By Michael David Rawlings
I. The Love Child of Judicial Activism
A. The Birth
B. The Quarrel
II. Congressional Prerogative and the Glitch that Stole Eligibility
III. Muddling the Point
IV. Whoa, Nelly! The Wheels Fall Off the Wagon
A. Common Law
B. The Insular Cases
ConclusionC. The Plenary Power Doctrine
Introduction
Professor of Law Gabriel J. Chin is on the faculty of the James E. Roberts College of Law at the University of Arizona.1 His resume is impression, but beyond the "mathematics" of his fundamental contention, it is clear that he lacks firsthand knowledge about the history and philosophy of citizenship and heavily relies on the expertise of others in the field of American immigration and nationality law. While he handily refutes Tribe-Olson, he sometimes mishandles case law by citing obiter dicta as if they were rationes decidendi and in one instance inexplicably characterizes the line of judicial decidendi of a well-established doctrine as dicta. The latter is especially odd since the doctrine pertains to the territorial and jurisdictional distinctions comprising the indispensable "nuts and bolts" of his central thesis. At other times he mishandles the scholarship on case law, and this is especially evident from his befuddled notions about common-law citizenship and United States v. Wong Kim Ark (1898), which are partially based on a profound misunderstanding of Jill A. Pryor's 1988 Note in the Yale Law Journal.2
I. The Love Child of Judicial Activism
According to Professor Chin, the Supreme Court has held that persons born in the United States are citizens by birthright and persons born outside the United States are naturalized citizens by statute. But unlike their peers who start out as foreign nationals and acquire U.S. citizenship subsequent to birth, persons born abroad of U.S. citizens are U.S. citizens at birth. While Professor Chin opines that all persons "born in the United States are uncontroversially natural born citizens"3 he allows that "[t]here is . . . a strong argument that those obtaining citizenship at birth by statute are natural born citizens", too. But the only statement of his along this avenue that truly is beyond all historical controversy is that "natural born citizenship can be acquired only at the moment of birth".4
___________________________1 Fomerly with the University of Arizona.
2"The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty", The Yale Law Journal, Vol. 97, http://yalelawjournal.org/images/pdfs/pryor_note.pdf.
3 and 4"Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship, Introduction"; Gabriel J. Chin; Michigan Law Review First Impressions; Vol. 107:1; August, 2008; pg. 2; http://www.michiganlawreview.org/assets/fi/107/mccain.pdf. While there is no doubt that all persons born in the United States are natural-born citizens, provided that they are born of U.S. citizens or of foreign nationals legally residing in the United States and not officially engage by a foreign power, the practice of conferring birthright citizenship on the offspring of illegal aliens in the absence of any explicit approbation is more controversial today than ever. Conservative originalists generally hold that if this egregious violation of national sovereignty cannot be terminated by statute, then it should be exterminated by a constitutional amendment.
A. The Birth
The Supreme Court has never held jus sanguinis proper to be a form of naturalization in ratio decidendi. In fact, no federal court at any level has ever addressed the principle except in dicta. Of the dozens of opinions in which it has been thusly addressed at the highest level, only a small handful of these suggested that the congressional practice bestowed anything less than natural-born citizenship, and these dicta are essentially reiterations of the Wong Kim Ark dictum, which was famously slapped down in Weedin v. Chin Bow (1927).
In Wong Kim Ark the Court ruled in a 6-2 decision, authored by Justice Horace Gray, that under the Fourteenth Amendment a person born in the United States of foreign nationals is a citizen of the United States at birth, provided that the person's parents have a permanent domicile in the United States and are not employed in any official capacity by a foreign government. The Court's ratio decidendi featured the following argument:
The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States." The Fourteenth Article of Amendment, besides declaring that "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," also declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." And the Fifteenth Article of Amendment declares that "the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude."The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States" [Fourteenth Amendment, Section I]. 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. . . It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.5
Accordingly, the Court held that while the Constitution permitted Congress to withhold the grant of citizenship by statute from foreign nationals and the foreign-born children of U.S. citizens, the Constitution, since the ratification of the Fourteenth Amendment, did not permit Congress to withold citizenship from any person born in the United States, unless his parents were foreign nationals officially engaged by a foreign power. Aside from the fact that the Court failed to clarify whether or not the second part of the rule included the children of illegal aliens, so far so good . . . well, assuming that Congress was bound by the British common-law rule of birthright citizenship as a result of the ratification of the Fourteenth Amendment.
That was a colossal assumption, because up to that moment in history neither the legislators of the several states' nor the members of Congress had been aware of iv. And given that these interests adopted the article of amendment, their lack of awareness was peculiar. Either the Court had suddently uncovered this oversight or had kept it a secrete from the rest of America for thirty years. Not surprisingly, the veracity of the Court's news report was disputed by Justices Fuller and Harlan, who insisted that no person born in the United States of foreign nationals—whether in America legally or not—was automatically "subject to the jurisdiction thereof."
But then the Court went on to report something even more startling—a real popcorn thriller. "The same 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."6
Lordy! The respective governments of the Union had been way off the mark from the very beginning, for more than one-hundred years!
But the Court was chock-full of surprises that day, as it also declared—albeit, in an obiter dictum—that the conferral of citizenship at birth by statute was a form of naturalization . . . because the congressional administration of jus sanguinis involved the naturalization powers clause. But the Court confounded process with principle, for the congressional authority to confer citizenship at birth on the foreign-born children of U.S. citizens—and on the foreign-born children of U.S. citizens only!—is derived from the Natural Born Citizen Clause. In British and American legal tradition, the intrinsic law of the soil and the derivative law of the bloodline confer natural-born citizenship. Only conferrals of citizenship subsequent to birth constitute naturalized citizenship. Hence, after stating that the matter "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", the Court declared that what the Framers regarded to be one thing was to be regarded as something else.
But as John Yinger, Charles Gordon and others have shown, the Court was led astray by the scholarship of Horace Binney on which it so heavily relied for its exposition on English case and statutory law.7 The Court observed that the principle of jus sanguinis did not originate with common law, but with Roman law. Correct. The principle was first implemented in Great Britain by Royal decree in 1350. Correct again. Citizenship by statute is not an inherent human right under common, natural or constitutional law. 500. Therefore, citizenship at birth via the law of the bloodline is a form of naturalization and all persons born within the territorial boundaries of the United States are necessarily citizens by birthright, provided that their parents aren’t foreign nationals engaged by a foreign government. Non sequiturs.
First, just because the principle of jus sanguinis had never been adjudicated by Great Britain's judiciary and, therefore, had never been an inherent component of English Common Law, and just because citizenship by statute is not an inherent right, why characterize the application of the principle under constitutional law as a form of naturalization when the Constitution features the language of Royal decree? Constitutional law was not subject to the jurisdictional limits of the King's Bench. The term native born does not appear anywhere in the Constitution; the term that appears is natural born. The constitutional distinction between the natural-born citizen and the naturalized citizen is not the process of conferral, but the moment of conferral. Under constitutional law, persons who acquire U.S. citizenship at the moment of birth are natural-born citizens; persons who have no prior claim on the soil or the blood of the nation and, therefore, acquire U.S. citizenship subsequent to birth are naturalized citizens.
Second, constitutional law did not countenance the common-law doctrine of birthright citizenship, whereby even a "child of an alien, if born in the country, [was] . . . as much a citizen as the natural born child of a citizen."8 Laying aside the special circumstances that governed the status of American Indians and most Negroes,9 persons born in the United States of foreign nationals—even of white, non-indentured servants—were not necessarily citizens of the United States . . . unless firstly recognized as such by the state in which they were born. This was still the case for thirty years after the ratification of the Fourteenth Amendment, particularly for the American-born children of oriental foreign nationals, for both they and their parents were barred from acquiring U.S. citizenship by treaty and by federal law.10
Before Wong Kim Ark, Congress held that an American-born child of foreign nationals was subject to the jurisdiction of his parents' native country, not to that of the United States. In practice, Congress allowed that an American-born child of "white" foreign nationals (Europeans) could be invited to the party by the several states upon his departure from the womb, provided that his parents where not employed in any official capacity by a foreign government and, presumably, had entered the United States legally.
Hence the dissenting justices justifiably argued:
The English common law rule, which it is insisted was in force after the Declaration of Independence, was that "every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them) or a child born to a foreigner during the hostile occupation of any part of the territories of England" [Cockburn on Nationality 7].The tie which bound the child to the Crown was indissoluble.The nationality of his parents had no bearing on his nationality. Though born during a temporary stay of a few days, the child was irretrievably a British subject. . . .And it is this rule . . . which it is asserted determined citizenship of the United States during the entire period prior to . . . the ratification of the Fourteenth Amendment, and governed the meaning of the words "citizen of the United States" and "natural-born citizen" used in the Constitution as originally framed and adopted. I submit that no such rule obtained during the period referred to, and that those words bore no such construction; that the act of April 9, 1866,11 expressed the contrary rule; that the Fourteenth Amendment prescribed the same rule as the act, and that, if that amendment bears the construction now put upon it, it imposed the English common law rule on this country for the first time. . . .12
In other words, if the jus soli of common law applied to constitutional law from the beginning, someone forgot to tell the Framer's, members of Congress, America's Presidents and even members of the Court before 1898, for this is not reflected in more than one-hundred years of practice and understanding, in various statutes, treaties and decisions. In regards to the sovereignty of the people's Republic, volumes have been written by well-meaning Americans about the unforeseen, detrimental effects of the Fourteenth Amendment, but the Fourteenth is not the source of these problems. It emphatically declares that one must also be "subject to the jurisdiction" of the United States in order to enjoy citizenship's rights and privileges. No. In this case, as in many others, the blame for these problems should be placed on a renegade Court that ran roughshod over the will of the people.
While Pryor never states that citizenship at birth by statute is regarded to be a form of naturalization in extant, official practice and her ultimate goal is to preemptively salvage original intent with a synthesis of the congressional view and judicial dicta, whereby "a citizen may be both 'naturalized' and 'natural born' ",13 Professor Chin heedlessly goes on: "[a] person granted citizenship by birth outside the United States to citizen parents is naturalized at birth; he or she is both a citizen by birth and a naturalized citizen. This last point is discussed thoroughly in Jill A Pryor's 1988 note".14
But beyond theory, according to whom or what precisely?
This is true only in the judiciary line of dicta harking back to Wong Kim Ark. The rest of case law does not countenance this judicial aberration, and Congress continues to utterly reject it, explicitly voicing its opinion in statute to the effect that only citizenship conferred subsequent to birth by statute constitutes any form of naturalization whatsoever. Persons duly born abroad of U.S. citizens are natural-born citizens for life, provided that they satisfy all of the statutory requirements of retention. The State Department continues to certify the natural-born status of the foreign-born children of U.S. citizens and will continue to do so until either Congress by statute or the Court in a ratio decidendi directs it to do otherwise. Professor Chin needs to snap out of his intellectual stupor: Pryor's thesis, however intriguing, is not established law; it is purely a theoretical model for reconciling Justice Gray's doctrine with original intent regarding the concept of natural-born citizenship and the mechanisms of the Naturalization Clause.
But Professor Chin's error regarding the nature of the Court's decree and that of Pryor's thesis is mostly due to a lack of the sort of objectivity that a broader knowledge of the history and philosophy of nationality would bring to his analysis of the Court's decision in Wong Kim Ark. As for the principle of jus sanguinis under constitutional law, it is the influence of Roman law and, subsequently, the nature of the status of citizenship bestowed at birth under English statutory law that matter. Hence, the Professor's account of the congressional power of prerogative over the conferral of citizenship by statute, for example, is imprecise and confusing:
The Supreme Court holds that the citizenship statutes are exclusive; there is no residual common-law or natural-law citizenship. Citizens have no constitutional right to transmit their citizenship to children. In Rogers, the Supreme Court upheld a statute requiring children born overseas to citizen parents to reside in the United States to retain their citizenship. Since "Congress may withhold citizenship from persons" born overseas to citizen parents or "deny [them] citizenship outright," it could impose the lesser burden of requiring U.S. residence to retain citizenship.15
This is true. But because this observation follows on the heels of Chin's assertion that "[a] person granted citizenship by birth outside the United States to citizen parents is naturalized at birth", it appears that Chin imagines some connection between Justice Gray's concept of "naturalized-born citizenship", as characterized by Pryor, and the congressional power of prerogative over the conferral of citizenship by statute. There is none. The Framers of the Constitution invoked the principle of royal-parliamentary prerogative, which obviously preceded the Fourteenth Amendment and American case law. The Court's characterization of citizenship via jus sanguinis was merely illustrative, and as shown in the above, irrational and uncalled for. Moreover, leftist judges in the Twentieth Century, citing Wong Kim Ark, have argued in dicta and in dissents that because citizenship via jus sanguinis is a form of naturalization and as such subject to the jurisdiction of the Fourteenth Amendment, Congress may not "impose the lesser burden of requiring U.S. residence to retain citizenship."
So which is it? Does the Fourteenth Amendment wipe out the congressional powers of prerogative and expatriation as it imposes the British common-law principle of perpetual allegiance or not? If not, then Rogers v. Bellei (1971) did not descend from the Wong Kkm Ark line of dicta, but from the countervailing line of judicial opinion—a decision that upheld original intent against the implications of the unconstitutional notion of a "naturalized-born citizenship" that has been the source of a great deal of mischief.16
___________________________5United States v. Wong Kim Ark, 169 U.S. 649 (1898), No. 18, pgs. 654 and 658, http://supreme.justia.com/us/169/649/case.html.
6Wong Kim Ark, pg. 658.
7The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution: Why Did the Founding Fathers Want the President To Be a "Natural Born Citizen" and What Does this Clause Mean for Foreign-Born Adoptees?, John Yinger, revised version, 2000, http://faculty.maxwell.syr.edu/jyinger/Citizenship/history.htm; "Who Can be President of the United States: The Unresolved Enigma", Charles Gordon, Maryland Law Review, Volume 28, 1968.
8Wong Kim Ark, pg. 665; "The Alienigenæ of the United States", Horace Binney, American Law Register, 2nd ed., February, 1854, pg. 22.
9American Indians were not U.S. citizens before 1924, and, of course, before the Civil War, the overwhelming majority of Negroes in the United States were slaves and, therefore, neither persons, except in terms of the census, nor citizens. Technically, under the states' rights doctrine of First Allegiance, Negroes born in some of the New England states were U.S. citizens . . . well, at least before the Dred Scott Decision (1857), which not only reiterated the prohibition of citizenship for slaves, but declared that neither former slaves nor the free descendants of slaves could ever be U.S. citizens. Presumably, persons of African descent who had never been enslaved in the United States or were descendants of such still were or could be U.S. citizens, provided that the respective state in which they resided or were born recognized them as citizens of the state first. Though there were precious few, some persons in the United States of African descent were of family lines that had never been enslaved anywhere. Most persons in the United States of African descent that were not subject to the Court's decree were of family lines that had immigrated to America from England's former slave colonies—former slaves or descendants of slaves, but not of America's peculiar institution.
10Even after Wong Kim Ark, most foreign nationals of oriental descent were barred from acquiring U.S. citizenship well into the Twentieth Century.
11The Civil Rights Act of 1866, which preceded the Fourteenth Amendment, established in statute what the Fourteenth established constitutionally.
12Wong Kim Ark, pgs. 706-707.
13"The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, IV. Conclusion", Jill A. Pryor, The Yale Law Journal, Vol. 97:881, 1988, pg. 899.
14 and 15"Why Senator John McCain Cannot be President, II. Natural Born Citizenship as a Child of Citizens, A. Citizenship and Natural Born Citizenship by Statute", pg. 5.
16See Wong Kim Ark Meet Rogers, Michael David Rawlings.
B. The Quarrel
The Framers of the Constitution instituted a synthesis of English Common Law and the Roman principle of jus sanguinis, a variation of the English construct of territorial-hereditary allegiance. As in English Common Law, nationality was to be ultimately predicated on the soil of the nation to be sure, but the blood of the nation was the "residual" link between the privilege of U.S. citizenship and the soil of the nation. Hence, in accordance with the principle of royal-parliamentary prerogative, the Framers provided that just as Congress could bestow citizenship at birth on the foreign-born children of U.S. citizens or not, Congress could bestow citizenship at birth on the American-born children of foreign nationals or not.
The absence of adjudication on jus sanguinis in English case law did not reflect the supposed universality of the British common-law version of jus soli, it merely reflected the jurisdictional limits of the King's Bench. That was the understanding to be garnered from an examination "of the common law, the principles and history of which were familiarly known to the framers of the Constitution." Given that the historical practice under natural and constitutional law in the United States for more than one-hundred years, thirty of those under the Fourteenth Amendment, did not countenance the British version of common law, clearly the Court in Wong Kim Ark went on a fishing expedition.
Assuming that his ignorance is not the duplicity of a leftist legal activist, Professor Chin is unaware of the on-going tug-of-war in the judiciary over the Graysian concept of naturalized-born citizenship and the highhanded abrogation of congressional prerogative over the status of the American-born children of foreign nationals. Ever since Wong Kim Ark, conservative jurists have chomped at the bit for an opportunity to address the Graysian concept of jus sanguinis and transform the dissenting opinion in that landmark case into a binding prohibition of birthright citizenship . . . at least as far as the children of illegal aliens are concerned.
In Weedin v. Chin Bow (1927), the Court under Chief Justice William Howard Taft took a stab it. Unfortunately, Taft was unable to muster a majority opinion that would have reversed explicitly prohibited the conferral of birthright citizenship on the offspring of illegal aliens, but he did cobble together a compromise that censured the earlier Court's characterization of citizenship at birth by statute. Writing for the majority, Taft highlights the absurdity of the previous Court's obiter dictum regarding the principle of jus sanguinis by contrasting it with its ratio decidendi. Taft begins with a backhanded compliment—pure sarcasm:
The very learned and useful opinion of Mr. Justice Gray, speaking for the court in United States v. Wong Kim Ark . . . establishes that, at common law in England and the United States, the rule with respect to nationality was that of the jus soli, that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute; that, by the statute of 7 Anne (1708) c. 5, § 3, extended by the statute of 4 George II (1731) c. 21, all children born out of the ligeance of the Crown of England whose fathers were or should be natural-born subjects of the Crown of England . . . at the time of the birth of such children . . . were deemed natural-born subjects of that kingdom to all intents and purposes whatsoever. . . . These statutes applied to the colonies before the War of Independence.17
Hence, the jus sanguinis' historical construct of allegiance 101, ultimately predicated on the soil of the nation, whereby the judiciary's jurisdiction was strictly limited to the adjudication of cases involving the acquisition of citizenship under the principle of jus soli. The congressional powers of prerogative and expatriation are preserved.
Though contextually part of the Court's ratio decidendi, the implications of Taft's observation are regarded to be dicta since he did not emphatically restrict the judiciary's jurisdiction. The dicta of the Supreme Court are generally held to be binding as far as the decisions of any lower court are concerned. If a lower court bucks a higher court's dictum, it typically does so in a ratio decidendi with the expectation that the higher court is going to review its ruling. But in Zimmer et al. v. Acheson (1951), the Tenth Circuit buried its dispute with Weedin in the language and the logic of a dictum.
But the Tenth Circuit did not merely disregard the higher court's prevailing dictum on the matter, it arrogantly broadened Gray's original concept to mean something that even he never intended: natural- and native-born citizenship were said to be exclusively synonymous.18 While Gray opined that a person born abroad "can only become a citizen by being naturalized", he allowed for the original constitutional distinction between persons born abroad of natural-born citizens and those born abroad of foreign nationals, that is, the moment of citizenship's conferral, either at birth or subsequent to birth. Hence, he left the door open to the legitimacy of the congressional practice of conferring natural-born status on children born abroad of U.S. citizens "by declaring certain classes of persons to be citizens" as it allowed "foreigners individually to become citizens".19 While Gray's concept implies a devaluation of the citizenship conferred by statute on the children of U.S. citizens relative to the birthright citizenship conferred on the children of foreign nationals, the Tenth Circuit's conflation of the terms native born and natural born entails an emphatic devaluation.
In this regard, the left's motive, especially since the 1960s, has been to systematically undermine the national sovereignty of the citizenry—increasing its general dependency on the state by increasing the burden that the state levies against its means. Muddling the distinction between the moment of citizenship's conferral and, therefore, the distinction between jus sanguinis proper and a de facto leges sanguinis serves to increase the degree to which public services are subsidized by the citizenry on the behalf of a growing demographic composed of persons with low incomes. And in accordance with the "enlightened" doctrine of the living Constitution, should the left prevail upon the federal government to formally extend leges sanguinis to the foreign-born blood relatives of anchor babies whose citizenship, after all, is of a greater value than even that of persons born abroad of U.S. citizens, the left could dramatically increase the welfare rolls as well. Sweet!
___________________________17Weedin v. Chin Bow, 274 U.S. 657 (1927), No. 237, pg. 660, http://supreme.justia.com/us/274/657/case.html.
18191 F.2d 209, Zimmer et al. v. Acheson, No. 4259, 1951, paragraphs 12-14, http://bulk.resource.org/courts.gov/c/F2/191/191.F2d.209.4259_1.html; See Appendix B, "Zimmer et al. v. Acheson: A Comedy of Errors"; Michael David Rawlings; Was Senator John McCain a U.S. Citizen at Birth?; August, 2009.
19Wong Kim Ark, pg. 702-703.
II. Congressional Prerogative and the Glitch that Stole Eligibility
Chin writes:
Congressional power to withhold citizenship from children of U.S. citizens is not hypothetical. . . . The Tribe-Olson Opinion proposes that "[i]t goes without saying that the Framers did not intend to exclude a person from the office of the President simply because he or she was born to U.S. citizens serving in the U.S. military outside of the continental United States. . . ." However, the Seventh Congress, which included Framers Gouverneur Morris and Abraham Baldwin among others, did precisely that.20
Here Professor Chin is talking about the Revised Statutes Act of 1802, Section 4:
[A]nd the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States.
From 1802 to 1855, Congress suspended the conferral of citizenship at birth by the law of the bloodline. Persons who became U.S. citizens after the statute's effective date could not transmit their citizenship to their foreign-born children. The Revised Statutes Act of 1855, Section 1 reinstated it:
All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.
This was a tough period for the fledgling Republic. From about 1794 to 1830, especially, America wrangled with the French, the British, and the Spaniards over one thing or another, and during the same period, most all of Western Europe was in constant turmoil. Congress was concerned about espionage and corruption from abroad. By mid-century, in spite of a looming civil war, an increasingly wealthy and confident America, with a recent military victory over Mexico that garnered a vast new stretch of territory, emerged from its isolationism and revised its nationality and immigration policy.
As Professor Chin states, the "[c]ongressional power to withhold citizenship from children of U.S. citizens is not hypothetical." But while Tribe and Olson may not be aware of the 1802 suspension of jus sanguinis, which included the offspring of military and diplomatic personnel, their proposition is essentially true. Professor Chin is being needlessly argumentative, and given his less than perfect appreciation for the Framers' skillfully inserted version of English royal-parliamentary prerogative, his point is more ironic than compelling.
In this instance, the key words of the Tribe-Olson proposition are "simply because". The reason that Congress suspended jus sanguinis in 1802 was not "simply because" it wished to exclude the offspring of U.S. personnel serving their country abroad, but because it felt the Republic was yet too fragile to bet on the relatively few better angels of human nature against intrigue from abroad. The 1802 suspension of jus sanguinis was a premeditated precaution; the lack of coverage provided by Section 1993 for children born in the Panama Canal Zone of U.S. citizens from 1904 to 1937 was an oversight. As reported by Snopes.com, Professor Chin states: "[i]t's preposterous that a technicality like this can make a difference".21 Indeed. And that is precisely the point that the authors of the Tribe-Olson Opinion make in this instance when they cleverly allude to this wrinkle without overtly drawing our attention to it: "[i]t's preposterous" to bar someone like McCain from presidential eligibility "simply because" of a glitch in the language of a statute.
___________________________20"Why Senator John McCain Cannot be President, II. Natural Born Citizenship as a Child of Citizens, A. Citizenship and Natural Born Citizenship by Statute", pgs. 5-6.
21Snopes.com, Rumor Has It, "The Natural", July, 2008, http://www.snopes.com/politics/mccain/citizen.asp.
III. Muddling the Point
Professor Chin writes that his thesis "contends that all courts considering the issue, including the Supreme Court (albeit in dicta), hold that persons born in unincorporated territories like the Canal Zone are not, for that reason alone, U.S. citizens. A number of individuals born in the Canal Zone under U.S. jurisdiction have been deported from the United States, even one claiming to be a birthright citizen under the Fourteenth Amendment."22
This somewhat muddles the point that Professor Chin makes later. The fact of the matter is that the Court held in Downes v. Bidwell (1901) in decidendi that no unincorporated territories fell under the Fourteenth Amendment's jurisdiction; in dicta the Court allowed that Congress could confer citizenship on the natives of unincorporated territories as long as such territories were owned outright by the United States.
The foundation for the Court's ruling in Downes was rock-solid:
The civil government of the United States cannot extend immediately and of its own force over territory acquired by war. Such territory must necessarily, in the first instance, be governed by the military power under the control of the President as commander in chief. Civil government cannot take effect at once as soon as possession is acquired under military authority, or even as soon as that possession is confirmed by treaty. It can only be put in operation by the action of the appropriate political department of the government at such time and in such degree as that department may determine.. . . So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory. . . . But those laws concerning "foreign countries" remain applicable to the conquered territory until changed by Congress.If Congress is not ready to construct a complete government for the conquered territory, it may establish a temporary government, which is not subject to all the restrictions of the Constitution.23
In regards to the lack of coverage for unincorporated territories not formally owned by the United States due to the distinction between the United States' national sovereignty of allegiance and the federal government's martial-judicial hegemony, Professor Chin writes, "[t]he problem was not created by legal or technological developments beyond the control of Congress, but because Congress itself created areas within U.S. jurisdiction but outside its limits. Congress decided the terms should no longer be identical, but did not revise all of the laws potentially affected by its decision."24
Professor Chin muddles this point a bit, too. Actually, it was the Court that contrived the martial-judicial jurisdiction of the United States as distinguished from the United States' national sovereignty of allegiance. On the other hand, Congress did drag its feet. It was not until 1926 that Congress finally got around to coherently consolidating the various bits of legislation it had enacted in response to the Court's most significant rulings in the turn-of-the-century Insular Cases. And while it was understood as early as 1932 or '34 by some that persons born in the Panama Canal Zone of U.S. citizens were not covered under Section 1993, Congress did not take any action to correct the problem until 1937. In fact, until Congress passed the Nationality Act of 1940, only the children born in the Canal Zone of U.S. government personnel and citizen employees of the Panama Railroad Company were covered by statute. The children born of other U.S. citizen parents were foreign nationals at birth.
___________________________22"Why Senator John McCain Cannot be President, Introduction", pg. 3. This error is probably some sort of editorial oversight, wherein some intermediate statement(s) was mistakenly struck from the original context, for surely Chin would know that someone who was in fact a birthright U.S. citizen could not be deported on the basis of dicta, and Chin does go on to correctly argue that those aspects of the pertinent Insular Cases which established the respective jurisdictions/sovereignties of the United States were binding.
23Downes v. Bidwell, 182 U.S. 244 (1901), No. 507, pg. 246-247, http://supreme.justia.com/us/182/244/case.html.
24"Why Senator John McCain Cannot be President, II. Natural Born Citizenship as a Child of Citizens, C. Should Section 1993 Be Re-drafted to Fix Congressional Error?", pg. 9-10.
IV. Whoa, Nelly! The Wheels Fall Off the Wagon
In the third part of his Note, Professor Chin shares his distaste for the virtually absolute discretion of the people's legislative body over immigration and nationality policy; that is to say, he finally reveals himself to be your run-of-the-mill leftist—a member of that exclusive club of self-anointed crusaders whose quest is to stamp out the false consciousness of xenophobia. By way of solving what is in reality a rather minor-to-nonexistent problem, the Professor proposes that the congressional power of prerogative be severely restricted by the Court. Nirvana would be achieved by (1) adopting a universal doctrine of common-law citizenship, (2) overturning the rulings of the Insular Cases and (3) replacing the plenary power doctrine historically applied to Congress' naturalization powers with a regime of judicial review under the aegis of the Fourteenth Amendment's equal protection clause. Either Professor Chin suffers from an acute case of naïveté or assumes that his readers do, for his proposals, taken together, would not merely restrict the congressional power of prerogative over immigration and nationality policy, but, for all intents and purposes, utterly abolish it. Or stated more accurately: the naturalization powers assigned to Congress by the Framers would be reassigned to the Court . . . by the Court.
Since the Professor acknowledges that "the full consequences of these changes are unknown,"25 but "would open up a world of challenges to current nationality laws",26 as he simultaneously avows that they "would hold up a legal regime historically full of contradictions, ironies, and lacunae to standards of logic, consistency and fairness";27 since the Professor acknowledges that his proposals "would be a rejection of the principle that only Congress can make citizens"28 and create "two [coequal] constitutional citizenship clauses—that in the Fourteenth Amendment and the natural born citizen clause—to be elaborated by the courts":29 we may safely assume that his mind is unhinged by both naïveté and an oligarchic contempt for the will of the people. For in spite of its complexities, insofar as current law reflects original intent, it is logically consistent and fair, and the comparatively few aspects in which it is not are directly due to the judiciary's meddlesome disregard for original intent. Were the Professor to have his way, chaos would ensue; the only "order" that would be disclosed would be that of an imperious judiciary.
But wait, there's more! For Professor Chin fails once again to hold more than one logically consistent idea in his head at a time: the proposal that common-law citizenship be extended beyond the territorial boundaries of the United States proper and the proposal that the decisions of the pertinent Insular Cases be overruled are essentially one and the same, and since the recognition of this is crucial to the substance of the Professor's challenge regarding McCain's presidential eligibility, one might wonder how he managed to gather together the various pieces of that puzzle in the first place, let alone assemble them into a coherent argument.
___________________________25"Why Senator John McCain Cannot be President, III. Senator McCain's Paths to Natural Born Citizenship, C. Restricting Congressional Power by Overruling the Plenary Power Doctrine", pg. 17.
26"III. Senator McCain's Paths to Natural Born Citizenship, B. Restricting Congressional Power by Recognizing Common Law Citizenship", pg. 16.
27 and 28"C. Restricting Congressional Power by Overruling the Plenary Power Doctrine", pg. 17.
29"B. Restricting Congressional Power by Recognizing Common Law Citizenship", pg. 16.
A. Common Law
Professor Chin writes:
[B]efore the Civil Rights Act of 1866 and the Fourteenth Amendment, no law granted or recognized citizenship by birth in the United States. Accordingly, the Constitution necessarily recognized citizenship based on law other than federal statute or constitutional provision. . . . The inevitable source is the common law in effect when the Constitution was drafted and ratified.30
Error. As argued in supra, the law that prevailed even after the ratification of the Fourteenth Amendment was informed by the Constitution's construct of territorial-hereditary allegiance, the terms of which were understood from the joint operation of the Constitution's Citizen Clause and the Naturalization Powers Clause. A person born on the soil of the nation was a U.S. citizen, provided that his father was a U.S. citizen. The reason "no law granted or recognized citizenship" based on the soil of the nation alone is because the Constitution's doctrine of common law did not include the British rule of birthright citizenship before Wong Kim Ark. One had to be born on both the soil and of the blood of the nation in order to be a natural-born citizen, with the parents' prior claim on the soil attributed to the foreign-born children of U.S. citizens.
Professor Chin goes on:
While the First Congress passed a statute granting citizenship to children born abroad, perhaps the statute was declaratory of the common law, not a determination that the common law of citizenship had been supplanted.31
The Professor is guessing. Because he doesn't realize that common-law citizenship in the United States was not originally based on the soil of the nation alone before Wong Kim Ark, he doesn’t understand how Congress got away with "deny[ing] citizenship to those entitled to it under the original Constitution",32 that is, to the American-born children of free persons before the ratification of the Fourteenth Amendment. But how could the grant of citizenship via jus sanguinis be "declaratory of the common law" when, as the Professor himself correctly observed in supra, "the citizenship statutes are exclusive; there is no residual common-law or natural-law citizenship"?33 Chin is making baby talk. Chapter III, Section I, Statute II of the Naturalization Act of 1790 could not and did supplant a common-law citizenship of any stripe; it had nothing whatsoever to do with it.
Apparently, the Professor thinks that in the beginning constitutional law deferred to a doctrine of common law that bestowed citizenship solely on the basis of the soil of the nation, when it didn't. He surmises, as we shall see, that perhaps the decision in Wong Kim Ark frustrated Congress' intent to extend common-law citizenship via jus sanguinis, when it didn't. And he believes that the Fourteenth Amendment compelled Congress to obey original intent with respect to the common-law doctrine of his fantasies, when it did no such thing. The Fourteenth Amendment naturalized all those persons who had been born in the United States and were subject to its jurisdiction, but for reasons of race and/or servitude had previously been prohibited the privilege of U.S. citizenship. Also, it guaranteed that regardless of race every child born in the United States of U.S. citizens would be a citizen at birth.
But then the Professor makes the most astonishing statement of all: "If the Constitution preserved citizenship under common law, Senator McCain would likely be a birthright citizen. Of course, overruling this aspect of Wong Kim Ark and Rogers. . . ."34
"[O]verruling this aspect of Wong Kim Ark"?! Would that be the aspect which imposed the British common-law rule of birthright citizenship in accordance with a Fourteenth-Amendment jurisdiction that encompassed every square inch of soil under the control of the United States' federal government? Earth to Professor Chin: the Fourteenth Amendment did not compel Congress to obey the British common-law rule of birthright citizenship, and Wong Kim Ark did not once again turn back the clock on the rule. Instead, the Court in Wong Kim Ark imposed it for the first time in history. If not for the rulings of the Insular Cases, which affirmed Congress' position that only those territorial possessions it had formally incorporated resided within the Fourteenth Amendment's jurisdiction. . . .
As for what is going on in the Professor's mind, this critic's best guess is that he believes Rogers—which confined the application of the Graysian concept of naturalized-born citizenship to the Fourteenth Amendment's jurisdiction as readjusted by Downes—is necessarily definitive of the Court's ruling in Wong Kim Ark that the principle of jus sanguinis was never a component of common law. Clearly, the Professor is not aware of the fact that in spite of this the leftist Warren Court of the 1960s believed it had established sufficient stare decisis with Afroyim v. Rusk (1967) to expand Wong Kim Ark's Graysian concept to include the foreign-born children of U.S. citizens under the Fourteenth Amendment's jurisdiction as if they had been "naturalized" in the United States: a bizarre and corrupt notion to be sure, but not one out of character for Lefty, as the motive was to usurp power. However, Lefty didn’t get his way in Rogers, which stopped the abuse of jus sanguinis cold. So, yes, Rogers would have to be overruled in order to achieve the Professor's agenda, but not any aspect of Wong Kim Ark. Every aspect of the latter is indispensable to Lefty's mischief.
___________________________30 - 32"Why Senator John McCain Cannot be President, III. Senator McCain's Paths to Natural Born Citizenship, B. Restricting Congressional Power by Recognizing Common Law Citizenship", pg. 16.
33"II. Natural Born Citizenship as a Child of Citizens, A. Citizenship and Natural Born Citizenship by Statute", pg. 5.
34"III. Senator McCain's Paths to Natural Born Citizenship, B. Restricting Congressional Power by Recognizing Common Law Citizenship", pg. 16.
B. The Insular Cases
Because "Senator McCain would be a citizen at birth if the Insular Cases were overruled or limited to the extent that all persons born in U.S. sovereign territory would be deemed citizens", the Professor reckons that "[t]here are good reasons to rethink the area."35 Indeed, they would be citizens, whether they were born of U.S. citizens or not. Laying aside the Professor's overly generous allowance, most of those born in the Canal Zone of U.S. citizens from 1904 to 1937 are dead, and for all intents and purposes, the rest are regarded to be natural-born citizens by the federal government despite the glitch in Section 1993. Just how many other people born in the Canal Zone of U.S. citizens during those years are contemplating a run for the presidency within the next ten years? The Professor is proposing that we overthrow decades of established law for one person over a technicality whose time has passed.
But the Professor's primary concern, though no more substantial than the first, is the alleged racism upon which the decisions of the Insular Cases were based. As proof of this, he points to the "blasphemy" in Downes authored by Justice Brown:
In the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws, and customs of people . . . which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race. . . .. . . [Because the territories of the former Spanish colonial islands] are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether large concessions ought not to be made for a time, that, ultimately, our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.36
For those readers waiting for the other shoe to drop: stop. According to the Professor, Justice Brown's commonsensical advice regarding the orderly assimilation of the inhabitants of newly acquired territorial possessions is code-speak for "some races were not suited to constitutional democracy".37 But rather than belabor the Professor's womanish sensibilities and lack of commonsense, credit must be given to the Court for getting this one right. After the Court in Wong Kim Ark foolishly imposed the British rule of birthright citizenship and, consequently, in lieu of any statute or constitutional provision explicitly defining the limits of the Fourteenth Amendment's jurisdiction, when just nine months later the Spanish colonies became America's: wisdom stepped in and confined the automatic conferral of U.S. citizenship to the soil of the nation proper. But trying to explain the obvious to a leftist is like running in circles for miles and miles.
And the Professor further confuses the matter when he cites Justice Harlan's dissent in Dorr v. United States (1904), a case that did not involve the acquisition of citizenship.
Though the doctrine on which the Court's decision was bottomed in this case had already been established in Hawaii v. Mankichi (1903), the issue before the Court, once again, at least in part, was whether or not the Constitution's fundamental protections applied to the native inhabitants of unincorporated territories in the absence of any statute expressly extending them. Upholding the ruling in Hawaii, the Court decreed, and this time with a solid majority, that until Congress stipulated otherwise no part of the Bill of Rights applied. "As was his wont," Chin writes, "Justice Harlan disagreed, asserting . . . that constitutional protections 'are for the benefit of all, of whatever race or nativity, in the States composing the Union, or in any territory . . . over the inhabitants of which the Government of the United States may exercise the powers conferred upon it by the Constitution.' "38 As it turned out, Congress agreed with Justice Harlan, and eventually on its own volition provided that the protections of the Constitution applied to all civilian inhabitants of territories over which the United States was sovereign—whether they were citizens of the United States or not.
Hence, the Professor is way off the mark when he asserts that "if Justice Harlan's view had prevailed" in Dorr, for example, "the Canal Zone would have been 'the United States,' subject to the citizenship clause of the Fourteenth Amendment. . . ."39 Not even the dissent joined by Harlan in Downes—which confined the jurisdiction of the Fourteenth Amendment to the several states of the Union and its incorporated territories—expressly pertained to the status of the native inhabitants of unincorporated territories. The Professor has got Harlan all wrong. Harlan is one of the finest justices in U.S. history. The dissent in Wong Kim Ark, also joined by Harlan, for example, eschewed the Court's imposition of Britain's common-law rule of birthright citizenship, and Harlan concurred in Rasmussen wherein the Court further expounded the differences between incorporated and unincorporated territories—reaffirming the exclusion of the latter from the jurisdiction of the Fourteenth Amendment!
Harlan emphatically did not support the idea of automatically conferring citizenship on the inhabitants of newly acquired territories, let alone on persons not also born of the blood of the nation. His concern in the earlier Insular Cases was that the inhabitants of unincorporated territories be afforded the full protections of the Constitution despite the status of their nationality in the meantime. His motive was twofold: (1) the Bill of Rights should be extended for the sake of upholding the United States' reputation for liberty and justice and (2) as the surest and swiftest means of assimilating the inhabitants of newly acquired territories. Wisdom.
___________________________35"III. Senator McCain's Paths to Natural Born Citizenship, A. Restricting Congressional Power by Overruling the Insular Cases", pg. 15.
36"A. Restricting Congressional Power by Overruling the Insular Cases", pg. 15; Downes v. Bidwell, 182 U.S. 244 (1901), No. 507, pg. 282 and 287, http://supreme.justia.com/us/182/244/case.html.
37"A. Restricting Congressional Power by Overruling the Insular Cases", pg. 15.
38"A. Restricting Congressional Power by Overruling the Insular Cases", pg. 15; Dorr v. United States, 195 U.S. 138 (1904), No. 683, pg. 154, http://supreme.justia.com/us/195/138/case.html.
39"A. Restricting Congressional Power by Overruling the Insular Cases", pg. 15.
C. The Plenary Power Doctrine
Professor Chin writes:
[U]nder a principle called the "plenary power doctrine," judicial challenges to immigration and citizenship policies are strictly limited. The reverse of strict scrutiny, plenary power review is deferential in theory, virtually non-existent in fact. To this day, no person denied immigration or citizenship based on race, political belief, sex, out-of-wedlock birth, or sexual orientation has persuaded the Supreme Court that such discrimination is unconstitutional.40
To which this critic responds: so what? The unfettered right to discriminate is the essence of liberty. The people are sovereign; only they have the right to decide through the democratic process with whom they will or will not associate themselves. Only in the minds of simpletons is discrimination necessarily unconstitutional or morally reprehensible. What is unconstitutional—indeed, tyrannical—is the Professor's notion of a politburo-like judiciary imposing artificial constraints on the people's discretionary powers of sovereignty over their nation's borders—the right to regulate the qualifications of admittance and the terms of allegiance in an ever-changing world.
Conclusion
While the glitch in the language of the prevailing statute that prevented persons born in the Canal Zone from 1904 to 1937 from being U.S. citizens at birth is old news for serious students of immigration and nationality law, it was a revelation for most when in 2008 Professor Chin's disputation of the Tribe-Olson Opinion made the front page of the New York Times and the Washington Post. In the countless debates that broke out on the Internet much has been made of the undeniably serious errors with which the Tribe-Olson Opinion is riddled, but nowhere may one find a serious diagnosis of the appalling errors contained in the Professor's Note.
The Professor assumes that the ongoing historical convention regarding the nature of citizenship bestowed by the law of the bloodline is nothing more than the well-articulated argument of some, as he insists that the theoretical dictum of the Graysian concept is established law. He is blissfully ignorant of the countervailing lines of judicial opinion comprising the historical dispute between the left and the right over Congress' discretionary powers of prerogative and expatriation. For example, he believes that the decisions of Wong Kim Ark and Rogers are inherently compatible, when in fact Wong Kim Ark is the foundational rationale of the left's designs to wrest control of immigration and nationality policy from Congress and turn it over to the Court, and Rogers is the "vile insult" that stymied the left's agenda.
In order to prove that McCain was not a U.S. citizen at birth, he necessarily holds that in Downes the Court bindingly confined the Fourteenth Amendment's jurisdiction to the United States proper, but simultaneously holds that the Court's ruling in this regard was the stuff of mere dicta. Which is it? Well, the first assertion is correct, of course. Why he makes the other is a mystery.
Because he does not understand that English Common Law and its unique rule of birthright citizenship are categorically distinct things—the latter an incidental component of the former and not an original component of constitutional law—he attempts to make sense out of Congress' "failure" to bestow citizenship on the basis of the soil of the nation prior to the ratification of the Fourteenth Amendment by supposing that Congress intended to extend the common-law citizenship of his fantasies via jus sanguinis, in spite of the fact that citizenship by statute is not a component of common law. The Professor simply doesn't understand that the Court's claim in Wong Kim Ark that the British rule of birthright citizenship continued to prevail after the ratification of the Constitution is bogus. He is flailing around in the dark for a solution because of his uncritical acceptance of the historically untenable assertion of an agenda-driven Court.
Though the Professor's academic credentials evince that he is an accomplished criminal and civil rights attorney, and he competently expounds the essentials comprising the technical problem with McCain's presidential eligibility, he is not a reliable authority on immigration and nationality law. On the contrary, the failings of his work are legion—a collection of glaring contradictions and untenable assumptions. His historical research is spotty. His analyses of the pertinent scholarship inept and chaotic. In truth, it is his sophomoric obsession with racial justice, which cavalierly glosses over the demands of political and cultural stability, that gets him into trouble. He wanders off into legal territory with which he is unfamiliar, which would not have necessarily been a bad thing had he tamped down his obsession a bit and brought a map.
___________________________40"III. Senator McCain's Paths to Natural Born Citizenship, C. Restricting Congressional Power by Overruling the Plenary Power Doctrine", pg. 17.
Next article in the series: Wong Kim Ark meet Rogers
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