Birthright Citizenship and Judicial Incompetence

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.

29 Responses to "Birthright Citizenship and Judicial Incompetence"

  1. Daniel Cutulla   Monday, March 28, 2011 at 7:44 AM

    > Natural Rights that are endowed by the Laws of Nature

    I think that “Laws of Nature” is a misleading term as it is obviously supposed to include both undisputable observable facts of nature (such as the laws of physics) and those who, ultimately, are a fabrication of man (“political rights” do not exist among animals, so without man defining them, they make no sense).
    And as to the latter, there have always been different interpretations, depending on the specific world-view of the people referring to them (even amoung devout Christians, there will be some disagreement on what exactly “God-given” rights are).

    > Declaration of Independence and Vattel Law of Nations

    The Declaration of Independence was written by men back in the time. To assume that because some male people several centuries ago limited their observation to “men” (as in “male people”), this is an infallible statement of what “God-given rights” are is short-sighted.
    Especially since the writers of the DoI were probably not the proper authorities on the subject. Had they written “We hold it to be self-evident that Earth is flat”, it wouldn’t prove Earth is flat nor make a spherical Earth flat.
    So this is, at best, an argument by authority (“because they said so, it is so”), a logical fallacy.

  2. Daniel Cutulla   Monday, March 28, 2011 at 7:36 AM

    > Supreme Court case of Perkins v. Elg shows that a child does not lose his/her US citizenship on account of actions taken by a parent.

    I am aware of that; I was rather questioning the point of “a natural born *citizen* cannot be disenfranchised by law”, regardless of how citizenship was lost/renounced.

    > In my opinion, he would still be an ex-citizen that was natural born.

    Exactly, MichaelN! The next interesting question would then be if one would again be a “natural born citizen” if one, as a former natural born citizen, naturalizes again.

    I would agree with you that the founders considered, first and foremost, if not exclusively, the child’s allegiance at birth.
    So “natural born citizen” would be a status one acquires at birth (and only at birth). While citizenship may be lost, “natural born” cannot be lost as it is intrinsically tied to the status at birth. Consequently, a natural born citizen who loses, then re-acquires his US citizenship would still be eligible for US presidency since he’d be a citizen (by naturalization) who was (and still is) natural born.

    So you see I agree with your point, I just wasn’t sure we were on the same page before. :)

  3. MichaelN   Monday, March 28, 2011 at 2:49 AM

    In my opinion, he would still be an ex-citizen that was natural born.

  4. Texoma   Monday, March 28, 2011 at 12:25 AM

    The laws of nature include the law of gravity. During the Apollo missions to the Moon, from lift off to splash down, the gravitational pull of the Earth and the Moon were always present. If gravity had been under our control, we would not have needed massive rockets to overcome it.

  5. Texoma   Sunday, March 27, 2011 at 11:02 PM

    The 1939 Supreme Court case of Perkins v. Elg shows that a child does not lose his/her US citizenship on account of actions taken by a parent. Elg was born in NY to US naturalized citizen parents who took her back to Sweden. As a young woman she came back to the US claim her US citizenship. She was denied initially, but then was declared not only citizen by the Supreme Court, but also a natural born citizen.

    Obama’s situation has similarities and differences to the Elg story. They are similar in that Obama would not have lost his US citizenship (assuming he had US citizenship before going to Indonesia) as a child in Indonesia. They are different in that Obama was not a natural born citizen on account of his foreign citizen father.

    Now, here is an interesting scenario: What if Miss Elg had decided to run for President or VP? Would she, a natural born citizen, and being at least 35 years of age, and after living in the US for 14 years, have been eligible? Would her years of Swedish citizenship and allegiance to a foreign power as a child disqualify her, given that she never lost her US citizenship during those childhood years?

  6. Jedi Pauly   Sunday, March 27, 2011 at 2:17 PM

    SOVEREIGNTY and sovereign political rights are Natural Rights that are endowed by the Laws of Nature and secured by MALES i.e. your father. (Declaration of Independence and Vattel Law of Nations.)

    I have always said that “natural born Citizen” is not a term defined by English Common Law. You obviously have not read any of my work or properly comprehended what I have written.

  7. Jedi Pauly   Sunday, March 27, 2011 at 2:05 PM

    Yeah Right, the Laws of Nature are beyond human control. This is why humans never when to the moon or built atomic weapons and why no human is capable of civilized behavior. I guess old Vattel was just an idiot then when he said “by the laws of nature alone children follow the conditions of their fathers” etc. It is funny that you ignore the rest of Vattel and the Declaration of Independence that clearly contradicts you and the other Unity Theorists but when Vattel, who was the foremost authority on NATURAL LAW says “children born in the country to citizen parents” then suddenly he has all kinds of credibility because it suits your beliefs. You have no credibility Mr. Laity.

  8. Dan Cutulla   Sunday, March 27, 2011 at 11:24 AM

    > A ‘natural born Citizen’ cannot be made nor disenfranchised by laws

    So, according to your opinion, if, arguendo, Obama/Soetoro was a natural born citizen but later lost his citizenship (e.g. as a result of adoption by Lolo Soetoro), he would still be a natural born citizen although he isn’t even a citizen anymore?

  9. Dan Cutulla   Sunday, March 27, 2011 at 11:21 AM

    > Every person born in the US is NOT a “Natural-Born Citizen”.

    You’ve got your sentence structure mixed up here. You probably meant to say “Not every person born in the US is a natural born citizen”. What you said means no-one born in the US is an NBC (to which I might ask “then who is an NBC, someone born outside the US?”).

  10. Robert Laity   Sunday, March 27, 2011 at 5:03 AM

    Jedi, The Laws of Nature are such that their observance is beyond human controil or Laws. One cannot legislate the observance of the Laws of Nature, anymore then one can change them.

  11. Robert Laity   Sunday, March 27, 2011 at 4:57 AM

    God does not belong to Nature (“Nature’s God”). Nature belongs to God.
    There are only two jobs in America in which it is required that one be purely American.
    the POTUS and his V.P.. That is NOT a hard requirement to meet and it IS the Law.

    A “natural-Born American” is one born ON U.S. Soil (Not a US Military Base,which is NOT US Soil and NOT in a foreign nation) AND One whose parents (with an “s”) are BOTH
    Americans.

    It does not take a Rocket Scientist to understand that very simple requirement.,one that Obama and McCain patently do NOT meet.

  12. Robert Laity   Sunday, March 27, 2011 at 4:43 AM

    Wilson was Wrong. Every person born in the US is NOT a “Natural-Born Citizen”.
    Bingham was right. One must have both Jus Soli and 100% Jus sanguinis to be a
    “Natural-Born Citizen”

  13. Texoma   Saturday, March 26, 2011 at 11:57 PM

    Very well said, Birdy. Using a term from the Declaration of Independence, the citizenship of a natural born citizen is “self-evident”. If you are born in the US to US citizen parents, you are obviously and naturally a US citizen — you are a natural born citizen.

  14. Texoma   Saturday, March 26, 2011 at 11:51 PM

    Excellent point about Justice Gray, who was appointed to the Supreme Court by Chester Arthur. Arthur did tell lies about his father and his heritage, but I am not aware that he specifically lied about the date of his father’s naturalization (which occured when Chester was 14 years old). From what I understand, this information (the father’s naturalization date) was discovered only some 20 years ago.

  15. Texoma   Saturday, March 26, 2011 at 11:42 PM

    A comparison between alien friends in England and the US shows how the children of those in England were given subjecthood at birth, while children of those in the US should not be given citizenship at birth.

    Alien friends in England (also known as aliens in amity) were expected to take, or at least comply with, England’s Oath of Allegiance, which required that they suspend their allegiance to their home countries while they were in England. Hence, they owed the English King a local allegiance which was strong enough to give subjecthood to their children born on English soil.

    Aliens friends in the US, such as Wong Kim Ark’s parents who were in the US legally, do not take any oath of allegiance to the US, and they do not suspend their allegiance to their home countries. Hence, they do not owe allegiance to the US, and citizenship should not be given to their children born on US soil.

  16. Texoma   Saturday, March 26, 2011 at 10:53 PM

    No. Wong Kim Ark, born in the US to non-citizen parents, was declared to be a citizen, not a natural born citizen. It is important to note that the Ark case quoted from the 1874 Supreme Court case of Minor v. Happersett, which stated that a natural born citizen was a person born in the country to citizen parents (using language very similiar to that of Vattel):

    “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.”

  17. MichaelN   Saturday, March 26, 2011 at 10:23 PM

    Jedi Pauly says:
    Saturday, March 26, 2011 at 4:04 PM
    “There is nothing at all wrong with Wong Kim Ark. The analysis of Wong in this article is way off. The soil jurisdiction is governed solely by the Positive Law which falls under Congresses authority and they have absolute power to grant the privilege of citizenship to anyone born on the soil who voluntarily subjects themselves to the jurisdiction of the U.S. The courts are entirely empowered to use the term from English Common Law “natural born citizen” and call those that are born on the soil, regardless of parents, to be “natural born citizens” because the term “natural born citizen” is a legal term that means one who is born “subject” to the jurisdiction of the Positive Law authority of the State or King as this term was developed under thousands of years of monarchic rule going back even before the history of England.”
    ————————————————————————

    Jedi Paul.

    For starters, children don’t voluntarily subject themselves to the jurisdiction of the law.

    Secondly, the term ‘natural born Citizen’ is NOT found in English common law.

    Thirdly, those per English common law, who are called ‘natural born SUBJECTS’ are those who are qualified by TWO essential qualities, i.e. nature/procreation and birthright.

    Fourthly, to be a born subject of the English sovereign, the parent must be a subject, even aliens with local ligeance (not to be confused with subject to jurisdiction of the municipal laws) are subjects.

    According to Lord Coke (Calvin’s case) – in the absence of a parent father who is a subject of the king by natural ligeance, albeit local ligeance of an alien, then a child of that alien cannot be a born subject.

    Horace Gray & his cronies in WKA case, cherry-picked ‘alien parent = natural born subject’ and failed (either by over-sight or deliberately) to speak of these crucial points made by Lord Coke in the benchmark English common law case known as Calvin’s case.

    i.e. the alien was a subject of the king, to be able to make a natural born subject.

    Horace Gray failed to mention that in WKA.

    Neveretheless, the point you apparently fail to see, is that a USC Article II ‘natural born Citizen’ is a sovereign Citizen, born of sovereign Citizens & that is how the monarchical principle of royal blood-line was perpetuated, with NOTHING to do with ANY municipal law.

    A ‘natural born Citizen’ cannot be made nor disenfranchised by laws, it is a state of being, due by nature/procreation and birthright.

    A USC Article II ‘natural born Citizen’ is a sovereign & is a subject of NO ONE.

  18. jc   Saturday, March 26, 2011 at 8:34 PM

    Posted on several blogs;

    Immigration and Citizenship: Process and Policy fourth edition
    Under Jus Soli, the following is written “The Supreme Court’s first holding on the subject suggested that the court would give a restrictive reading to the phrase, potentially disqualifying significant number of persons born within the physical boundaries of the nation. In Elk v. Wilkins 112 U.S. 94, 5 S.CT. 41, 28 L.ED. 643 (1884), the court ruled that native Indians were not U.S. citizens, even if they later severed their ties with their tribes. The words “subject to the jurisdiction thereof,” the court held, mean “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.” Most Indians could not meet the test. “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian Tribes, (an alien through dependent power,) although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’*** then the children of subjects of any foreign government born within the domain of that government ***. Id. at 102.
    It continues that Congress eventually passed legislation with the ‘Allotment Act of 1887, that conferred citizenship on many Indians.

    How come the Supreme Court held that sole and complete (100%) jurisdiction was required for citizenship and someone born of a foreign father with no proof of soil birth has the ability to deny anyone their right to question Obama’s eligibility?

    Sounds like a racket and scam.

  19. A pen   Saturday, March 26, 2011 at 8:27 PM

    Reading Federalist 47-48-49 one can safely say that despite every effort to confound government from avoiding what is written on paper there is no perfect method. It will in the end require the people to come under such danger that they forget about their personal defects of opinion and wisely unite to save themselves from despotism and re-establish government with new restrictions designed to repair the deficiency that led to the failure. Where any issue has come up from the people that the government might find itself unable to respond to the people favorably they simply ignore it entirely. As of late they even assail the public with unusual names and ridicule. That level of audacity indicates contempt only a despot displays. We need to make some demands from our hires. http://standupamericaus.com/declaration-of-restoration—constitutional-republic-for-the-united-states-of-america

  20. Jedi Pauly   Saturday, March 26, 2011 at 7:09 PM

    Actually, the government is bound by the First Amendment’s Establishment Clause to honor and respect the Laws of Nature because the Laws of Nature are ascribed to a creator God and that links Article II to religious freedom that the government is bound to protect not reject. This is also Theresa Cao’s proper legal defense for her outburst in Congress.

  21. Leo's "Main Researcher"   Saturday, March 26, 2011 at 5:01 PM

    Excellent article Jim!

    I thought I’d throw this in the mix for you.

    Here’s what Associate Justice Hugo Black (a former U.S. Senator from Alabama) had to say about Rep. Bingham and Sen. Howard in regard to the Fourteenth Amendment;

    ““Instead of relying on this kind of negative pregnant, my legislative experience has convinced me that it is far wiser to rely on what was said, and most importantly, said by the men who actually sponsored the Amendment in the Congress. I know from my years in the United States Senate that it is to men like Congressman Bingham, who steered the Amendment through the House, and Senator Howard, who introduced it in the Senate, that members of Congress look when they seek the real meaning of what is being offered. And they vote for or against a bill based on what the sponsors of that bill and those who oppose it tell them it means.”
    Concurring opinion of Justice Black, -Duncan v. Louisiana, 391 US 145 – Supreme Court (1968)

  22. Birdy   Saturday, March 26, 2011 at 5:01 PM

    I agree with this, although it is a fine point that can be easily missed.

    The Declaration of Independence speaks about all men being endowed by their creator with certain unalienable rights. There are some things that don’t have to be written into law or defined in a constitution. One of these is the natural path to citizenship of a State (by State, I mean an independent sovereign entity like a country, nation, or republic). A child born within the territorial boundary of a State to parents who are both citizens of that State is a natural born citizen. This is what Article II Section 1 of the US Constitution is referring to when it uses the term “natural born Citizenship.”

    This cannot be changed by law or by the Constitution. It cannot be defined or redefined by a court. It is natural and comes from the law of nature and nature’s God. A State could choose to reject natural law, but the United States has decided accept natural law, at least this part of natural law, by specifically referring to it in A 2 S1.

  23. Jedi Pauly   Saturday, March 26, 2011 at 4:04 PM

    There is nothing at all wrong with Wong Kim Ark. The analysis of Wong in this article is way off. The soil jurisdiction is governed solely by the Positive Law which falls under Congresses authority and they have absolute power to grant the privilege of citizenship to anyone born on the soil who voluntarily subjects themselves to the jurisdiction of the U.S. The courts are entirely empowered to use the term from English Common Law “natural born citizen” and call those that are born on the soil, regardless of parents, to be “natural born citizens” because the term “natural born citizen” is a legal term that means one who is born “subject” to the jurisdiction of the Positive Law authority of the State or King as this term was developed under thousands of years of monarchic rule going back even before the history of England. The way it is used in Wong simply implies that “natural born citizen” means the same thing as a naturalized citizen, as described in the 14 Amendment, as in one who is “born or naturalized in the United States”. Born in the United States or Naturalized in the United States both mean exactly the same thing.

    It has ABSOLUTELY NOTHING AT ALL TO DO WITH ARTICLE II “natural born Citizen”
    The term “citizen” in U.S. case law and in the 14th Amendment is not the same as “Citizen” in the rest of the Constitution and Article II and there are several Supreme Court cases that clearly point this out and go on to indicate that the political rights of “citizens” is not the same as the political rights of “Citizens”.

    In Article II “natural born Citizen” is not a legal term to be defined by statutes or judges opinions or stare decisis. It is not even a legal term. It is a descriptive adjective “natural born” that is describing a special noun “Citizen” which is referring to a special political class of citizens who are SOVEREIGN. The term “natural born Citizen” in Article II is not meant to be defined in the Constitution which is an expression of Positive Law only and not Natural Law. Article II “natural born Citizen” is defined SOLELY BY THE LAWS OF NATURE or NATURAL LAW and is only declared in the Positive Law at Article II in order to protect the natural political rights of native Sovereign citizens. The adjective phrase “natural born” is meant to convey that we are talking about natural persons who are created by the Laws of Nature who come into existence as Sovereign political entities as citizens of the United States and not sovereign political entities of some other country. One need only reference the relevant sections of Vattel, which IS NOT the first sentence of section 212, and you will discover the self-evident fact of nature and reality that by the Laws of Nature alone the membership in society of children offspring and the natural political sovereign rights are secured solely by a citizen FATHER. That is all that Article II requires and is describing.

  24. Linda   Saturday, March 26, 2011 at 2:41 PM

    By 1898 Justice Gray, who also wrote the opinion in Elk, had gained the knowledge of the fraud Chester Arthur used to gain access to the ballot as VP candidate by hiding his docs & lying about the date of his father’s naturalization. This was also a time when religious morality was still a high point. Most schools were still being run by the churches and the bible was still a mainstay in most every classroom. Therefore, Gray had to come up with an opinion to sanitize Arthur’s indescretions & Gray’s own appointment to the court and keep them from the scrutiny of the moral public at large. After WKA, the court went down hill & Gray went on to directly gain financially from opinions of the court. So basically, Gray’s WKA opinon overturned his own ruling in Elk that held the 14th to be constitutional in the holding of the case and with that one opinion, Gray forever lost his moral compass that is the guide to moral jurisprudence.

  25. GMScott   Saturday, March 26, 2011 at 1:56 PM

    THANK YOU!!

    SO glad to hear SOMEONE saying the obvious – that there is NO Need for another Constitutional Amendment to delcare what is already clearly stated.

    I am not an attorney or Constitutional scholar, but I do read and understand English and can follow a thought.

    I believe that the Constitution was framed and worded for the common-man’s, like me, comprehension.

  26. California Birther/Dualer/Doubter   Saturday, March 26, 2011 at 1:18 PM

    Great work … this is a keeper!

  27. Ken   Saturday, March 26, 2011 at 11:09 AM

    There is enough ambiguity in the Wong Kim Ark decision to allow the Supreme Court to clarify with out over turning. If Wong Kim Ark was overturned or clarified could it affect President Obama since his dad was a Kenyan?

  28. Leo Patrick Haffey   Saturday, March 26, 2011 at 10:15 AM

    Excellent Article. Thanks.

    When I first started practicing law, I was drafting a brief for the Senior Partner in the law firm at which I was working. I was having a hard time finding a case to support the Senior Partner’s legal argument. When I told him of my difficulty, he responded, “Turn the Page.”

    In other words, if you search long enough you can almost always find a legal precedent to support your position and that is a major problem with stare decisis. No doubt, President Jefferson is turning over in his grave at the thought that sharia “law” is now considered in some courts in America.

    Be that as it may be, BO’s lawyers have yet to find a legal precedent that refutes the following legal arguments:

    http://www.thepostemail.com/2010/04/08/our-privilege-our-right-and-our-duty/

    http://thesteadydrip.blogspot.com/2010/07/taking-aka-obama-directly-before-scotus.html

  29. MichaelN   Saturday, March 26, 2011 at 10:13 AM

    Excellent article, gets the message across clearly.

    Thank you Jim.

    Something else that might interest you, are some statements made by Lord Coke in his report of Calvin’s case (as you should be aware, this is the benchmark English common law case from which justice Horace Gray got his ‘definition’ that he used in the Wong Kim Ark case)

    Two essential qualities to make a natural born, i.e. nature and birthright. (Calvin was adjudged a natural born subject)

    Quoting Lord Coke:
    “There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due by nature and birthright’

    Gray failed to mention the above & also failed to mention that the alien parent was a subject (aka in US as a citizen – using the common practice of the judiciaries interchangeability of the two) by way of a natural ligeance, owing a local ligeance.

    It was very easy to say children of aliens are natural born, but this was only a half-truth.

    The aliens referred to, were subjects of England, for their children to be natural born.

    “Concerning the local obedience, it is observable, that as there is a local protection on the King’s part, so there is a local ligeance of the subject’s part. And this appeareth in 4 Mar. Br. 32. and 3 and 4 Ph. and Mar. Dyer 144. Sherley a Frenchman, being in amity with the King, came into England, and joyned with divers subjects of this realm in treason against the Kingand Queen, and the indictment concluded contra ligeant’ suae debitum;51 for he owed to the King a local obedience, that is, so long as he was within the King’s protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject:”

    Gray also failed to mention that without the alien parent father being a subject, then the child, even if born in the land, was NOT a subject

    “that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject”

    Here again, Coke makes reference to the two essential qualities that make a natural born.

    “Calvin the Plaintiff naturalized by procreation and birth right”

    The revisionists even revised the English common law to suit their agenda & everyone followed the lead without really looking into it.

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