Justice Gray’s Wong Kim Ark Logic

Natural Born Citizen  Leo Donofrio Esq.

Respecting the Constitution?
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And now we come to a truly amazing failure on the part of Justice Gray’s opinion in WKA.  In the entire 55 page opinion, he traces the history of allegiance and citizenship all the way back to the 14th century, but, unbelievable as it may appear, Justice Gray failed to mention the specific article of law which actually determined the entire case. He did mention the treaty to which this article of law belongs, but he never quoted the provision which would have disposed of the issue on its face.

Having mentioned the treaty in the opinion, however, it is possible (and necessary) to limit the holding of WKA to this specific provision.  Should the current Supreme Court wish to correct the mess Gray has left for them, the Court can avoid completely overturning the holding in WKA by strictly limiting it to those who were covered under the Burlingame-Seward Treaty.

I never understood how Justice Gray, in Elk v. Wilkins, could define “subject to the jurisdiction of the United States” as being synonymous with “owing no allegiance to any alien power“, and then fail to apply that logic to the parents of WKA, while the parents were observed by Gray to have been subjects of the Chinese Emperor when their son was born.  How did Gray determine that Ark owed no allegiance to China at birth?  Justice Field’s dissent zeroes in on this:

“If the act of 1866 had not contained the words ‘and not subject to any foreign power,’ the children neither of public ministers nor of aliens in territory in hostile occupation would have been included within its terms on any proper construction, for their birth would not have subjected them to ties of allegiance, whether local and temporary, or general and permanent.

There was no necessity as to them for the insertion of the words, although they were embraced by them.

But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanenta llegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would.

And it was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted.”  U.S. v. Wong Kim Ark, 169 U.S. 649, 721.

Generally, it is true that aliens owe only a local and temporary allegiance, but this was not the case as to the parents of Wong Kim Ark.  Ark was born in 1873, when the Burlingame-Seward Treaty with China was in effect.  Article 5 of that treaty states:

ARTICLE V.  The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from the one country to the other, for purposes of curiosity, of trade, or as permanent residents…

Article VI of the treaty provides that, “[N]othing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States,” while Article V recognizes that subjects of China, when they change their home to the United States, and become permanent residents here, may also change their allegiance.

Note that the treaty does not say that they may gain a second allegiance, or a dual allegiance.  The Treaty recognizes their right to change their “home and allegiance”.  This was a completely unique provision, the necessity of which was related to the law in China that called for the beheading of subjects who tried to throw off their allegiance:

“But of all the treaties of the year, the most remarkable in its declarations respecting expatriation was that with China, commonly known as the Burlingame treaty.  According to the terms of her penal code, China had apparently treated the renunciation of her allegiance as a capital offence.  By article 5 of the Burlingame treaty, it was declared in the very substance of the act of Congress:  ’The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance.’  This declaration was absolutely unqualified, going in this respect beyond the stipulations of any other treaty.”
The Nation, December 14, 1893, pg. 444.  (Emphasis added.)

Now compare that passage to the following from Justice Gray in WKA:

“Chinese persons, born out of the United States, remaining subjects of the emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens residing in the United States.”  U.S. v. Wong Kim Ark, 169 u.S. 649, 694.  (Emphasis added.)

But this is not necessarily true with regard to Chinese subjects who quit China for the U.S. while the Burlingame treaty was in force.  According to the Burlingame treaty, Chinese subjects who were permanent residents here were absolved of owing allegiance to China.  The treaty recognized their right to permanently change their home and allegiance.

Title 8, § 1101, (a)(22), of the United States Code, states:

(22) The term “national of the United States” means

(A) a citizen of the United States, or

(B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

This provision of the code was not in effect when Ark’s parents were born, but it does illustrate that there is a unique relationship recognized by the government which adheres to persons who, though not citizens, have a permanent allegiance to the United States.

Additionally, Title 8, § 1101, (a)(3), recognizes that such persons are not aliens:

(3) The term “alien” means any person not a citizen or national of the United States.

Despite Justice Gray’s erroneous assertion that Ark’s parents were subject to the jurisdiction thereof, “in the same sense as all other aliens residing in the United States”, the truth is that they were completely and permanently subject to the jurisdiction of the U.S., because the treaty allowed them to permanently change their home and allegiance.  The ties that binded them to China had been severed by the treaty, and this distinguished their status from all other foreign subjects who were domiciled here.

Justice Gray’s career on the bench is characterized by his use of the historical method.  When we consider his failure to cite Article V, his misquotes concerning McCreery v. Somerville, and his flip-flopping from Elk v. Wilkins to Won Kim Ark, the emerging picture is very disturbing.  This blister, if left to fester, will infect the Supreme Court with an incurable disease.

Treaties are the law of the land, and this one recognized a permanent change of allegiance upon a permanent change of residence.  Justice Gray could have cut 50 pages from his opinion, and avoided construction of the 14th Amendment, by focusing upon the extraordinary treaty between the two countries, wherein China released its subjects from owing any allegiance at all to their mother country.

It’s beyond reason to imagine that Justice Gray simply overlooked Article V.  And this is where our analysis must be somewhat presumptuous, for we must consider motive.  Had the Court simply recognized that Ark’s case was unique due to the extraordinary powers of the treaty, the case would have failed to sanitize the citizenship of the man who appointed Justice Gray to the bench.  But since Gray failed to exercise judicial restraint, the holding in WKA provided for the citizenship of Chester Arthur.

Leo Donofrio, Esq.

[Hat tip to Cindy Simpson re “The Nation” article.]
January 12, 2012 at 7:27 AM
A.R. Nash says:

You stated in response to the Slaughterhouse quote: “According to this statement by the Court, those born in the country of alien parents are not citizens of the U.S.”
The statement by the court regarding those who are subject to U.S. jurisdiction, which excluded foreign citizens, did not take into account foreign citizens/subjects who were immigrants, as in permanent legal residents of the U.S. rather that temporary visitors. The legal definitions of foreigners and aliens divides them into two very distinct categories, namely; Immigrant Aliens (unnaturalized), and Non-immigrant aliens or Foreigners. Immigrant aliens are adjudged to be subject to U.S. jurisdiction. Therefore their U.S. born children are deemed to be U.S. citizens even without the naturalization of the parents. Their citizenship is statutory automatic citizenship, but not natural citizenship.

Slaughterhouse quote: “The 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.” To appears that the court in this statement made no distinction between immigrant aliens and non-immigrant aliens, so it can be asserted that the court in Wong chose to proclaim immigrant alien children to be citizens without any historical legal foundation, -though the State Dept. up until then may have done so on its own depending on who was in the White House.

Gray wrote in Wong: “…it can hardly be doubted that the words of that act, ‘not subject to any foreign power,’ were not intended to exclude any children born in this country from the citizenship…” While that’s seemingly in contradiction to his earlier stance in Elk v Wilkins, that may not be the case if you consider the import of the words “were not intended to exclude”. If you assume that he knew full well that by not distinguishing between children born to alien visitors and children born to alien immigrants that the wording would indicate a blanket denial of citizenship to ALL children born of aliens, then you can say that he did an about face. But if in his mind he failed to grasp the over-simplification of the exclusionary wording and how all-inclusive it was, then it could be assumed that at the time of the Elk decision and opinion, that he ignorantly presumed that the words wouldn’t be construed to include children of immigrants. There’s no way to know if he was just linguistically stupid in not grasping the full meaning of the words he quoted from Slaughterhouse or if he did and later pretended that that meaning was stupid for including immigrant children. Either way there’s a mark against either his intellectual competence or his integrity.
A.R. Nash
January 12, 2012 at 9:10 AM

Civil Rights Act 1866 “‘All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States”
Nearly every word in that sentence is significant, including “are hereby declared to be…” The use of the word “are” was a mistake since it referred only to those alive when it was written, and not to future cases of the yet unborn. Also, the use of the phrase “declared to be” clearly indicates that such citizenship is by act of Congress and is therefore a form of naturalization, and not natural citizenship.
The 14th Amendment didn’t repeat such wording and resulted in a very different meaning, including the change to “subject to the jurisdiction thereof”. That demonstrates that it was U.S. policy to not consider whether or not any foreign nation feels it has jurisdiction over children born in the U.S. to their subjects/ citizens. Instead its only consideration is whether of not it views children born to aliens to be subject to its own jurisdiction. Wong resulted in the position that U.S. policy is that U.S. born children of aliens are subject through their parents and all immigrants are subject to U.S. jurisdiction, though that still excludes foreign visitors of whatever type.

This section contains a logic error: “…”in the same sense as all other aliens residing in the United States”, the truth is that they were completely and *permanently*(???) subject to the jurisdiction of the U.S., because the treaty *ALLOWED* them to permanently change their home and allegiance. The ties that bound them to China *HAD BEEN SEVERED* by the treaty,”
No ties were severed by one being allowed to sever ties. It would have taken a pro-active action to sever those ties in a recognized manner, such as taking an oath of allegiance to the United States before a magistrate which included renouncing allegiance to the Emperor.
Also, this statement is illogical: “China released its subjects from owing any allegiance at all to their mother country.” Subjects weren’t released from owing allegiance unless they personally choose to be released. It wasn’t forced upon them by the treaty. None of its statements proclaim that permanent residence is a de facto renunciation of their allegiance to their emperor. The treaty merely allows them to make that choice because it is their human right. It’s not mandatory. Permanent allegiance need not accompany permanent residence. It’s a choice. But permanent residence does involve subjection to the jurisdiction of the national government. It is that jurisdiction that was deemed the basis of granting U.S. citizenship to children of aliens. Such aliens are not U.S. nationals because that requires being born within a territory over which the U.S. exercises sovereignty, such as Guam, American Samoa, U.S. Virgin Islands.

“But since Gray failed to exercise judicial restraint, the holding in WKA provided for the citizenship of Chester Arthur.” Your characterization of the Sino-American treaty indicates that you assume that no other country allowed its emigrated citizens to switch allegiance after adopting permanent U.S. residency, but that would be an assumption without foundation. It would seem that the treaty would be similar to treaties the U.S. would have signed with every other monarchical government if possible. Why in the world would China be the only one to agree to it? Every other government would have to have been opposed to a basic human right. I can’t believe they all were.
A.R. Nash
January 12, 2012 at 9:31 AM

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