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Coincidental comments

I found a couple of seemingly unrelated comments on the site this morning. The first was:

This has been a long enduring disagreement. For those that have not read it. The Dissent on the Wong Kim Ark case.

and the second:

President Chester A. Arthur in 1880 had a similar problem with questions of his citizenship, …

As many of you recall, Wong Kim Ark was born in the United States to Chinese parents at a time when the law precluded the Chinese from becoming citizens. Wong left the US and when he returned he was refused admission because of provisions in the Chinese Exclusion Act. Wong argued that the Act did not apply to him because he was a US Citizen. The Supreme Court agreed on a 6-2 vote, creating an enduring precedent of citizenship for the children born in the United States to alien parents.

The trivial connection between the two comments is the fact it that it was none other than President Chester A. Arthur who signed the Chinese Exclusion Act in 1882. But I want to take a longer road relating the Dissent in Wong Kim Ark to questions about Arthur’s citizenship.

Let’s return to the Dissent in Wong. Justices Harlan and Fuller dissented. The dissenters asserted that the Constitution gives the Congress the authority to adopt a uniform rule of naturalization, and the President, with the consent of the Senate, to make treaties. Fuller states:

Did the [14th] amendment operate to abridge the treaty-making power, or the power to establish an uniform rule of naturalization?

I insist that it cannot be maintained that this Government is unable, through the action of the President, concurred in by the Senate, to make a treaty with a foreign government providing that the subjects of that government, although allowed to enter the United States, shall not be made citizens thereof, and that their children shall not become such citizens by reason of being born therein.

Now back to Arthur. The issue raised by a few contemporaries of Chester A. Arthur was a rumor that he had been born in Canada. It is true that at his birth Chester Arthur’s father was an British subject (Irish) , only becoming naturalized later; no one seemed to think this was an issue at the time. I did a good bit of research into the claims that Arthur tried to hide his father’s naturalization status and concluded that the claims were unfounded. The naturalization document for Arthurs’ father appear among the President’s papers (despite the fact that he burned others). I also concluded that the very person pushing the “born in Canada” story, Democrat lawyer A. P. Hinman, was fully aware of the naturalization status of Arthur’s father, but never raised it as an objection, based on an entry in his book: How a British Subject became President of the United States (1884). Hinman cites in his book a letter from  Senator Thomas F. Bayard (pictured below) in which the naturalization of a father after the birth of the son is addressed:

Sen. Thomas F. Bayard photoSenate of the United States
City of Washington, January 10th, 1881.

A. P. HINMAN, E sq., New York.

DEAR SIR :-In response to your letter of the 7th instant- the term” natural-born citizen,” as used in the Constitution and Statutes of the U. S., is held to be a native of the U. S.

The naturalization by law of a father before his child attains the age of twenty-one, would be naturalization of such minor.

Yours respectfully,
T. F. BAYARD.

Senator Bayard had a distinguished political career including service as the US Secretary of State and Ambassador to Great Britain. It is as Secretary of State that we find the connection (Bayard biography at Harper’s Weekly):

When Chinese workers in Rock Springs, Wyoming, were attacked in 1885, killing 28, the Chinese government demanded that monetary damages be awarded by the American government. Bayard denied the federal government’s legal responsibility for the acts of private citizens, but said that the president could make such a request of Congress as an act of generosity. The American government paid the Chinese an indemnity, and Bayard negotiated a treaty which banned the importation of Chinese workers for 20 years. The Chinese government refused to ratify the treaty, so the American Congress responded with the Scott Act of 1888 which unilaterally enacted the terms of the treaty (and extended the terms of the 1882 Chinese Exclusion Act).

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3 Responses to Coincidental comments

  1. avatar
    Greenfinches April 22, 2012 at 3:11 pm #

    So one of the WKA dissenters maintained that the President and Congress could easily make a treaty saying that the ‘born on soil’ would not apply? Sorry, I am not persuaded that this would be so simple.

    If the common law says ‘born on soil = NBC’, which it plainly did, then I would expect any provision of law or treaty that sought to override this to be unambiguous, to survive any challenge.

    But to an extent, does it matter here? Is there any legislation or any treaty which may apply to the current President’s circumstances, seeking to override the common law? Surely we would have hear of it by now, from one of the many mighty birther legal brains!?

  2. avatar
    bovril April 22, 2012 at 3:47 pm #

    The part (well…one of them) that annoys me about the whole BIrfoon WKA dissent part is plainly they NEVER read it.

    First the Birfoons say that the SC ruling in WKA only made him a citizen and not an NBC, then they babble on that the dissent is the real part.

    Here’s what the Chief Justice said in the dissent…

    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.

    So, the SC not only stated that WKA was an NBC, the DISSENT is the part that shows the SC was wholly aware what the ruling meant, to whit, WKA could have run for president.

  3. avatar
    Rickey April 22, 2012 at 10:26 pm #

    bovril:

    So, the SC not only stated that WKA was an NBC, the DISSENT is the part that shows the SC was wholly aware what the ruling meant, to whit, WKA could have run for president.

    And, as we have discussed before, the government’s SCOTUS brief in WKA conceded that if he were found to be a citizen it meant that he was eligible to be President.