Thursday, September 16, 2010

The Great Anchor Baby Citizenship Fiasco

George A. Reimann

Those believing that being born in the U.S.A. automatically confers U.S. citizenship often cite the U.S. v. Wong Kim Ark Supreme Court decision, 169 U.S. 649 (1898),[1] to justify this belief. This idea is a total falsehood perpetuated by the Congress and by the MSM. Hopefully readers will forgive my temerity in exposing the mendacity of a Supreme Court justice, often cited as a “legal historian,” in arriving at his opinion in the above-cited case.

At issue is the meaning of the citizenship clause in Section 1 of Amendment XIV, as follows:

All persons born or naturalized in the United States and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside.

The question was whether the progeny of non-citizen Chinese immigrants became a U.S. citizen if born in the U.S.A. Justice Gray decided such a child “becomes at the time of his birth a citizen of the United States” regardless of the parents’ citizenship, based on English common law.

The opinion was rendered by Justice Horace Gray, who had the reputation of being a meticulous researcher. As evidence of his penchant for research he used nearly 20 pages to cite court decisions, mostly on English common law, for the past 3 centuries. As a legal historian Justice Gray seemed unaware that we fought the War for Independence to extricate ourselves from under the burden of English common law, based on arbitrary medieval English feudalism, as it was applied to the colonies. While the colonies suffered patiently under this burden they finally reached the point where it became necessary to “alter their former Systems of Government.” The Declaration of Independence listed a “History of repeated Injuries and Usurpations” to justify this action. Given a choice the Founders preferred natural law to common law. Further, any ambiguity regarding the applicability of English common law to birthright U.S. citizenship should have been removed by ratification of the 14th Amendment[2] some 30 years before Gray wrote his opinion, rendering his “meticulous research” unworthy of consideration.

When Justice Gray confronted the 14th Amendment directly in his opinion he cited the record of the 39th Congress in the Congressional Globe[3], to justify it but selected only parts of the discussions. Apparently he was so consumed by his attachment to medieval English common law he was unable to discern the intended meaning of “subject to the jurisdiction thereof,” even though he referred to this phrase repeatedly. Gray insisted that “Amend. art. 14. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.” Gray cited numerous pre-1868 cases that became irrelevant when the 14th Amendment was ratified.

The dispute should have been easily resolved by referring to the debates in the 39th Congress as printed in The Congressional Globe (now The Congressional Record). Even a Congressperson could do it. Senator Jacob Howard (MI) wrote the 14th’s Citizenship Clause (note references to natural law, national law) and introduced it into the Senate, stating:[4]

[T]his amendment which I have offered is simply declaratory of what I regard as the law of the land already that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

In response to a question from Sen. Fessenden regarding coverage of the citizenship clause, Sen. Trumbull, Chairman of the Judiciary Committee, replied:[5] 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.” Sen. Trumbull continues: What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means.

Sen. Trumbull’s description of the citizenship clause was so uncomplicatedly clear that the meaning should be immune to mischaracterization. That phrase Gray referred to repeatedly is defined, right there in plain sight. Therefore, one could easily conclude that Justice Gray, the “meticulous researcher,” was deliberately misleading.

The citizenship clause means that aliens, legal or otherwise, will be under only the jurisdiction of local ordinances and laws but they owe the United States no allegiance and are not subject to the jurisdiction of the United States. They cannot vote, be summoned for jury duty, be drafted into the military, etc. To become a naturalized citizen one must swear allegiance to the United States and after having done so full citizenship is obtained. Then the citizen’s progeny also become citizens.

The UK has no written constitution as a single controlling document but relies on tradition and precedent, various documents (some ancient), statutes, etc., for guidance. Together these comprise an “understanding” that is supposed to regulate the actions of the Parliament. However the Parliament, consisting of a combination of the Crown, the Lords, and the Commons is sovereign which means it can do almost anything it wants to do. It seems Blackstone favored this approach, while the Founders rejected it and embraced Vattel[6] instead. No judiciary is available to overturn an act of the sovereign Parliament that violates the “understanding” nor is there a chief executive that can veto it. It would seem that the “understanding” is elastic and can grow with the UK’s culture and its history. “Progressives” in the USA would rejoice if our Constitution could be replaced by such an understanding.

But I digress. Vice President Chester A. Arthur became President immediately after President Garfield died, primarily from an assassin’s bullet. Garfield died on September 19, 1881 and Arthur was sworn in, first at his home and again in D.C. On December 19 Arthur nominated Horace Gray to fill a Supreme Court vacancy. Gray was confirmed by the Senate the next day. Not much debate to confirm Gray.

Questions regarding Chester Arthur’s eligibility to be Vice President dogged Garfield’s campaign, but Arthur was able to persuade most doubters that he was born in Vermont in 1830, not in Ireland or Canada, and the matter was put to rest. As he neared death in 1886 Arthur had the servants burn all his personal papers, a most unusual act for a past-president.

An investigator uncovered information recently about Arthur in the Library of Congress that disclosed Arthur’s father was a British citizen who did not become naturalized until 1843, when Arthur was 14 years old.[7] Therefore, Arthur’s father was “subject to the jurisdiction” of England, English common law not withstanding. Arthur was not a “natural born citizen” and knew it. So questions about Arthur’s birthplace were a distraction and it occurred to no one at the time to investigate his father’s citizenship and that Arthur was born a British subject. So does it now appear that one US president was in fact a British subject? Did Justice Gray know this and develop the English common law issue only to legitimize Arthur’s presidency 12 years after his death?

If Chester Arthur was not eligible to be President then the appointment of Horace Gray was tainted, as was the finding in the Wong Kim Ark case. Would this negate the finding in this case, could it just be considered wrongly decided, or is this another judicial travesty to remain as “settled law?”

“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.”[8] Well of course. That is exactly what the 14th Amendment is about. Another constitutional amendment to clarify what is already quite clear is not needed, but some supportive legislation by Congress would be helpful. A lifetime appointment to the Supreme Court is an honor and a matter of public trust. The appointees are obliged to rely upon the documented intentions of the Founders (and in this case those of the Framers of the 14th Amendment) and not have their decisions encumbered by the weltanschauung inculcated by the Ivy League.
[1] U.S. v. Wong Kim Ark, 169 U.S. 649 (1898),
[2] Ratified July 9, 1868
[3] Congressional Globe, 39th Congress, 1st Session, (1866), pp. 2890-2893,
[4] loc. cit., p.2890
[5] loc. cit., p. 2893
[6] Vattel’s Law of Nations (1758) Interesting discussion at this site:
[7] Donofrio, Leo C., “Historical Breakthrough-Proof: Chester Arthur Concealed He Was A British Subject At Birth,” STARWISE, December 06, 2008,
[8] Quoted from J. Gray’s decision.

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