Birth of a President --- and a Fellow Named Wong Kim Ark

In 2008, the birthers, in full throttle, were in hot pursuit of any case or controversy they could find to stop the man. They wanted him off the ballot completely. Or, if that failed, they wanted him at least ruled ineligible to become President of the United States. The controversy had been stoked by media reports, including in the New York Times. It finally led to an inquiry in Washington, D.C., in an elegant conference room. The Chairman of the Senate Judiciary Committee, Senator Patrick Leahy, D-VT, banged the gavel and officially opened a congressional hearing. The burning question of the day was to inquire into the birth and constitutional eligibility for the presidency of John Sidney McCain III.

In April 2008, Jake Tapper, of ABC News, reported that:

With questions - however serious - about whether Sen. John McCain, R-Ariz., is eligible to run for president since he was born outside U.S. borders on an American Naval base, Sens. Patrick Leahy, D-Vermont, the chairman of the Senate Judiciary Committee, and Sen. Claire McCaskill, D-Mo. today introduced a non-binding resolution expressing the sense of the U.S. Senate that McCain qualifies as a "natural born Citizen," as specified in the Constitution and eligible for the highest office in the land. Co-sponsors include Sens. Hillary Clinton, D-NY, and Barack Obama, D-Illinois; Leahy said he anticipates it will pass unanimously.

Shortly thereafter, the Washington Post declared: "The bad news is that the Senate resolution is a non-binding opinion that fails to resolve one of the murkiest, untested areas of the U.S. constitution."

What was learned about birtherism from the McCain Birthers

The Senate's non-binding resolution did not stop the McCain birther movement. Questions continued to swirl. Some claimed that John McCain was "not born in the Canal Zone, not born in military hospital, not born on U.S. soil." Some asked, "Why is no one questioning McCain's birth certificate?" The Cleveland Leader wondered, " If McCain gets in without clarification, will we see a President Schwarzenegger?"

Other McCain birthers warned: "We need to sort [McCain's eligibility as a natural-born citizen] out now BEFORE the election, or the outcome of the election could be in doubt for months if it has to be argued before the Supreme Court. We don't need that kind of crisis during wartime in this country. We need to answer this question NOW!"

While the McCain birthers were still debating whether McCain was born in the Panama Canal Zone, at a U.S. Naval Hospital, or on foreign soil, it was clear that McCain's status as a natural-born citizen also involved the citizenship of his parents. (McCain's father was an Admiral in the U.S. Navy and his mother, Roberta, had accompanied her husband to Panama on assignment.) That is, regardless that there may be a controversy as to a person's place of birth, his status as a natural-born citizen also involved reference to the citizenship status of his parents.

Determining place of birth -- don't try this at home, folks

Had John McCain won the presidency, clearly the McCain birthers today might still be debating whether a U.S. Naval Hospital was or was not de facto U.S. soil and still advocating, as 1968Camaro80 did, that "John McCain's mother, Roberta McCain . . . can be called to testify as to where her son John was born and name the hospital and the doctor who delivered him."

One can only imagine what this ongoing debate about the presidential eligibility of President McCain might be like if, in addition to questions about his place of birth, McCain had had dual citizenship at birth -- for example, had he been born to a mother who was a U.S. citizen and father who was a citizen of Panama. (And never mind what brouhaha might be engendered if, decades later, Cindy McCain referred to Panama as her husband's "home country.")

Actually, we don't need to imagine. That hypothetical scenario about the McCain birther controversy encompasses the very real, and very stubborn, controversy surrounding the eligibility under the Constitution of Barack Obama to serve as President of the United States.

Wong Kim Ark: does birthplace rule?

Although congressional hearings were held on the issue of John McCain's eligibility to serve as President, the result was a non-binding resolution based on the musings of two prominent lawyers. The fact remains, however, as John W. Dean, writing in 2004, says: "No one knows exactly what the nation's Founders had in mind when they wrote that "No person except a natural born Citizen ... shall be eligible to the Office of President." . . . . In fact, there are conflicting holdings that only further compound the problem of understanding this clause. "

This lack of clarity does not mean that there is a shortage of discussion on various legal precedents. One case that is a regular in birther discussion is United States v. Wong Kim Ark, a case decided by the United States Supreme Court in 1898.

Wong Kim Ark is said to hold that anyone who is born in the United States is not only a citizen (by operation of positive law), but also a *natural-born citizen (by operation of common -- or natural -- law). In other words, the argument goes that place of birth determines natural-born citizenship because . . . that's just the way it is.

Not surprisingly, however, the U.S. Supreme Court has not treated natural-born citizenship as solely dependent upon place of birth. The Supreme Court has not said that, so long as a child of any alien is born in the U.S., the Constitution recognizes that child as a natural-born citizen. Certainly, Wong Kim Ark is touted for that blanket proposition. It's also touted for the follow-on conclusion that, if a candidate is born in the United States, he's eligible to become President. But, as the McCain Birthers also found out, a close look at Wong Kim Ark shows that the role played by place of birth in determining natural-born citizenship is hardly open and shut.

What does it mean to be a "friend" of the Sovereign?

American law on natural-born citizenship was descended from English Common Law. Like today's jawboning about Wong Kim Ark, the lazy reading of English Common Law has led to the popular meme that children of aliens born within the kingdom were British subjects. English law, however, never stated such a rule as to the children of "all" aliens. In addition to the predictable exceptions, such as for those aliens on official duty of another government, Blackstone himself stated that the law applied only to "aliens in amity" with the Crown.

What does it mean to be "in amity"? First, as Calvin's Case (1608) sets out, amity is the opposite of enmity. Enmity means to be positioned as an enemy. So, at the minimum, being "in amity" means not being an enemy, but being a friend of the king. Obviously, that is a question of fact. The bottom line is: to determine if an alien was "in amity" or "in enmity" requires an examination of the alien's circumstances. In particular, it requires review of the nature of his legal and practical ties, or lack thereof, to the British Empire.

American jurisprudence on natural-born citizenship has not focused explicitly on whether the alien parents in question were "in amity" with the United States. Nevertheless, the Supreme Court's analysis embraced this very inquiry. In Wong Kim Ark, for example, particular facts about the alien parents' ties to the United States were integral (material) to the Court's holding.

Wong Kim Ark: as always, facts matter

Again, Wong Kim Ark is said to stand for the simple proposition that birthplace rules. Ark, so the meme goes, holds that children born in the United States, even to alien parents, are automatically natural-born U.S. citizens. But this is the lazy man's reading. Far from establishing a blanket rule that any child born in the U.S. is a natural-born citizen -- far from ruling that mere place of birth trumps all other circumstances -- the Court in Ark began its analysis with a thorough and careful review of the facts regarding Wong Kim Ark's actual ties to the United States, beginning with the ties of his parents.

In short, the Court proceeded to set out, review, and rely upon facts about Wong Kim Ark's alien parents that were relevant to the question of what was known in English law as being "in amity" with the sovereign. After that, it's Law School 101 that, whenever the Court in Ark talked about "aliens," it meant aliens similarly situated to the alien parents of Wong Kim Ark. In other words, for Ark to control a future case, not only would the child have to be born in the United States, but the legal and practical ties of the child's parents to the U.S. would have to be similar to those of Wong Kim Ark's parents.

What were the legal and practical ties of Wong Kim Ark's alien parents to the United States?

To establish the legal and practical ties of Wong Kim Ark's alien parents to the United States, the Supreme Court relied on three main facts. First, the alien parents of Wong Kim Ark had "permanent domicile" in the U.S. Secondly, the alien parents of Wong Kim Ark were "permanent residents" of the U.S. Finally, the alien parents of Wong King Ark were "engaged in business" in the U.S. Wong Kim Ark's alien parents were not merely permanent legal domiciliaries, and merely permanent legal residents, of the U.S. on paper. By running their own business, they also were pursuing ongoing, practical, personal and permanent engagement and investment in the life of their community in the U.S. In other words, they were living in the United States very much like United States citizens.

Permanent legal domicile, permanent legal residence, ongoing pursuit of a business and personal investment of time, sweat and treasure: Clearly, these three material facts about the alien parents add substantially more to Wong Kim Ark's quest for recognition as a natural-born citizen than his mere place of birth.

In fact, the Ark Court placed so much weight on the fact that Wong Kim Ark's alien parents were legally and permanently domiciled in the United States, permanent legal residents of the United States, and even engaged in their life's business in the United States, one could argue the Court viewed the parents almost as de facto citizens. This de facto citizenship status of Wong Kim Ark's alien parents, plus his birth in the United States -- as well as his own personal ongoing, continuous and permanent ties to the United States -- all formed the basis for the Supreme Court recognizing Wong Kim Ark as a natural-born citizen.

Change the facts, change the outcome?

What if the facts of the case in Wong Kim Ark had not supported a finding (at least implicitly) that the alien parents had de facto citizenship status? Another way to ask this question is: Would the Supreme Court have ruled the same way in Wong Kim Ark had his parents not been permanent legal domiciliaries, permanent legal residents, and actually engaged in business in the U.S.?

What if Wong Kim Ark had been born in San Francisco while the cruise ship his parents were vacationing on put in to port for one week?

What if the parents of Wong Kim Ark took him to China every year for 6 months, where he attended school and integrated into Chinese culture?

What if the parents of Wong Kim Ark had never permanently resided in the United States and were instead living in China and pursuing a business there?

Would these fact changes have changed the holding in Wong Kim Ark that the child was a natural-born citizen? The answer is: we don't know. The Supreme Court has never explicitly decided a case on natural-born citizenship where both alien parents were not permanent legal domiciliaries, permanent legal residents, and where both parents did not have ongoing personal and practical ties to the United States of America.

Birth of a President: the "what ifs" that remain

So this principle may follow from Wong Kim Ark: the less the alien parents' ties to the U.S. are like that of U.S. citizens, the less likely a child born to those aliens -- regardless that he is born in the U.S. -- is to be recognized as a natural-born citizen. How that affects the future of birtherism, regardless of candidate, remains to be seen.

Sources:

Adam Liptak, "A Hint of New Life to a McCain Birth Issue," New York Times.

Carl Hulse, "McCain's Canal Zone Birth Prompts Queries About Whether That Rules Him Out," New York Times.

Carl Hulse, "Bill Would Remove Doubt on Presidential Eligibility," New York Times.

Hannah Strange, "McCain's Panama birth prompts eligibility probe by his campaign," Times (U.K.) Online.

"Senate says McCain can be president although born overseas," Agence France Presse.

Jake Tapper, "Legislation Introduced - by Democrats - to Declare McCain a U.S. Citizen," ABC News Blog.

Michael Dobbs, "Citizen McCain," Washington Post.

1968Camaro80, "Reply #13: John McCain was NOT born in the Panama Canal Zone," Democratic Underground.

Tod Roberson, "McCain's Citizenship Still in Question," Dallas News.

"John McCain's Citizenship Status & Eligibility for the Presidency Called into Question," Cleveland Leader.

Donald Douglas, "McCain Birth Eligibility Remains Controversial," American Power Blog.

"Michelle Obama: Barack's Home Country Is Kenya," Opposing Views (video).

Syc1959, "Obama home country is Kenya," YouTube.

John W. Dean, "The Pernicious "Natural Born" Clause of the Constitution: Why Immigrants Like Governors Schwarzenegger and Granholm Ought to be Able to Become Presidents," FindLaw.

United States v. Wong Kim Ark (1898).

Charles Wood, "Losing Control of the Nation's Future -- Part Two -- Birthright Citizenship and Illegal Aliens," The Social Contract.