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Friday, October 28, 2011

The "Natural Born Citizen" Issue Rides Again: Revisiting Wong Kim Ark

Once again, in questions posed to candidate Rick Perry, the issue of whether or not President Barack Obama is a "natural born citizen" has surfaced. It strikes me that the birther movement, our conservative answer to the truthers, has gone out of control and has derailed many.

I have said before that to prove that President Obama is not a "natural-born citizen" would require proof that his mother, Stanley Ann Dunham, was not a US citizen with eligibility to transmit citizenship, even if, by some hook or crook, it could be proven, as Obama's grandmother claimed,that Barack Obama, Jr. was indeed born in Mombassa, Kenya. Never, to my knowledge, has the birther movement offered statutory or case law proof that "natural-born" means anything other than being born a US citizen by either jus soli or jus sanguinis.

And, this is being said by an unabashed rightist who believes that the Obama presidency is a disaster.

Perhaps the most important Supreme Court case related to the issue of who is a "natural-born citizen" was Wong Kim Ark v. US (1898).

Wong Kim Ark (the Hoisan Yue pronunciation of Huang Jinde) was born in San Francisco, Chalifornia, to Chinese parents who were not naturalized as US citizens. His return to the US after a youthful visit to China was not questioned, even after passage of the Chinese Exclusion Act of 1882, due to his birth in the USA. However, in 1895, after returning from another trip to China, he was detained at San Francisco due to the fact that his parents remained subject to the Emperor of China, and were not citizens at the time of Wong's birth in the 1870's. Wong therefore sued for habeas corpus.

His case ultimately reached the US Supreme Court, which, in 1898, ruled in a 6-2 decision that Wong was indeed a US citizen. It was observed that his parents had been involved in commerce rather than official business on behalf of the emperor of China; that they were legally in the USA during the 1870's; they were subject to the jurisdiction of US law (the language of the 14th Amendment); they clearly were not connected to a hostile occupying power in wartime; and that they were clearly not of a recognized Indian tribe (then theoretically their own jurisdictions and separate "nations" rather than officially part of the USA). Wong's citizenship later became the basis for allowing three of his own sons born in China whose relationships could not be questioned to enter the US during the period of Chinese Exclusion (in those days, many Overseas Chinese maintained wives in their ancestral places in China, and only occasionally visited).

The majority (including Justice Brewer) viewed the case through the prism of US definitions of citizenship; the dissent by Harlan and Fuller involved recognition of international legal doctrine, in which citizenship definitions of foreign powers were to be recognized. At the time, renunciation of allegiance to the Chinese emperor was a capital offense in China, so the non-naturalization of Wong's parents was understandable, since their business involved occasional returns to the country of their birth, apparently. Still, the majority remained unswayed, noting that the USA, as an independent power, had the right to establish its own rules for citizenship.

The Wong case has long been understood to ensure the jus soli citizenship of children of legal immigrants or other foreign parents not in diplomatic or visiting head of state status (the children of foreign students, for example). Indeed, in view of the language of the 14th Amendment, which defines those born in the USA and under the jurisdiction thereof, it is very hard to justify the denial of citizenship to such persons.

The issue of whether the Wong decision allows the US-born children of those illegally in the USA to be counted as citizens has been disputed in legal journals. However, until now, it does not seem that the citizenship of US-born children of illegal immigrants has been challenged either by statute or case law. Given that the illegal parents might be charged with violation of immigration law if apprehended, it would be clear that such persons are indeed under the jurisdiction of the USA!

As for our president, it seems that as the US-born child of a US citizen parent (Stanley Ann Dunham), Barack Obama's citizenship cannot be questioned; and it is unlikely that anyone would be ready to deny citizenship to countless out-of-wedlock children sired by visiting foreigners (tourists, students, etc.) and born to US citizen mothers. Further, given that the requirements for jus sanguinis citizenship to children born abroad to US citizen parents (the citizen parent needs to have been resident in the USA for five years, two of which have to have been over the age of fourteen years) would have guaranteed Obama citizenship even if Stanley Ann Dunham had given birth to him on a trip to Kenya. And, can the birthers reasonably claim that anyone but the American woman Stanley Ann Dunham was Obama's birth mother?

So, Uncle Cephas urges his conservative brethren to focus on Obama's increasing the national debt, ill-advised Libyan intervention, bailouts, radical connections, having never met an abortion procedure he didn't love (such as partial birth abortion, which he defended as a state senator in Illinois), and being beholden to the whole lifestyle liberalism crowd. Please, leave the issue of Obama's citizenship alone.

However, Uncle Cephas is ready to entertain any evidence from standing American statute of case law that may define "natural-born citizen" as something other than a person born a US citizen by either jus soli or jus sanguinis.

1 comment:

  1. You might want to take another look at your INA and focus on a couple of things relating to the PURELY HYPOTHETICAL case of someone being born on Pres. Obama's date of birth, to a U.S. citizen mother with Stanley Dunham's date of birth, if not born on U.S. soil.

    The current citizenship transmission requirements were amended into their current form in 1986. In 1961, the former Miss Dunham could not have mathematically managed to produce a U.S. citizen child abroad (if the publicly available dates of birth for herself and her well-known son are correct).