Give Us Liberty

Wong Kim Ark Revisted

Wong Kim Ark was decided on the Law of Nations

and not English common law!

Wong Kim Ark

Many believe the case of Wong Kim Ark (pictured above) codified English common law as our defacto guide for citizenship. For Sir William Blackstone in Article 1, Section 8, Clause 4 of his Commentaries of the Laws of England says that, “the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”

The US Supreme Court ruled in the case of Wong Kim Ark as follows,

"A child born in the United States, of parent[s] of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil[e] and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States." Justice Horace Gray ( U.S. v. WONG KIM ARK, 169 U.S. 649 (1898))

Justice Horace Gray

Although the Court discussed Blackstone and English common laws concept of legiance and the only exception of birth right citizenship found under English common law which is children born to Ambassadors of a foreign country are excluded from citizenship this ruling looks as though it was constructed under English common law.

Yet the children of the king's embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador. Sir William Blackstone ( Article 1, Section 8, Clause 4 of his Commentaries of the Laws of England )

But is this ruling based upon English Common Law or is it based upon the Law of Nations. In researching this eleven words seemed out of place with Blackstone, “but have a permanent domicil[e] and residence in the United States, and are there carrying on business.” This condition of residency is not present in Blackstone's commentaries. Yet it is found in Vattel's Law of Nations.

It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also. Emmerich Vattel (Law of Nations, Book One, Section § 215. Children of citizens born in a foreign country.)

Vattel also says that the children born to ministers in a foreign country are excluded from citizenship.

For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory. Emmerich Vattel (Law of Nations, Book One, Section § 215. Children of citizens born in a foreign country.)

The ruling has more in common with the Law of Nations than of the Laws of England. Clearly Blackstone's commentaries were used in the arguments and premise of Wong Kim Ark, especially in trying to equate the terms allegiance and subject to the juristiction, but it was Vattel's observations that formed the logic of the court's ruling.

The INS records show that Obama's father had never taken up or even applied for a permanent residence in the United States, his actions show that he had no intention to quit his native country. As such his original allegiance to the British crown were preserved and this allegience was transferred to his son, Barack Hussein Obama, Jr. at his birth.

Even if one was to pass on 14^th Amendment citizenship and an obligation of allegiance to the United States to Obama via the citizenship and permanent residency of his mother, he is still a creature of dual allegiances at birth. It is this division of allegiances at birth that disqualifies him as a natural born citizen of the United States.