Justice Horace Gray’s opinion in U.S. v. Wong Kim Ark has provided the basis for 14th Amendment citizenship since 1898. But history must record the fact that Gray, whether aware of it or not, had a greater personal stake in the outcome of the case than any Supreme Court justice ever has had in a case…and by a very wide margin. Gray’s appointment came at the hands of Chester Arthur. Back in Dec. ’08, this blog exposed the fact that Arthur’s father didn’t become a citizen of the United States until 1843, when Chester was 14 years old. Therefore, Chester Arthur was a natural-born subject of the British empire.
If the Supreme Court had decided in Wong Kim Ark (WKA) that the children of alien parents domiciled in the country were not citizens under the 14th Amendment, then Chester Arthur would not have been a citizen at birth. Upon being exposed, his administration might have been rendered void, his name stripped from the list of presidents, and his official actions reversed. That the Court decided Ark, and indirectly Arthur, were citizens, does not mean they were natural-born, as this requires a separate and distinct analysis.
In Justice Kennedy’s majority opinion from Caperton v. A.T. Massey, the Supreme Court stated, with regard to judicial recusal standards:
“Under our precedents there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.’ …The inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’ ” Caperton v. A.T. Massey, No. 08-22, 129 S.Ct. 2252 (2009).
Justice Gray, by any objective standard, should have recused himself if he had knowledge of Chester Arthur’s nativity.
Had the country been aware of Arthur having been born to an alien father, there would have been absolutely no need for the Court to have weighed in on WKA, whose citizenship would have been confirmed by the fact that a person born to an alien father had become POTUS with no challenge on that basis. If Justice Gray was aware of Chester Arthur having been born to an alien father, why didn’t he mention it in the 55 page opinion he authored in WKA? It certainly would have been very relevant to the issue before the Court.
That Gray never raised the issue tells us one of two things had to be true; either Gray didn’t know; or, he concealed such knowledge from the rest of the Court and the nation. Either way, Chester Arthur had something to hide, and he did a fine job of hiding it. My previous reports on this topic (here, and here) highlighted the numerous lies Arthur told to newspapers concerning his parental heritage.
There’s a haunting introduction in the catalogue of papers which remain at the Library of Congress from the Chester Arthur collection, which is virtually barren of documents since Arthur burned everything the day before he died:
“Charles E. McElroy, the son of Mary Arthur McElroy who was my grandfather’s First Lady, tells me that the day before he died, my grandfather caused to be burned three large garbage cans, each at least four feet high, full of papers which I am sure would have thrown much light on history.”
The issue of Chester Arthur having been born to an alien father wasn’t known to the public when Arthur ran for VP, or at anytime through his POTUS administration. And there has not been a single newspaper article, or legal reference to the issue, anywhere in recorded American history before 2008.
Since Dec. 2008, the issue has gained widespread attention. It has appeared in the Indiana Court of Appeals opinion from the case, Ankeny v. Governor of the State of Indiana, as well as in Jack Maskell’s Congressional Research Service memo, although neither source has been intellectually honest with its audience about the issue. In the Ankeny opinion, the Court deceptively remarked as follows:
“We note that President Obama is not the first U.S. President born of parents of differing citizenship. Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen… Although President Arthur‟s status as a natural born citizen was challenged in the 1880 Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because Arthur‟s father was an Irish citizen he was constitutionally ineligible to be President. See generally id.” Ankeny v. Governor of the State of Indiana, Cause No. 49D10-0812-PL-55511, pg. 18 (2009).
Either the Court here was being coy, or they were being ignorant, in that they failed to discuss that the issue was not raised because it was not known. Had it been known, it certainly would have been raised.
We have direct evidence – that the issue was not known to the public – from two important sources. One is President Arthur himself, and the other is a crucially relevant law review article from 1916. Both sources provide translucent illumination upon the matter.
When Charles Evans Hughes was running for President, this very issue was brought to the attention of the public by former Secretary of State and Ambassador to Italy, Breckenridge Long, in an article written for the Chicago Legal News in 1916:
“Whether Mr. Hughes is, or is not, a ‘natural born’ citizen within the meaning of the Constitution, so as to make him eligible or ineligible, to assume the office of President, presents an interesting inquiry.
He was born in this country and is beyond question ‘native born.’ But is there not a distinction between ‘native born’ and ‘natural born? At the time he was born his father and mother were subjects of England. His father had not then been naturalized. The day after Mr.Hughes was born his father had a right, as an English subject, to go to the British consul, at New York, and to present his wife and infant and to claim any assistance he might need from the consul as the representative of the English government.
If war had broken out between this government and England this government would have had a right to interne the father, the mother and the son as subjects of an enemy power.”
Read the article in full. You will notice that it does not address the issue of Chester Arthur’s father having been an alien. Had the nation been aware of that fact, such knowledge would have determined the very issue in question thereby rendering it moot.
Long’s failure to draw a comparison to Arthur’s father, who was also a British subject for the first fourteen years of Chester’s life, is conclusively telling. Nobody knew about Chester Arthur’s little secret outside of whoever was keeping that secret. However, Long does mention Chester Arthur in the article for a separate reason which we will discuss below.
According to the 1951 consular compact between the United States and the United Kingdom, President Obama’s father also had the right to register Obama, Jr. as a citizen of the U.K. at a British consular office.
President Obama has never informed the nation whether such registration happened. If it did, he would still retain British citizenship unless he took official steps to renounce that citizenship. Without direct registration by his parents, Obama’s U.K. citizenship expired when he became a citizen of Kenya. My research indicates that he is not a British Overseas Citizen (BOC), as has been contended by some. I will go into more detail on this in the future.
MASKELL’S CRS PROPAGANDA ON CHESTER ARTHUR AND BRECKENRIDGE LONG.
Jack Maskell’s CRS propaganda memo mentions Arthur on page 48 at Footnote 208:
“As an historical matter it may be noted that Chester A. Arthur, 21st President of the United States, was apparently born in the United States (despite rumors being spread by opponents that he was born in Canada) in 1829 to a U.S. citizen-mother and a father who was not a U.S. citizen, but rather a citizen of Ireland and a British subject, although there have been assertions by some that this fact was not widely known at the time.” (Emphasis added.)
This is a subtle attempt to rewrite historical truth. It implies that there are only “assertions” that the fact wasn’t widely known, when, in reality, the assertions have been proved by the historical record. The issue wasn’t known to anyone in the public domain at all, not until Dec. 2008. Had the issue been public knowledge, it would have been discussed by Justice Gray, and by Breckenridge Long.
Maskell mentions the Long article in the very same footnote, but fails to inform his audience (Congress) that the article was written by a former Secretary of State, stating, “Although a question was raised by this individual at the time of Hughes’ candidacy...”
Maskell might have considered that members of Congress would be interested to know the article came from a career diplomat/department of state professional, but he chose to leave that out of his “research”.
SCOTUS RECUSAL ISSUES.
Obviously, a U.S. Supreme Court justice, who is called to pass judgment upon the eligibility of the president responsible for appointing him to the bench, would have a serious stake in the outcome, namely, his dream job and income therefrom. Not only would the honor and prestige of the appointment be at risk of being stripped, there’s a financial stake as well.
And if this issue ever reaches the Court as to Obama, Justices Sotomayor and Kagan must recuse themselves as well, according to 28 U.S.C. 455(a):
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
28 U.S.C. 451 defines “justice” as follows:
The term “justice of the United States” includes the Chief Justice of the United States and the associate justices of the Supreme Court.
Justice Gray’s awareness of Arthur’s nativity issue must be examined now in a forensic manner, but Justices Sotomayor and Kagan are certainly aware of Obama’s eligibility conundrum, and should they not be required to recuse themselves if the Court accepts review, the institution of the U.S. Supreme Court will never recover. It’s hallowed reputation will be irreversibly tainted.
This forensic process now continues from my recent report on Gray’s inexcusable misquotes regarding McCreery v. Somerville in the WKA opinion. Today, we set the stage for a deeper examination of WKA, by going back in time before it was decided to examine statements by Gray which directly contradict his opinion in WKA. We shall also pay very close attention to a hauntingly telling public statement by Chester Arthur.
JUSTICE GRAY CITED THE SLAUGHTERHOUSE CASES AS PRECEDENT IN ELK v. WILKINS.
Two years earlier than Minor v. Happersett, with 8 of the 9 Justices from Minor on the bench, the Court construed the 14th Amendment as follows:
“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.” The Slaughter-House Cases, 83 U.S. 36, 73 (1872).
According to this statement by the Court, those born in the country of alien parents are not citizens of the U.S. This quote was then followed by a very important distinction between foreign citizenship… and foreign race:
“The first clause of the fourteenth amendment changes this whole subject, and removes it from the region of discussion and doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry.” Id. at 95. (Emphasis added.)
Throughout the opinion, the Court discusses the “condition” of persons with regard to being free or slave. And the opinion of the Court shows great respect for the purpose of the 14th Amendment, to protect those who were previously oppressed:
“[O]n the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” Id. at 71.
The Supreme Court, therefore, provided a clear distinction between the issue of racial discrimination, and the issue of foreign citizenship. This vital distinction provides important clarity upon the issue, and upon the virtue of the Minor/Slaughter-House Court, which will certainly be slandered as the issue generates more and more interest with the public leading up to the 2012 election, amidst the various ballot challenges now pending in the courts.
You can see the trend already put in play by Jack Maskell’s CRS propaganda memo, wherein he attempts, on page 28, to link Minor v. Happersett to the racist Dred Scott case, despite the fact that the Court in Minor never even mentions Scott v. Sandford in the entire case:
“In one early Supreme Court case after Dred Scott, the Court narrowly applied the earlier theory of citizenship in Dred Scott (as being only the original community of people who ratified the Constitution and their progeny)…”
This is Maskell’s modus operandi of deception clearly exposed. While the Court in Minor completely, and wisely, refrained from citing to Dred Scott, Maskell’s propaganda associates those justices directly with the blight of racism contained in Scott v. Sandford. This is a depraved allegation by Maskell.
Supreme Court decisions specifically cite to all authorities relied upon. The Court in Minor chose not to rely upon the Dred Scott opinion, and they never mention the case. Maskell is just making stuff up and labeling it “research”. That our tax dollars have funded this deceptive propaganda is deplorable. Meanwhile, it’s Justice Gray who endorsed the Dred Scott opinion for his own purposes. But Maskell, of course, gives Justice Gray a pass, even where Justice Gray blatantly misled the nation:
“In Dred Scott v. Sandford (1857) 19 How. 393, Mr. Justice Curtis said: ‘The first section of the second article of the constitution uses the language, ‘a natural-born citizen.’ It thus 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.’ Id. 576. And to this extent no different opinion was expressed or intimated by any of the other judges.” U.S. v. Wong Kim Ark, 169 U.S. 649, 662 (1898). (Emphasis added.)
First, Gray never mentions that he’s quoting from the Curtis dissent. It’s standard protocol to identify a dissenting opinion. Second, unless the reader is wary enough to correctly interpret, “to this extent”, he will come away from the passage believing all of the justices agreed that anyone born in the country was a “natural-born citizen”. This is utterly false. Justice Daniel cited to the Law of Nations rule, quoting Vattel directly:
” ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.’ ” Scott v. Sandford, 60 U.S. 393, 476 (1856)
Since Justice Gray was aware of Justice Daniel’s opinion, his assertion, that no other opinion was expressed by any of the other judges, indicates that, “to this extent”, was, to the extent of citizenship, and not to the issue of whether a citizen was natural-born. It takes a very discerning point of view to unearth the distinction. The motive for such parsing and deception appears to be the curing of Chester Arthur’s eligibility defect.
We shall now examine Justice Gray’s reliance, in Elk v. Wilkins, upon The Slaughter-House Cases, which he cited as precedent in his majority opinion of the Court:
“The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U.S. 303 , 306.” Elk v. Wilkins, 112 U.S. 94, 101 (1884). (Emphasis added.)
First, note that Gray, at this point in time, interprets the opening clause of the 14th Amendment to mean, “owing no allegiance to any alien power”. He clearly establishes as precedent that “subject to the jurisdiction thereof” and “owing no allegiance to any alien power” are synonymous. Then he cites to page 73 of The Slaughter-House Cases as precedent for this point.
Page 73 is the exact page of the opinion where the Court stated, “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.” Notice that Justice Gray treats this as precedent in Elk v. Wilkins, taking no issue with any of it.
While Elk v. Wilkins concerned the status of an American indian, which encompassed, I admit, a more complex issue, Gray’s statement above is given as a general statement of law, not as a specific reference to the status of indians.
The point is reinforced later in the opinion, when he states:
“Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though 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,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” Elk v. Wilkins, 112 U.S. 94, 102 (1884). (Emphasis added.)
The paragraph concerns three classes of persons who are – in a geographical sense – born in the United States, but who are not subject to the jurisdiction of the U.S. Those three classes are indians, children of ambassadors, and children born in the U.S. of foreign subjects, the parents having been born in the foreign nation themselves. The statement does not make sense if read to mean that the children of foreign subjects referred to in the quote are actually born on the foreign soil of the country to which their parents owe allegiance.
The comparison is solely focused upon persons born, in a geographical sense, in the U.S., but subject to an alien power. This statement must be read in conjunction with Justice Gray’s deference to page 73 of The Slaughter-House Cases, as well as the Court’s correlative characterization of the synonymous nature of the 14th Amendment and the Civil Rights Act of 1866.
In 1884, Justice Gray was all about following stare decisis by giving proper respect to the prior authority. But something happened – between 1884, when Elk v. Wilkins was decided, and 1898 when WKA was decided – that made Justice Gray turn about-face on this issue. We shall discuss below what I believe to have been the catalyst, but first we must review Justice Gray’s about-face from The Slaughter-House Cases in WKA:
“Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the fourteenth amendment, made this remark: ‘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.’ 16 Wall. 73. This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together…” U.S. v. Wong Kim Ark, 169 U.S. 649, 678 (1898).
Under Gray’s analysis here, his own errors in the WKA opinion, such as misquotes from McCreery v. Somerville and the statute there involved, would render his entire opinion in WKA to be dicta. Moreover, there was no mention of any problem with The Slaughter-House Cases when Justice Gray cited to page 73 of that decision in Elk v. Wilkins. Gray had no problem using it as a point of authority then. And his assertion that the point was not supported by any argument is bunk as well. There’s plenty of argument on the nature of citizenship in that case.
The unexplained inconsistency between Gray’s opinion in Elk v. Wilkins and WKA simply reeks of bias.
Here is another about-face from Gray’s prior opinion in Elk v. Wilkins:
“By the civil rights act of 1866, ‘all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,’ were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, 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 which would theretofore have been their birthright…But any possible doubt in this regard was removed when the negative words of the civil rights act, ‘not subject to any foreign power,’ gave way, in the fourteenth amendment of the constitution, to the affirmative words, ‘subject to the jurisdiction of the United States.’ ” U.S. v. Wong Kim Ark, 169 U.S. 649, 688.
Again, in Elk v. Wilkins, Gray treats the 14th Amendment and the Civil Rights Act synonymously, citing to The Slaughter-House Cases as authority, to the very page where the court stated persons born of aliens are excluded from citizenship. And what complicates all of this so effectively is the fact that Gray fails to acknowledge the truth of his prior stance in Elk v. Wilkins. Instead, he simply pretends that he never made such a ruling.
CHESTER ARTHUR SOUNDS THE ALARM.
The catalyst for Justice Gray’s about-face may have been the Fourth Annual Message by President Arthur. Just four weeks after the opinion from Elk v. Wilkins was issued (Nov 3, 1894), President Arthur’s address included the following veiled, but stunning, admission:
“An uniform rule of naturalization” such as the Constitution contemplates should, among other things, clearly define the status of persons born within the United States subject to a foreign power (section 1992) and of minor children of fathers who have declared their intention to become citizens but have failed to perfect their naturalization…A just and uniform law in this respect would strengthen the hands of the Government in protecting its citizens abroad and would pave the way for the conclusion of treaties of naturalization with foreign countries.” President Chester Arthur, Fourth Annual Message, Dec. 1, 1894.
What an incredible statement this truly is when viewed in the light of history. Chester Arthur was obviously rocked to the core by the Elk opinion, delivered just a few weeks earlier, from the highest Court of our nation, which firmly denied his right to hold the office of President. Arthur clearly understood that the implications of that decision were exactly as I have stated above, that persons born in the country of alien parents were excluded from citizenship. Arthur’s Fourth Annual Message is a cry from the wilderness to which he might have been banished. Arthur was a prestigious New York attorney who obviously understood the dire implication of the Court’s holding. The timing of these comments is directly related to Elk v. Wilkins. This is what I mean by forensic analysis.
The statement is rich with context and evidence. Consider that Arthur recognizes that persons born in the U.S. subject to a foreign power would require naturalization. Additionally, he calls for the status of such persons to be clarified. Which class of persons does he refer to? Certainly not ambassadors and ministers, since their status has always been clear. The status of indians was declared in Elk v. Wilkins, so he’s not making reference to them. That leaves the third class of persons discussed on page 73 of The Slaughter-House Cases, “citizens or subjects of foreign States born within the United States”. Since Justice Gray cited to that exact page as precedent, Arthur had good reason to be alarmed.
Those requiring naturalization are not natural-born. That the Civil Rights Act of 1866 was an act to naturalize the children of aliens born in the U.S. was discussed in Congress during the debates, such discussion actually having been quoted by Justice Gray in WKA:
“During the debates in the senate in January and February, 1866, upon the civil rights bill, Mr. Trumbull, the chairman of the committee which reported the bill, moved to amend the first sentence thereof so as to read: ‘All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without distinction of color.’ Mr. Cowan, of Pennsylvania, asked ‘whether it will not have the effect of naturalizing the children of Chinese and Gypsies, born in this country?’ Mr. Trumbull answered, ‘Undoubtedly;’…Cong. Globe, 39th Cong. 1st Sess. pt. 1, pp. 498, 573, 574.” U.S. v. Wong Kim Ark, 169 U.S. 649, 698.
Justice Gray cites this statement approvingly, taking no issue with its indication that persons born in the U.S. of alien parents require naturalization, despite his dicta concerning the British common law. And this confirms that the Civil Rights Act of 1866 was a naturalization act. The only congressional power to regulate citizenship pertains to naturalization. For example:
This is also why Congress may never change or repeal Article 2, Section 1 by legislation. It would require a constitutional amendment. Therefore, native-born persons of alien parents, requiring such naturalization, could never be considered natural-born citizens. This is because, whatever the 14th Amendment may have done to cure their need for naturalization, the Amendment did not contain the phrase “natural-born”, and it did not confer any new privileges or immunities:
“The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had.” Minor v. Happersett, 88 U.S. 162, 171 (1874).
Therefore, no citizen is eligible to be POTUS who wouldn’t have been eligible prior to the enactment of the 14th Amendment.
President Arthur’s Fourth Annual Message was also concerned with the children of fathers who had failed to complete their naturalization after declaring intent to naturalize. He was cryptically speaking of himself. If the fact of Arthur’s birth to an alien father had been known, there would have been no need for him to raise the issue with the public in his Fourth Annual Message.
And in an amazing turn of events, Breckenridge Long specifically mentioned Chester Arthur’s Fourth Annual Message to show that President Arthur agreed that persons born to an alien father were not citizens at birth, and were not eligible to be President! This unequivocally proves that Breckenridge Long, and the rest of the nation, certainly had no idea Chester Arthur was British at birth.
WONG KIM ARK’S PARENTS WERE TECHNICALLY NATIONALS OF THE UNITED STATES.
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.”
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.]
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