Thursday, February 02, 2012

Wong V Ark

From the majority in Wong

“Again, in Levy v. McCartee (1832), 6 Pet. 102, 31 U. S. 112, 31 U. S. 113, 31 U. S. 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
"if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,"
and saying that such a child "was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354."
In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:
"The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth."
19 How. 60 U. S. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
"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. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."

By which we see that the majority opinion in Wong did in fact bring up Article II section 1, and that 19th century judges tended to use “natural-born” and “native-born” interchangeably.
Further we see that the dissent also brought up Article II section 1 and made a case very close to your own:

“By the fifth clause of the first section of article two of the Constitution, it is provided that:
"No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of the Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States."
In the convention, it was, says Mr. Bancroft,
"objected that no number of years could properly prepare a foreigner for that place; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, on the seventh of September, it was unanimously settled that foreign-born residents of fourteen years who should be citizens at the time of the formation of the Constitution are eligible to the office of President."
2 Bancroft Hist. U.S. Const. 193.
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.

...The English common law rule recognized no exception in he instance of birth during the mere temporary or accidental sojourn of the parents. As allegiance sprang from the place of birth regardless of parentage and supervened at the moment of birth, the inquiry whether the parents were permanently or only temporarily within the realm was wholly immaterial. And it is settled in England that the question of domicil is entirely distinct from that of allegiance. The one relates to the civil, and the other to the political, status. Udny v. Udny, L.R. 1 H.L.Sc. 441, 457.
But a different view as to the effect of permanent abode on nationality has been expressed in this country.
In his work on Conflict of Laws, § 48, Mr. Justice Story, treating the subject as one of public law, said:
"Persons who are born in a country are generally deemed to be citizens of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business. It would be difficult, however, to assert that, in the present state of public law, such a qualification is universally established."
Undoubtedly all persons born in a country are presumptively citizens thereof, but the presumption is not irrebuttable.
In his Lectures on Constitutional Law, p. 79, Mr. Justice Miller remarked:
"If a stranger or traveler passing through, or temporarily residing in, this country, who has not himself been naturalized and who claims to owe no allegiance to our Government, has a child born here which goes out of the country
Page 169 U. S. 719
with its father, such child is not a citizen of the United States, because it was not subject to its jurisdiction."
And to the same effect are the rulings of Mr. Secretary Frelinghuysen in the matter of Hausding, and Mr. Secretary Bayard in the matter of Greisser.
Hausding was born in the United States, went to Europe, and, desiring to return, applied to the minister of the United States for a passport, which was refused on the ground that the applicant was born of Saxon subjects temporarily in the United States. Mr. Secretary Frelinghuysen wrote to Mr. Kasson, our minister:
"You ask 'Can one born a foreign subject, but within the United States, make the option after his majority, and while still living abroad, to adopt the citizenship of his birthplace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization.' Sections 1992 and 1993 of the Revised Statutes clearly show the extent of existing legislation; that the fact of birth, under circumstances implying alien subjection, establishes, of itself, no right of citizenship, and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which confers that character."
Greisser was born in the State of Ohio in 1867, his father being a German subject and domiciled in Germany, to which country the child returned. After quoting the act of 1866 and the Fourteenth Amendment, Mr. Secretary Bayard said:
"Richard Greisser was no doubt born in the United States, but he was on his birth 'subject to a foreign power,' and 'not subject to the jurisdiction of the United States.' He was not, therefore, under the statute and the Constitution a citizen of the United States by birth, and it is not pretended that he has any other title to citizenship."

Notice again that "native-born" and "natural-born" are used interchangeably.

The judicial significance of this dissent is, that the Supreme Court is not run like Family Feud, with the justices having no idea what the “other side” is going to opine. This dissent, raising very many points that you folks hold, was considered and rejected by a majority of the Court. While it is very possible for a dissent to be later reconsidered and elevated, as with “separate but equal” discrimination on the basis of race, it can't be said your side hasn't had its innings.