In examining the question of whether President Obama is Constitutionally disqualified to be President, we looked first at the text of the Constitution, and then examined several Supreme Court cases dealing with citizenship issues–Minor v. Happersett, The Venus, and Shanks v. Dupont. We left the most important case, United States v. Wong Kim Ark, 169 U.S. 649 (1898), for separate consideration. To this point, we recognized that a simple reading of the Constitution suggests that the phrase “natural born Citizen” means someone who was a citizen from the moment of his birth, not, as the “Birthers” insist, someone born within the geographical boundaries of the United States. We also recognized that none of the cases considered explicitly rejected this, and that they made it clear that it was difficult to lose your citizenship, even if you left the country and married a foreign national.
In Wong Kim Ark, the son born in the United States of Chinese resident alien parents visited China and was refused re-admission into the United States under a statute passed which barred immigration of Chinese laborers. He claimed he was a Citizen under the 14th Amendment, and the Court agreed.
Although it was all dicta (statements made in court decisions that are illustrative but not binding on future decisions), the court did a review of who is and is not a citizen, raising a number of peculiar points that are very important. The key one is that the Constitution makes people citizens if either they are born within the geographical boundaries of the United States, or they are covered by naturalization laws passed by Congress. It also appeared that those laws had changed a number of times in the nineteenth century.
There is a caveat to this. The Court specifically excluded the children of foreign diplomats, on the basis that they were technically under the jurisdiction of their own government and not that of the United States. Further, it is clear that it covers children of parents legally residing within the United States in long-term domicile while conducting business. It has long been assumed that it covers so-called “anchor babies”, children of persons in the United States briefly and/or illegally, but there is nothing in the case that does so and barring a decision otherwise by the Supreme Court lower courts would be free to rule that such children are not citizens, and thus legislatures at both the state and federal level could create laws treating them as non-citizens, at least until the matter was addressed.
Of particular importance, Wong Kim Ark cited Dicey’s Digest of the Law of England with approval, quoting that “‘Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.” It then quotes from a case which cited Blackstone to the effect that “a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance….” It seems clear that the statement in the Constitution is not related to where the child is born but whether he is a citizen of the United States at that moment.
As to who that covers, Wong Kim Ark recognized multiple statutes through the nineteenth century defining which children born outside the United States received citizenship at birth. Under these statutes, the definition of who was included changed slightly over time, sometimes covering a child if both of his parents were citizens, sometimes if his father was. Thus our answer in the present case can only be found by finding the present statutory definition–which we will do in our next article.