Friday, March 28, 2008

Let's Celebrate 110 Years of United States v. Wong Kim Ark!!!!

Wongkimark Diane Amann of IntLawGrrls today celebrates the 110th anniversary today of the U.S. Supreme Court decision in United States v. Wong Kim Ark, 169 U.S. 649, 731 (1898), the foundational case on birthright citizenship that, despite persistent attack from immigration restrictionists, remains the law of the land.


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Let's not. Another point of view on U.S. v. Wong Kim Ar by P.A. Madison:

Why U.S. v. Wong Kim Ark Can Never Be Considered Settled Birthright Law
By P.A. Madison on December 10, 2006

There is a misconception floating around that suggests the ruling in U.S. v. Wong Kim Ark is the definite guiding rule of interpretation over the fourteenth amendment’s citizenship clause. Worst, some even go as far to suggest Wong Kim Ark is settled law. Nothing could be further from the truth.

Reading the majorities opinion in Kim Ark, one can’t help but wonder why so much emphasis is being placed on such obscure and irrelevant historical overviews as colonial and foreign law. With two previous established court decisions that substantially covered the same ground regarding the meaning and application of the words found in the fourteenth amendments citizenship clause, leaves one to wonder what is going on here?

Deeper into the decision, justice Horace Gray (writing for the majority) reveals exactly what the majority is up to: They are attempting to avoid discussion over the construction of the clause by the two Senators whom are most responsible for its language found in the Constitution, Jacob M. Howard and Lyman Trumbull.

It is clear the Wong Kim Ark majority recognized the fact that the only viable approach to the conclusion they sought was to somehow distant themselves from the recorded history left behind by the citizenship clause framers. Justice Gray made no attempt to hide this fact when he wrote: "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."

Justice John Paul Stevens would take issue with this inept attempt by the majority to rewrite the Constitution: "A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent."

The Wong Kim Ark court was refusing to look at both the original intent and legislative construction behind the words because they knew it would be fatal to their pre-determined intent of reversing what Congress had inserted into the US Constitution. So they set out to avoid Howard and Trumbull like the plague.

Reviewing what both Sen. Howard, who was responsible for the drafting of the citizenship clause, and Sen. Trumbull, clearly declared what was the intended effect of the language of the clause; leavening little doubt to why justice Gray desired to avoid the legislative history and previous court rulings on the effect of this language.

The first major hurdle Howard presents to the Wong Kim Ark majority is that he specifically declared the clause to be "virtue of natural law and national law," never once making any reference to common law. Perhaps this is why Gray wasted much of his commentary along common law themes. National law posed too large of a hurdle to dismiss outright - as national law only recognized citizenship by birth to those who were not subject to some other foreign power.

Howard then goes on to introduce the clause as to specifically excluding all "persons born in the United States who are foreigners, aliens," and persons "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." Only class of persons the clause can operate on is American citizens (natural law), regardless of their race - which is exactly what was intended.

To make matters even worst for the court, Howard goes on to say in May of 1868 that the "Constitution as now amended, forever withholds the right of citizenship in the case of accidental birth of a child belonging to foreign parents within the limits of the country." *

Lyman Trumbull goes on to present an insurmountable barrier of his own by declaring: "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."

Sen. Howard follows up by stating that: "the word 'jurisdiction,' as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."

Howard then goes on to declare, "Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction."

John A. Bingham, chief architect of the 14th amendments first section, considered the proposed national law on citizenship as "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..."

As mentioned earlier, the Supreme Court had already tackled the meaning of the 14th amendment's citizenship clause prior to Wong Kim Ark, and unlike the Kim Ark court, did consider the intent and meaning of the words by those who debated the language of the clause. In the Slaughterhouse cases the court noted that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."

Even the dissenting minority affirmed that the result of the citizenship clause was designed to ensure that all persons born within the United States were both citizens of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power.

The court in Elk v. Wilkins (1884) correctly determined that "subject to the jurisdiction" of the United States required "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance." Both Jacob Howard and Lyman Trumbull affirm this.

America's own naturalization laws from the very beginning never recognized children born to aliens to be anything other than aliens if the parents had not declared their allegiance to the United State - a sure sign that the framers never adopted the unconditional jus soli rule. Instead, children under national law followed the condition of their father until he had become naturalized.

When all is said and done, the majority in Wong Kim Ark reveals their true nonsensical position: "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."

Well now, there was no question at issue involving citizenship being withheld on account of the 14th amendment to American citizens, and had the court bothered to consider the history of the amendment, they would have easily discovered it is all about granting citizenship to American citizens regardless of their race. The idea of withholding citizenship upon birth to subjects of other countries within the limits of this country was, well, the desired result of declaring who is, and who isn't, a citizen of the United States.

The court in Minor vs. Happersett (1874) acknowledged that some, not all, but some authorities go as far to "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 [born to American citizens]."

It was these kind of doubts Howard desired to settle through constitutional amendment. Sen. Howard said of the amendment: "It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."

To add additional insult, the court says: "Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship." Yet, the court refused to recognize the fact the United States had done just that through its revised statutes and Constitution.

The most significant truth to come out of the entire Wong Kim Ark ruling was from chief justice Fuller himself, when he said, “the words 'subject to the jurisdiction thereof,' in the amendment, were used as synonymous with the words 'and not subject to any foreign power.’” He was absolutely correct.

Only reason the language of the fourteenth differs from the civil rights bill of 1866, which used the language "and not subject to any foreign power, excluding Indians not taxed" to restrict citizenship, is because Sen. Howard feared a State could begin taxing Indians, thereby making them eligible for citizenship. Because Indians, and other classes of foreigners whom Congress and the States desired to withhold citizenship from, owed allegiance to a foreign power (Indian tribes were considered independent nations), the fourteenth would become just as restrictive against Indians by demanding full jurisdiction on part of the United States as with any other class of foreigners.

Some thirty years after the adoption of the fourteenth amendment, the U.S. government argued Wong Kim Ark was not born subject to the jurisdiction to the United States. Obviously then, the Federal Government had no difficulty in understanding the words of its on revised statutes or the constitutional amendment.

Taken into account both the legislative and language history behind the citizenship clause – and the courts own stated objective in reaching the conclusion they did while also taking into account two prior Supreme Court holdings - leaves the Wong Kim Ark ruling as worthless as a three-dollar bill. Slaughterhouse and Elk still stand as the only controlling case law that is fully supported by the history and language behind the citizenship clause as found in the first section of the 14th amendment.

* Congress considered the Fourteenth Amendment ratified and part of the Constitution in early January of 1868.

Posted by: Horace | Mar 28, 2008 4:39:10 PM

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