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WAS THE CASE OF WONG KIM ARK DECIDED IN ERROR?
by Jim Delaney, blogging at Opinerlog
(Mar. 26, 2011) — Mindful of the litany of revisionist case law since the Constitution’s ratification, it is clear that stare decisis is a judicial principle fraught with constitutional perils. Why? One corrupted court ruling inevitably leads to another, compounding the corruption of original intent merely for the shortsighted and self-serving purpose of sanctifying precedent—a surefire judicial recipe for eventually ruling the Constitution out of existence. In this regard, Thomas Jefferson was right when he viewed with horror the growing menace of a runaway Supreme Court which increasingly valued “judicial supremacy” and subjectivism over “constitutional supremacy” and strict adherence to original intent and meaning.
And so it is with the libertine and gratuitous 1898 ruling in US v Wong Kim Ark.
On the issue of birthright citizenship, liberals breathlessly invoke this precedent-setting and fundamentally flawed ruling to justify their feeling that children born on US soil (jus soli) of illegal immigrants are and ought to be automatically entitled to US Citizenship. Wow! How very humanitarian, but how terribly misguided.
First off, let me point out that amending the constitution in order to deny automatic citizenship to children of illegal aliens is totally unnecessary. Since the 14th Amendment already very clearly stipulates that children of aliens cannot be legally granted US citizenship on the basis of birthplace alone (jus soli), perhaps at most a congressional act or a trenchant SCOTUS ruling is all that is needed, this to merely re-clarify and restate what the 14th Amendment already says and, more importantly, to expunge from our jurisprudential history this embarrassingly irresponsible Wong Kim Ark ruling once and for all.
As said, the inescapable result of judicially ignoring original intent and meaning is to pile corrupted case law atop corrupted case law. To wit, in Plyler v Doe (1967), SCOTUS, relying on the revisionist Wong Kim Ark opinion and failing to consult the actual meaning of the 14th’s “subject to the jurisdiction thereof” wording, ruled that children of illegal aliens who simply reside in a state may be considered to be within the jurisdiction of the US. In effect, Wong Kim Ark and Plyler simply and imperiously ignored original meaning, thus violating their sacred oath to uphold the Constitution. If nothing else, these rulings readily attest to the inherently corruptible nature of human beings and self-deified jurists alike.
When fervently invoking Wong Kim Ark, what the birthright adherents fail to tell you—probably because many of them are either honestly ignorant or willfully dismissive of the facts—is that this ruling, made out of whole cloth, arrogantly, incompetently and unceremoniously contradicted Elk v Wilkins (1884) which, in keeping with the 14th, ruled that birthplace alone (jus soli) was insufficient grounds to grant US Citizenship.
The contrived Wong Kim Ark ruling also blatantly ignored the earlier Supreme Court discussion of the 14th Amendment in the Slaughterhouse cases wherein the court noted that “the phrase ‘subject to the jurisdiction thereof’ was intended to exclude …children of ministers, consuls, and citizens and subjects of foreign States born within the United States.” Clearly, the Wong Kim Ark majority didn’t allow facts to get in their way. Like liberals today, they follow precedent ONLY when it suits their predispositions and prejudices.
Referring to my previous post on this subject, you may recall that the 14th’s framers were painstakingly specific about the meaning of “subject to the jurisdiction thereof”. A quick review of those particular quotes which so many on the left have either deliberately ignored or overlooked clearly shows– irrefutably–that, unlike the majority opinion in this case, the 14th’s framers understood that “subject to the jurisdiction thereof” was synonymous with “not owing allegiance to any foreign power”. The point: you cannot be subject to the jurisdiction of the United States if you are legally subject to the jurisdiction of a foreign power. Duh. But, very briefly, here again is what the 14th’s framers actually said:
First, Sec 1992 of US Revised Statutes, the same Congress which adopted the 14th Amendment confirmed that “all persons born in the United States and not subject to any foreign power…are declared to be citizens of the United States.”
Framer Sen. Trumbell noted that the goal of this statute was “to make citizens of everybody born in the US who owe allegiance to the US.” He went on to explain “all persons born in the US, and subject to the jurisdiction thereof, are citizens; this means subject to the complete jurisdiction thereof. And what do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anybody else. That is what it means.” Sen. Trumbell didn’t mince words. He didn’t say temporarily or partially within US jurisdiction, but completely within US jurisdiction. With that explanation from a principal framer of the 14th, how then can the most ardent birthright citizenship advocate reasonably and clear-headedly trumpet the merits and judicial reliability of Wong Kim Ark? In truth, the objective and honest among them can’t without at least a little embarrassment. But, sadly, that won’t stop the others from mindlessly railing against birthright citizenship opponents.
Concurring with Trumbell, Sen. Jacob Howard asserted 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 US, coextensive in all respects with the constitutional power of the US, whether exercised by Congress, 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 US.” Obviously, he wasn’t talking about a temporary visitor or illegal entrant with foreign ties.
In 1866, Cong. James Wilson of the House Judiciary Committee asserted “we must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of a foreign government.”
Framer John Bingham said that this statute meant “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 the Constitution itself, a natural-born citizen.” (Finally, a definition of “natural-born citizen”.) Clearly, then, the jurisdictional status of the child’s parents (jus sanguinis) was every bit as important as the birthplace of the child in determining a child’s citizenship. Thus, US citizenship is predicated on BOTH birthplace (jus soli) and parentage (jus sanguinis). Of course, that’s clear, but “they” just don’t want to hear of it.
And this thought: if one’s allegiance to the US can be properly determined by birth alone in the US (jus soli), then why do we require legal immigrants to renounce their allegiance to their motherlands for purposes of naturalization? In short, folks, the Wong Kim Ark ruling is not only baffling, it makes absolutely no sense at all!
Also, in the Wong Kim Ark ruling, legally indefensible though it is, shouldn’t it be of more than passing interest to note some mysterious wording in that ruling as well?
The ruling: “A child born in the United States, of parent[s] of Chinese descent, who, at the time of of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.”
Huh? Talk about gratuitous and enigmatic rulings: like, how many illegal aliens over the years had a permanent domicile/residence in the US while carrying on business here as well when they illegally entered the US? Precious few, I suspect. So, wouldn’t this contrived wording mean that millions of children could not have been automatically granted citizenship simply because their parents did not have a permanent domicile and were not conducting business in the US? Just asking. Frankly, despite a rather exhaustive search I can find no scholarly explanation for this conspicuously incongruent and superfluous wording. Upon what previous ruling did the court draw those words? Certainly not from the 14th’s framers, and most certainly not from the Constitution’s founders! That alone should give our erudite lefty friends at least a modicum of intellectual pause. But, probably not. They apply the law to fit their agendas, and casually ignore that which doesn’t advance their political game plan. Heaven forbid should they stoop to seeking original constitutional intent and meaning.
Another point: the court’s majority justified their ruling on the basis of English common law. What?!?!? US citizenship law had absolutely broken with English common law tradition after independence (which included the tortured English doctrine of “perpetual allegiance” over which America clashed with Britain in the War of 1812). Sen. Howard clearly explained that the citizenship clause was based upon “natural law and national law”, never in any way alluding to English common law. (Note: from all I have read, E. Vattel’s concept of a child inheriting his/her father’s citizenship by descent (jus sanguinis), regardless of birthplace, manifestly dominated US legal history after independence, and it was E. Vattel’s Law of Nations which so profoundly influenced our founders and the 14th’s framers.)
Also, if anyone takes the time to read the dissenting opinions in this grotesquely revisionist ruling, one would be regaled with thoughtful and scholarly constitutional analysis. But, that’s not what the left wants. It wants a solid and burgeoning voter bloc, this to keep their sorry lot in power. But, I do have to ask what possessed the majority in Wong Kim Ark to rule as they did. It certainly wasn’t their strong sense of fidelity to the Constitution. Compassion or snuff?
So, in summary, the legality of birthright citizenship is a breathtakingly obvious hoax perpetrated by judicial revisionists and encouraged by stridently vocal ideologically-driven birthright citizenship adherents. At this point, all we can reasonably hope for is a sober and timely SCOTUS review which, hopefully, will do the unthinkable, that being actually upholding the rule of law. Sure hope that’s not too much to ask. But, I’m not holding my breath…
“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.” Justice John Paul Stevens re the Wong Kim Ark ruling.