Section 1 is the locus of the debate. It reads:

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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Birthers contend that this excludes the children born of non-citizens, but does it really? They are fond of quoting Representative Bingham, again, who said:

I find no fault with the introductory clause [of the bill that would become the 14th Amendment], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…

Congressional Globe, 39th Congress, 1st session, pg. 1291

In addition to the problems they’d have squaring it with his 1862 remarks, it is important to note that no one in the same Congress, at least among those who spoke up, shared his opinions. The quotes I provided above in the debate over the Civil Rights Act of 1866 ought to prove that well enough, but here are some additional ones relating to this Amendment specifically:

Blackstone says:

“The first and most obvious division of the people is into aliens and natural-born subjects. Natural born subjects are such as are born within the dominions of the Crown of England; that is with in the ligeance, or, as it is generally called, the allegiance of the king; and aliens are such as are born out of it.”–Sherwood’s Blackstone, vol. 1, p. 304.

The principle here laid down applies to this country as well as to England. It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, “founded in reason and the nature of government.”

The English law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural born subjects…This law bound the colonies before the Revolution, and was not changed afterwards…

–Rep. James Falconer Wilson, House Judiciary Committee Chair, pg. 1116

[T]he question of citizenship has been so fully discussed in this body as to not need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtual of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens,* who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

–Sen. Jacob Howard, author of the amendment’s citizenship clause, pg. 2890

The asterisk is my addition. There are some birthers out there who quote this selection and with the word “or” where the asterisk is. This word does not exist in the original copy in the Congressional Globe. I do not know how they came to think that word was there, but I wouldn’t put them above adding it themselves.

Anyways, Sen. Howard’s remarks were well understood by his fellow Senators, such as this remark by Senator George Williams of Oregon:

In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of the ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of that court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, “subject to the jurisdiction of the United States,” to mean fully and completely subject to the jurisdiction of the United States. if there was any doubt to the meaning of those words, I think that doubt is entirely removed and explained by the words in the subsequent section; and believing that, in any court or by any intelligent person, these two sections would be construed not to include Indians not taxed…

pg. 2897

And Mr. James Conness of California is also of like mind:

The proposition before us…relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision into the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.

pg. 2891

They are also like to quote Senator Lyman Trumbull in the debates over the same bill, where he said (in the first column, for those checking):

The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.”…What do we mean by “complete jurisdiction thereof?” Not owing allegiance to anybody else. That is what it means.

First of all, this quote was given in the context of whether this amendment applied to Indians not taxed. In fact, Trumbull continues:

Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn’t make treaties with them…

And shortly thereafter:

If they are there and within the jurisdiction of Colorado, they ought to be citizens; that is all that is proposed…It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.

They also ignore his other statements, given during the debate over the bill and elsewhere during his Senate career. Since there are a few, I will give the page with each quote (all are from the 39th Congress in 1866, unless otherwise noted).

If there were any question about it, it would be settled by the passage of a law declaring all persons born in the United States to be citizens thereof. That this bill proposes to do.

pg. 475

Mr. COWAN. I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?

Mr. TRUMBULL. Undoubetdly.

[...]

Mr. TRUMBULL. I should like to inquire of my friend from Pennsylvania, if the children of Chinese now born in this country are not citizens?

Mr. COWAN. I think not.

Mr. TRUMBULL. I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. That is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.

pg. 498

I have already said that in my opinion birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States.

pg. 600

By the terms of the Constitution he must have been a citizen of the United States for nine years before he could take a seat here, and seven years before he could take a seat in the other House; and, in order to be President of the United States, a person must be a native-born citizen.

It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born. That had been frequently decided in the United States. It has been acted upon by the executive department of the Government in protecting the rights of native-born persons of this country as citizens of the United States. It has been held in the judicial tribunals of the country that persons born in the United States were citizens of the United States. I read from Paschal’s Annotated Constitution, note 274:

“All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.”*

–(42nd. Congress, 1872) pg. 575

*=Actually, if you look at the quote on the Congressional Globe, this specific note from Paschal’s Annotated Constitution cites Lynch v. Clarke as one of the cases supporting this statement.

James Ho, who would become Ted Cruz’s successor as Texas’ Solicitor General, had this to say about the clause in 2007 a testimony before the Texas legislature on whether birthright citizenship ought to be repealed. He says:

I would submit that the plain meaning of “subject to jurisdiction” is rather straightforward. It simply means that one must have a duty to obey U.S. law. When a person is “subject to the jurisdiction” of a court of law, that person is required to obey the orders of that court. When a company is “subject to the jurisdiction” of a government agency, that company is required to obey the regulations promulgated by that agency. The meaning of the phrase is simple: One is “subject to the jurisdiction” of another whenever one is obliged to obey the laws of another. Simply put, the test is obedience, not allegiance.

It is also worth observing that, if the drafters had intended to require allegiance, rather than obedience, they could have said so. How easy it would have been for them to state explicitly that only children born to citizens are guaranteed birthright citizenship—with a simple proviso to address the descendants of slaves. But instead, they chose the language of jurisdiction, not citizenship. And that decision deserves respect.

Of course, the phrase “subject to jurisdiction” must mean something. Otherwise, it would serve no purpose. Under the interpretation I put forth, it does serve a purpose. The “jurisdiction” requirement excludes only those individuals who are not required to obey U.S. law. This concept—like much of early U.S. law—derives from English common law. Under the common law, neither foreign diplomats nor enemy soldiers are legally required to obey our law. They enjoy diplomatic immunity or combatant immunity from our laws. As a result, their U.S.-born offspring are not entitled to birthright citizenship.

This understanding is also confirmed by the congressional debates surrounding the Fourteenth Amendment. Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship—but no one disputed the amendment’s meaning. In fact, opponents of the amendment conceded—indeed, they warned—that the language of the Citizenship Clause would guarantee citizenship to the children of those who “owe [the United States] no allegiance.” And supporters of the amendment agreed that only members of Indian tribes, ambassadors, foreign ministers and others who are not “subject to [our laws]” would fall outside the guarantee of birthright citizenship.

The first major case that birthers like to discuss in the context of the “natural born citizen” clause is Minor v. Happernett. Since this post is already getting long, I will deal with this briefly here and expand on it in the comments if necessary. Law professor Joel Hylton gives what should be the definitive debunking of why this is a bad idea, and this is one reason why I am not going to pay much attention to it in this post. He says (in the comments, but the article itself–which was written by him–is worth a read on Chester Arthur’s case for natural born citizenship):

To cite Minor v. Happersett as the definitive statement of the meaning of the phrase “natural born citizen” is to exhibit an unfortunate lack of understanding of the Supreme Court’s 1874 decision in that case.

The Minor case involved Virginia Louisa Minor’s constitutional challenge to the Missouri law that limited voting to adult males. Her unsuccessful argument was that the Fourteenth Amendment’s guarantee of the equal protection of the laws prohibited the state of Missouri from denying women the right to vote.

Ms. Minor was born in Caroline County, Virginia on March 27, 1824. Both of her parents were born in Virginia in the 1790?s, and all of her grandparents had been born in the Virginia colony. (One of her grandmothers was a cousin of President James Madison.) Consequently,the issue of whether or not she was a national born citizen had nothing to do with the case.

To latch on the comments made by Chief Justice Waite in passing and to claim that those comments are somehow definitive is simply absurd. Moreover, as Prof. Fallone [sic] pointed out in an earlier comment, Waite specifically stated that it was not necessary to define natural born citizen to resolve the case at hand.

That comment by Edward Fallon, himself a law professor as well, that Hylton references says the following (bolding mine, italics his):

The case of Minor v. Happersett does NOT condition the acquisition of jus soli citizenship on the U.S. citizenship of both parents:

“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”

Looking at the full context given there ought to defeat any attempts by birthers to read their own agendas into the case. Remember, this case did not exist in a vacuum. It needs to be placed into the larger context of U.S. legal history as well. To ignore what people before and after have opined on the subject does a disrespect to our legal system, especially since it is so based upon precedent. This case is not, so to speak, a non sequitur in U.S. legal history. At best, this case gives us an inconclusive response on the issue of what the definition of “natural born citizen” is. For birthers, who pride themselves on relying on the original intent of the Constitution and laws, to ignore the fact that this case was never intended to decided the definition of who was and wasn’t a natural born citizen belies both their own agenda and their failure to practice reading comprehension. To borrow some words from Chief Justice Melville Fuller’s majority opinion, resort must be had elsewhere to come to a conclusive definition of what a “natural born citizen”.

United States v. Wong Kim Ark, from 1898, is probably the single most important case in determining the definition of a “natural born citizen”. Because of this, I’m going to quote this opinion at length. The full text of the ruling is here at Justia, and here are the most relevant parts. Since I’m going to quote it at length, I’m bolding the most important parts for those who want the digest version. So, here’s what it says.

The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” By the original Constitution, every representative in Congress is required to have been “seven years a citizen of the United States,” and every Senator to have been “nine years a citizen of the United States.” and “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President.” The Fourteenth Article of Amendment, besides declaring 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 State wherein they reside,”

also declares that

“no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

And the Fifteenth Article of Amendment declares that

“the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.”

[...]

In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 88 U. S. 167.

In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:

“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

124 U.S. 124 U. S. 478.

I would like to pause here and note that Smith v. Alabama is another important case when discussing the qualifications for natural born citizenship. However, I did not devote a section here to it for the sake of brevity. This quote provided here is the “money quote” from the case, though. Anyways, continuing on:

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem – and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

[...]

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, 7 Rep. 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.” 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 native-born subject might be, unless his case is varied by some treaty stipulations.”

And here is an important part of the case taking the Vattel adherents head on:

It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.

But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, “citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,” and

“mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;”

and children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by “a favor, a sort of fiction,” and Calvo, “by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality.” Pothier Trait des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 13; Prefet du Nord v. Lebeau, (1862) Journal du Palais, 1863, 312 and note; 1 Laurent Droit Civil, no. 321; 2 Calvo Droit International, (5th ed.) § 542; Cockburn on Nationality, 13, 14; Hall’s International Law, (4th ed.) § 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799. Constitutions et Chartes, (ed. 1830) pp. 100, 136, 148, 186.

Also, they sum up the same arguments from the debates over the 14th Amendment that I’ve already cited earlier, but I will provide them again since the justices give us some of their perspective as well (the [...] bits in this section are to exclude the page numbers that make it into Justia’s transcription):

During the debates in the Senate in January and February, 1866, upon the Civil Rights Bill, Mr. Trumbull, the chairman of the committee which reported the bill, moved to amend the first sentence thereof so as to read,

“All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without distinction of color.”

Mr. Cowan, of Pennsylvania, asked, “Whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Mr. Trumbull answered, “Undoubtedly,” and asked, “is not the child born in this country of German parents a citizen?” Mr. Cowan replied, “The children of German parents are citizens; but Germans are not Chinese.” Mr. Trumbull rejoined: “The law makes no such distinction, and the child of an Asiatic is just as much a citizen as the child of a European.” Mr. Reverdy Johnson suggested that the words, “without distinction of color,” should be omitted as unnecessary, and said:

“The amendment, as it stands, is that all persons born in the United States, and not subject to a foreign power, shall, by virtue of birth, be citizens. To that I am willing to consent,

[...]

and that comprehends all persons, without any reference to race or color, who may be so born.”

And Mr. Trumbull agreed that striking out those words would make no difference in the meaning, but thought it better that they should be retained to remove all possible doubt. Congressional Globe, 39th Congress, 1st sess. pt. 1, pp. 498, 573, 574.

The Fourteenth Amendment of the Constitution, as originally framed by the House of Representatives, lacked the opening sentence. When it came before the Senate in May, 1866, Mr. Howard, of Michigan, moved to amend by prefixing the sentence in its present form (less the words “or naturalized”), and reading,

“All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State herein they reside.”

Mr. Cowan objected upon the ground that the Mongolian race ought to be excluded, and said:

“Is the child of the Chinese immigrant in California a citizen? . . . I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow citizens regard them. I have no doubt that now they are useful, and I have no doubt that, within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit.”

Mr. Conness, of California, replied:

“The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. . . . We are entirely ready to accept the provision proposed in this Constitutional Amendment that the children born here of Mongolian parents shall be declared by the Constitution of

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the United States to be entitled to civil rights and to equal protection before the law with others.”

Congressional Globe, 39th Congress, 1st sess. pt. 4, pp. 2890-2892. It does not appear to have been suggested in either House of Congress that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the Fourteenth Amendment.

Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered, and not overlooked.

So, there you have it. The United States v. Wong Kim Ark case reaffirms the definition of natural born citizenship that has prevailed, as we’ve seen here and in my previous posts, throughout our nation’s history. As I have also proven here, those who quote Minor v. Happersnett clearly have no idea of the context of the case. The 14th Amendment, despite all of the birthers’ protestations, reaffirms that anyone born on our soil to people who are not untaxed Indians, children of ambassadors, enemies stationed on our soil, or any of the other aforementioned exceptions, are natural-born citizens–including those of aliens only temporarily living here. Pre-14th Amendment legal minds within the scope of this post’s timeline (roughly 1850-1900), also upheld this definition, creating a consistent strain of thought and canon of interpretation that dates all the way back to William Blackstone, Alexander Hamilton, and James Madison. To my understanding and based upon my research, there is not a single United States court case from 1760 to 1900 that cited de Vattel’s view of natural born citizenship in the majority opinion.

Additionally, in my studies, I have found the arguments put forward by the various birthers, including but not limited to Orly Taitz, Mario Apuzzo, and Leo Donofrio, are fraught with misinterpretations, misquotes, quotes taken out of context, and generally shoddy scholarship that demonstrates a lack of understanding of United States legal thought. I suspect that their method consists of grasping at whatever little quote they can, regardless of the context, and insisting it says what they say it does. Unfortunately for them, a modicum of applied research would disprove their arguments. They are a disgrace to the legal profession, a profession which has more than its share of disgraces, and to Constitutional law, and they are rightfully treated as pariahs. We on the Right are better than this, and liberty-mined Constitutional conservatives are right to reject them utterly. I would pull a William Buckley and kick them out of the conservative movement if I could. They do us no favors. I am not exactly excited to be defending the likes of Barack Obama (though I am happy to defend people like Nikki Haley, Marco Rubio, Bobby Jindal, etc.), but a corrective to their false narratives has to be supplied. I understand very well that I might not persuade a single birther, but if I can keep those on the fence from falling away and bolstering those of us who are sure of our beliefs that the birthers are wrong, I will be satisfied.

Part III is going to be up at some point, hopefully soon. It will deal with interpretations of the phrase “natural born citizen” from 1900 up until the present day. There will also be another post up to highlight an interesting peculiarity about the people who cite Vattel’s definition of citizenship in American history.

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