Friday, January 7, 2011



For those who have trouble understanding U.S. v. Wong Kim Ark, I have reduced the decision to Q&A form:

Question: What does the citizenship clause of the 14th Amendment mean?

Justice Gray: It “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”

Question: How do you know that?

Justice Gray: Well, “the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption.” Hence it is “declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed.”

Question: Why would they adopt an Amendment that meant the same thing as existing law under the original Constitution?

Justice Gray: “Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States.”

Question: So in order to define the meaning of the 14th Amendment, we need to first define the existing law under the original Constitution?

Justice Gray: Yes, that is what declaratory means.

Question: So what was existing law under the original Constitution?

Justice Gray: Well, “[t]he Constitution of the United States, as originally adopted, uses the words ‘citizen of the United States,’ and ‘natural-born citizen of the United States.” However,”[t]he Constitution nowhere defines the meaning of these words.” Hence, “[i]t 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….” as “[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

Question: So how were these terms defined under the English common law?

Justice Gray: The English common law rule was “any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject.” Such rule was “in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.”

Question: But doesn’t the Constitution use the term “citizen” rather than “subject?”

Justice Gray: “The term citizen, as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of governments” hence “subject and citizen are, in a degree, convertible terms as applied to natives.” Accordingly, “[a]ll persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”

Question: So generally, anyone born in the United States is a natural born citizen?

Justice Gray: Yes, the natural born citizenship clause “assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”

Question: So the natural born citizenship clause and the 14th Amendment mean the same thing?
Justice Gray: Not sure how much clearer I can make it.

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