Note: This post is an adaptation (with some additions, mostly for context) of one single post from an entire online debate with “birther” lawyer Mario Apuzzo. (Unfortunately, as an adaptation of an online post in a debate against an unreasonable opponent, it may not be as readable as some of my other writings. Apologies for that.)
It summarizes some of what the Supreme Court said about the meaning of “natural born citizen” in the 1898 case United States v Wong Kim Ark. It’s been added here to make clear that the two-citizen-parent claim is effectively dead.
Will it continue as a fringe political movement? Are there people who will sincerely believe it? Undoubtedly, for as long as there are charlatans and grifters and sincere but sadly deceived people willing to push the claim, and eager followers who want to believe it. But from a factual, historical, legal point of view, the theory doesn’t have a leg to stand on. Legally, as you will see in this article, the idea was officially laid to rest back in 1898.
The full debate with Mr. Apuzzo can be seen here.
In US v. Wong Kim Ark, the US Supreme Court Established a Binding Precedent as to Who Is a Natural Born Citizen.
Lawyers Leo Donofrio and Mario Apuzzo, and others following in their footsteps, have recently promoted the claim that birth on US soil plus two citizen parents at birth are Constitutionally required to make a person a “natural born citizen” and eligible to run for President.
As a key part of their arguments to the public, they’ve repeatedly claimed that the 1898 Supreme Court case US v Wong Kim Ark (widely recognized by legal scholars and courts as a precedent) ruled that young Mr. Wong, born of Chinese parents in San Francisco, was a “citizen” — but that the Court supposedly “stopped short of” finding him to be a “natural born citizen.”
They’ve been able to plausibly make this claim because the Court was asked to determine whether Wong Kim Ark was a citizen… So at their very final conclusion the Court simply said (in essence) “Yes, we find that Wong Kim Ark is a citizen.”
Because Wong Kim Ark was only trying to avoid being deported — and not running for President — they didn’t deliberately and explicitly spell out Wong’s future Presidential eligibility (he was only about 25 years old in 1898) when it came time for their grand finale pronouncement. That is, they didn’t make it some big point to say, “We hereby find that Wong Kim Ark is quite specifically a natural born citizen, and will therefore one day be eligible to run for President of the United States.” There simply was no reason for them to.
Now if Mr. Wong had been running for President, I haven’t the slightest doubt that they would have spelled it out explicitly, using the magic phrase in their summing up. They certainly did conclude that he was a natural born citizen, and they clearly told us so. But Wong Kim Ark wasn’t trying to get elected President. He just wanted to go peacefully back home to San Francisco and work as a cook without getting hassled and deported to China by the US government — which he was fortunately finally able to do.
As we will see, the claim made by the birther lawyers is simply not true. The Court very clearly found Wong Kim Ark to be a natural born citizen, in their arguments leading up to that final pronouncement declaring the resolution of the specific question at hand.
Let’s look at two key passages from the ruling that establish as fact that the Court found Wong to be not only a “citizen” but also “natural born” — and therefore a natural born citizen.
I. Quoting the 1898 Supreme Court Case US v Wong Kim Ark:
“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, 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.
III. 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.”
1. The Court in this brief passage therefore made the following CLEAR AND UNAMBIGUOUS STATEMENT:
Every child born in England of alien parents — going back for centuries — 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.
2. The phrases “natural born citizen” and “natural born subject” were clearly and undeniably used INTERCHANGEABLY in the early United States. And here is solid PROOF of that.
As if that were not enough, the Supreme Court in Wong Kim Ark also approvingly quoted Justice Gaston of the Supreme Court of North Carolina, in his statement that the term “citizen” is “PRECISELY ANALOGOUS” to the term “subject:”
“Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term ‘citizen,’ as understood in our law, is precisely analogous to the term ‘subject’ in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before was a ‘subject of the king’ is now ‘a citizen of the State.’”
3. The Court in the brief passage above also made the following CLEAR AND UNAMBIGUOUS STATEMENT:
“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.”
The Supreme Court in US v Wong Kim Ark therefore CLEARLY stated that THE RULE IN FORCE IN THE ENGLISH COLONIES BEFORE INDEPENDENCE, IN THE UNITED STATES AFTER INDEPENDENCE, AND IN THE UNITED STATES AFTER THE ESTABLISHMENT OF THE CONSTITUTION, WAS THAT EVERY CHILD BORN ON OUR SOIL OF ALIEN PARENTS (unless meeting those limited exceptions) WAS A NATURAL BORN CITIZEN OR SUBJECT HERE.
There are those who continue to claim that the Wong Court failed to find that Mr. Wong was a natural born citizen. But given the words of the Court, any continued claim to this effect is simply false. But wait… there’s more.
II. Quoting US v Wong Kim Ark again:
“The foregoing considerations and authorities [that is, the Court’s entire discussion to date] irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, ‘strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;’ and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides…”
Let’s condense that and pull out the most relevant parts:
The allegiance TO THE UNITED STATES of every citizen or subject of another country, while domiciled here, is “strong enough to make a natural subject,” and “IF HE HATH ISSUE [a CHILD] HERE, THAT ISSUE [or, that CHILD] IS A NATURAL-BORN SUBJECT” [quoting the exact words of the English Lord Coke from the year 1607 or, in United States terms — a NATURAL-BORN CITIZEN.]
It is therefore CLEAR and UNDENIABLE that the United States Supreme Court found Wong Kim Ark to be not ONLY a “citizen” — they ALSO found — and they stated it as an “IRRESISTIBLE” “CONCLUSION” — that Wong Kim Ark was “NATURAL BORN.” 
And the majority of the Court (6 to 2) stated that, clearly, not once but twice.
The Supreme Court CLEARLY found that Wong Kim Ark was a NATURAL BORN CITIZEN.
III. Furthermore, even Justice Fuller in the dissent in the case recognized that the majority had found Wong Kim Ark to be a natural born citizen and therefore eligible to be President! He wrote, in that very dissent:
“I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
All of these being the case, it is PERFECTLY CLEAR that the Supreme Court in US v Wong Kim Ark found young Mr Wong to be NOT ONLY “a citizen,” but a NATURAL BORN CITIZEN. They tell us not once, not twice, but three times and in three different ways, that the ruling is that Wong Kim Ark is a natural born citizen and/ or eligible for the Presidency. And on this point, both the majority and the minority of the Court agreed.
To deny the Court’s plain words and state that they made no such clear statement is simply to lie.
The Court’s Statement In this Regard Is Binding Legal Precedent.
And since this entire discussion was clearly central to the question before the Court, this was all part of the rationale for the decision — or, to use the formal legal term for it, the “ratio decidendi.” [For much more information on this topic, see the full discussion of what is and is not binding legal precedent in my articles on Minor v. Happersett.]
As such, by the long-established and fundamental rules of our court system, this determination serves as a binding precedent regarding who is a natural born citizen. And since according to the Constitution, only natural born citizens are eligible to the Presidency, it therefore serves as binding precedent for who is eligible to run for President of the United States!
But is this really what the Court intended? Did they really intend to hand down a ruling that a Chinerman was eligible to run for President of the United States?!? Did they really understand what they were saying here??
ABSOLUTELY they did. And ALL of the members of the Supreme Court understood that.
We’ve already seen that the two dissenting Justices objected partly on the very grounds that the majority was finding Wong Kim Ark — a Chinerman — eligible to run for President.
But that very majority mentioned the implications of their ruling, too. As they noted:
“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.’ By the original Constitution, every representative in Congress is required to have been ‘seven years a citizen of the United States,’ and every Senator to have been ‘nine years a citizen of the United States.’ and ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President.’“
They absolutely knew they were ruling Wong Kim Ark — and every other person, Chinese or otherwise, born in the US of non-citizen parents (unless meeting a few narrow exceptions as we discussed above) eligible to run for, and be elected, President. They therefore knew they were setting a binding precedent not only for citizenship, but also — by extension — for Presidential eligibility.
This binding precedent means that until and unless the Supreme Court ever overturns their own decision in this case (which almost never happens, and honestly never would happen in a 6-2 decision in which the dissent was, to be frank, poorly supported), or until and unless the Constitution itself is changed through amendment, US courts are required to rule similarly in all similar cases.
This also means that Barack Obama, Bobby Jindal, and Marco Rubio are all entirely eligible to run for and serve as President.
And this precedent explains why challenges brought on the “two citizen parent” grounds against Mr. Obama have been repeatedly dismissed by state and federal courts who’ve heard the question. It also explains why no challenge brought on these exact grounds against any other candidate is ever going to prevail in the US court system. And it explains why you may have grown up hearing (as I did) that any kid born in America can grow up to be President.
Because the United States Supreme Court has already decided the question — 114 years ago.
For the entire debate with Mario Apuzzo that this post is adapted from, see here. This debate reveals literally a dozen different verifiably false claims made by Mr. Apuzzo. Many of these same claims have also been made by Leo Donofrio and other “birthers.”
For a summary of conclusions on nearly a year of investigating the Obama and Constitutional eligibility claims, see this post. Finally, see also this “wrap-up” post.
If you’ve already read the footnote below, you might want to skip to the comments.
 The birthers are fond of completely ignoring the plain language just mentioned, that states clearly that a person in Wong Kim Ark’s situation is “natural born.” In fact, birther lawyer Leo Donofrio performed radical surgery on the passage I’ve quoted, selectively omitting the one phrase in that passage that clearly stated that such a child was natural born!
Donofrio then took that freshly-gutted quote and used it as the basis for an entire blog post claiming the exact opposite of the truth, titling his post: “Justice Horace Gray Clearly Indicated Wong Kim Ark Was Not a Natural Born Citizen.”
He did so by taking the next phrase and claiming it says something it did not say.
The next phrase is: “and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen…”
Note first of all that we don’t need this phrase to establish that Wong Kim Ark, and other children similarly born on US soil of non-citizen parents, is natural-born. The phrase before this one — the one that Leo Donofrio handily deleted — has clearly established that for us.
Note secondly that Mr. Binney didn’t say that the US born child of an alien parent is not a natural-born citizen. He simply said that such a child was “as much a citizen as the natural-born child of a citizen.”
This is a lot like saying my neighbor’s tomatoes are just as nutritious as the organic tomatoes from the grocery store. Is that a pronouncement that my neighbor’s tomatoes are NOT organic? No. They might well be. Or, they might not. The sentence doesn’t tell us. It simply tells us that they’re just as nutritious.
And yet both Donofrio and Mario Apuzzo make the false claim that Binney was here saying that the US-born child of an alien parent is NOT a natural born citizen.
Now it turns out that we know the actual doctrine of prominent lawyer (and former United States Representative) Horace Binney regarding the natural-born citizenship status of children born on US soil of non-citizen parents — because Binney himself tells us, in the exact same essay quoted by the Supreme Court. Horace Binney tells us, clearly, that such a child is also a natural born citizen.
We didn’t actually need his help — but Mr. Binney himself confirms what the Supreme Court has already told us in this case: If you’re born in America, your parents don’t have to have been citizens for you to be a natural-born citizen of the USA.
Pingback: Horace Binney Directly Refutes the Mario Apuzzo/ Leo Donofrio Lie that it Takes Two Citizen Parents to Make a Natural Born Citizen | Investigating the Obama Birth Certificate Mystery
As noted earlier, it’s a most telling thing that this article — on the SCOTUS case that actually delved deeply into the meaning of “natural born citizen” in a case involvling a person born in the U.S. to alien parents — has gotten no replies. Notice the deafening silence here compared to the Birther response on the articles involving purely historical sources.
Though what is observed here (or, more precisely, what isn’t here) is consistent with the dialogue you referenced above (http://www.ballot-access.org/2012/03/20/larry-klayman-files-presidential-qualifications-lawsuit-in-florida/comment-page-3/) I note your Post #21, in which you cite to numerous specific provisions of the WKA opinion, went unanswered as well.
Here I’ll add a few points in supplement of your article, noting the various ways Justice Gray in WKA analyzes the meaning of “natural born citizen” using a framework that is antithetical to the Birther analysis.
1. The Meaning of “NBC” is Integral to the Court’s Analysis.
At the outset of the opinion in Wong Kim Ark, Justice Gray notes:
The Birther world-view sees a person in Mr. Wong’s position as NOT a natural born citizen by virtue of Minor v. Happersett. If Justice Gray believed Minor issued a definition of “natural born citizen,” as Birthers claim Minor did, it would make no sense for Justice Gray to explore the meaning of NBC at the outset of his opinion in WKA. And this is true for two reasons: 1) NBC, being an Article II term, would then have absolutely nothing to do with Mr. Wong, given his case tested his citizenship status, and 2) it would be utterly silly for Justice Gray to undertake — though he did — extensive analysis of the common law meaning underpinning “natural born citizen.” Why does he not just cite to Minor and leave it at that? Rather, that Justice Gray does extensive analysis of the common law meaning of “natural born citizen” indicates very clearly that the WKA court understood Minor did not “define” the term in the context of a person having alien parents. The Minor case didn’t present that question. But the Wong Kim Ark case DID present that question. Hence, Justice Gray explores the meaning of “natural born citizen” as it relates to someone like Mr. Wong.
2. Justice Gray Indicates the Semantic Underpinning of “NBC” is to be Found by Reference to the English Common Law.
The Birther position is that the “common law” underpinning of “natural born citizen” is to be understood by reference to an “American” common law. Justice Gray writing for the majority in WKA takes a different approach:
The contrast between the Birther methodology and the methodology of the U.S. Supreme Court in Wong Kim Ark is immediate and stark. In undertaking analysis of the meaning of “natural born citizen,” Justice Gray states explicitly courts should understand the terminology by reference to English common law. He makes no reference at all to any notion of a unique “American common law.”
3. Justice Gray Explicitly Rejects the Argument that the “Law of Nations” has Provided a Different Rule of Understanding.
Further in the opinion, after comparing the English jus soli rule of “natural born subject” and noting that the SAME RULE has been in force in America since the founding of the nation, Justice Gray takes up the argument that the “law of nations” indicates that a different rule should apply based in part on jus sanguinis:
It was Justice Fuller writing in dissent who appeals to de Vattel. The majority opinion clearly rejects the argument that Vattel’s citizenship view holds sway.
4. The Fourteenth Amendment Incorporated the Common Law Rules, It Didn’t Create a New Citizenship Category.
Contrary to the Birther position that some new “Fourteenth Amendment Citizen” classification was created, Justice Gray makes clear the Amendment did not create (nor limit) the citizenship rules that existed under the Common Law. Rather, it was declaratory in operation, making the citizenship rules that were previously operative as to white persons equally operative as to persons of color. For Justice Gray makes abundantly clear that prior to the Amendment, U.S.-born children of white aliens were “native born” citizens:
“Native-born” and “natural born” are interchangeable terms (and they have been used interchangeably, even by authorities that Birthers cite to, such as Quintilianus, de Vattel, and Blackstone). So it’s undeniable from this passage that — even before enactment of the Fourteenth Amendment — there were “natural born citizen” of alien parentage. It’s just that such was recognized as to white persons . The Fourteenth Amendment made the same true as to children of African and Asian descent (as in the case of Mr. Wong), but it did not create some new category of citizenship that hadn’t previously existed.
5. Justice Gray Treats the Question of NBC Under the Common Law and the Question of “Born in … the United States, and Subject to the Jurisdiction Thereof” as Being the Same Question.
That this is true can be observed by noting (as Mr. Woodman notes above) what Justice Gray concludes about each matter. As to the common law meaning of “natural born,” he writes:
Then, speaking of the meaning of the enactment of the Fourteenth Amendment, he writes:
So the Supreme Court makes clear that the Fourteen Amendment didn’t create some new “Fourteenth Amendment Citizen” category (a term neither WKA nor any other court has ever applied to any person). Rather, Justice Gray makes clear that the Amendment incorporates formally the common law meaning of “natural born citizen” as to the same jus soli rule and excepting the same categories of persons from that rule. So, per Justice Gray, “natural born citizen” and “born . . in the U.S. and subject to the jurisdicdtion thereof” mean the same thing! So, indeed, under the Supreme Court’s analysis, Mr. Wong was at once a person “born . . . in the U.S and subject to the jurisdiction thereof” under the Fourteenth Amendment and a “natural born citizen” under the common law rules which the Fourteenth Amendment incorporated, because Justice Gray defines those two concepts identically.
The Wong Kim Ark decision is fatal to the Birther “two citizen parent” argument. It’s apparent why they ignore pertinent questions about specific statements made by Justice Gray and quickly try to move the discussion to their preferred historical sources.
Thanks for your excellent comments, which essentially expand what was always a very brief article on US v Wong Kim Ark that only ever hit the high points.
As you’ve noted, there is a LOT more in that case than what I’ve written on. I simply stopped there because I felt that even that much was fatal to the birther claims.
Your last paragraph deserves repeating, in bold:
The Wong Kim Ark decision is fatal to the Birther “two citizen parent” argument. It’s apparent why they ignore pertinent questions about specific statements made by Justice Gray and quickly try to move the discussion to their preferred historical sources.
In the appellant brief filed by the US government in the Wong Kim Ark case,
“The question presented by this appeal may be thus stated: Is a person born within The United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen, and on that ground holding him exempt from the provisions of the Chinese exclusion act and permitting him to land.”
Judge Morrow of the District Court never ruled Wong Kim Ark as natural born, in fact that term is nowhere in his decision.
Why did the US Government assume that Judge Morrow’s ruling made Wong a “natural born citizen”?
In his dissenting opinion Chief Justice Fuller states that the majority of the court is using English Common Law to define the term “natural born citizen”.
Why doesn’t he remind them of the binding precedent of the Minor decision?
Also Chief Justice Fuller writes,
“Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
Why does he say that the majority opinion makes someone like Wong eligible to be President?
Why does he not remember that the Minor decision would prevent someone like Wong from being President?
In the District Court ruling, Judge Morrow wrote,
“The question is an important one, not alone from an abstract point of view, but because of the consequences a decision unfavorable to the petitioner would involve; for, if the contention of counsel for the government is correct, it will inevitably result that thousands of persons of both sexes who have been heretofore considered as citizens of the United States, and have always been treated as such, will be, to all intents and purposes, denationalized remanded to a state of alienage.”
So is Judge Morrow say that ynder US law before 1898, people born in the US to alien parents were considered citizens?
Thanks for being willing to actively educate TJ McCann. From his behavior so far, I suspect it’s probably going to be kind of like trying to teach algebra to a duck, but you certainly get credit for trying. 😉
I was also hoping to drag his a$$ over here where it belongs. We’ll see if he takes the bait.
Sometimes people get confused by what they believe the law should be with what the law is. Judge Morrow summed it up in his decision in Wong Kim Ark,
“Counsel for the United States have argued with considerable force against the common-law rule and its recognition, as being illogical, and likely to lead to perplexing, and perhaps serious, international conflicts, if followed in all cases. But these observations are, obviously, addressed to the policy of the rule, and not to its interpretation. The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in declaring it to be the law against controlling judicial authority. It may be that the executive departments of the government are at liberty to follow this international rule in dealing with questions of citizenship which arise between this and other countries, but that fact does not establish the law for the courts in dealing with persons within our own territory.”
[Moderator’s note: The contents of your post has been deleted, due to your failure to respond to the request that you post discussion of US v Wong Kim Ark in a thread appropriate to that case, such as this one.
It’s really not that hard, TJ. Look at the guide to the site, find the article that seems to really discuss what you want to talk about, go and read the article and subsequent commentary, and then make relevant comments.]
[Additional moderator’s note, 2/4/2013: I was rereading this article today (months after retiring from this issue) and noted that the comments on this page seem slightly messed up. I don’t know exactly why this is the case. But it looks to me as if some comment by TJ McCann might have gone missing, and another might be misplaced here.
In any event, we conducted an extensive debate with Mr. McCann in October 2012, centered in the article titled “The ‘Grandfather Clause’ Regarding the ‘Natural Born Citizen’ Requirement of the Constitution — Was It Ever Needed or Used?” Readers who might be interested in hearing what Mr. McCann had to say can begin with that article and find extensive airings of his views.]