Winter 2012 The Social Contract Wong Kim Ark’s Ship Comes to Port Justice Horace Gray’s miscarriage of justice BY WILLIAM BUCHANAN he citizenship clause of the 14th Amend- based on his birth here to domiciled, non-diplomat par- ment reads: “All persons born or natural- ents. I will try to mark out how he severely overstepped ized in the United States, and subject to when he then extended citizenship to anyone born on the jurisdiction thereof, are citizens of the American soil based on what I call the Coke catechism. United States and of the State wherein Part I Pre-Civil War Citizenship Tthey reside.” Thanks to a decision by the Supreme Court in U.S. Membership. It was convenient, even plausible, v. Wong Kim Ark, 169 U.S. 649 (1898), which largely that Justice Gray found membership whether as subject ignored that clause, female illegal aliens in the U.S. now or citizen to be equivalent products of English common give birth to 300,000–400,000 infants annually, who are law and the English notion of perpetual allegiance to a automatically U.S. citizens. king. This was a compound of two elements: the right It doesn’t end there. In fiscal year (FY) 2010, we to inherit and Calvin’s Case. had 160 million legal non-immigrant admissions. They Right to Inherit. Like other countries in the included tourists and short-term admissions across our seventeenth century, England denied aliens — persons Mexican and Canadian borders. They included longer- born outside the king’s allegiance or realm — the right term entrants like students and temporary workers and to own and inherit land. Under a fading feudal system, their spouses and children. We don’t know how many kings still had a kind of property in their subjects. In individual persons were admitted — many admissions return for the king’s protection at the time of birth on are of the same person — but among all of them are the king’s soil, the child owed the king allegiance for bound to be tens of millions of women of child-bearing life (allegiance in exchange for protection). A privilege age. It would be unrealistic to imagine that deliberately of such allegiance was the right to own and inherit land. or serendipitously there are not a great many who bear Calvin’s Case codified this relationship. In 1608, a children during their time here. Scottish lad, Robert Calvin (actually Colville), inherited These children are U.S. citizens, not immigrants. land in England, land that was quickly claimed by two They have the same political rights and welfare eligibili- Englishmen, Richard and Nicholas Smith. They claimed ties as all other Americans plus the option, eventually, to Calvin’s birth in Scotland made him an alien and not bring in their foreign-born relatives. Moreover, they are eligible to inherit in England. However, Calvin was born likely to be citizens of their mother’s country, as well a subject of James I, king of both England and Scotland. — a gold-plated advantage in a global economy (and a The king, being desirous that the two kingdoms should convenience for potential terrorists). be joined, wished his courts to allow the inheritance. Finally, these births far understate the potential. Sir Edward Coke (pronounced Cook) noted the Any woman on Earth who can manage to get here and case was “[H]eard by the Chancellor and all the Judges deliver can join the “anchor baby” club. This absurd ar- of England.” He reported that by reason of natural law, rangement threatens American sovereignty. Robert Calvin was a subject of the king by birth on the Justice Horace Gray’s opinion in U. S. v. Wong Kim king’s soil and that that subjectship was perpetual: Ark reasonably granted citizenship to Wong Kim Ark Whatsoever is due by the law or constitution of man, may be altered; but natural ligeance or obedience to the Sovereign cannot be William Buchanan is legislative director of the altered ... Again, whatsoever is due by the American Council for Immigration Reform (ANCIR) Law of Nature, cannot be altered ... ligeance based in Washington, D.C. and obedience of the subject to the Sovereign 41 Winter 2012 The Social Contract is due by the Law of Nature; ergo it cannot The American Revolution. With the revolution, be altered. the old system exploded. Wood quotes a 1789 statement Thus was born the two-part Coke catechism. by doctor and historian David Ramsay. People changed: 1. Subject status in England and Scotland based from subjects to citizens [and] the difference is solely on place of birth without regard to the status of immense. Subject … means one who is under the parents (jus soli), and the power of another; but a citizen is an unit 2. Permanent and perpetual allegiance to the Eng- of a mass of free people, who, collectively, lish king for life based on “natural law.” possess sovereignty. Subjects look up to a Coke did allow for two exceptions: children born master, but citizens are so far equal, that none on the king’s land to a diplomat or born on king’s land have hereditary rights superior to others. occupied by an enemy. Each citizen of a free state contains, within In 1766 William Blackstone began publication of himself, by nature and the constitution, as what became his four-volume “Commentaries on the much of the common sovereignty as another. Laws of England.” When completed it would detail Prior to July 4, 1776, colonists, like their English English common law. Blackstone elaborated on Coke’s cousins, were born subjects of the English king for life maxim: based on the common law. Upon separation, part 2 of Natural allegiance is such as is due from all Coke’s catechism, permanent and perpetual allegiance, men born within the king’s dominions im- died. But somehow part 1, membership based solely mediately upon their birth. For, immediately upon place of birth without reference to the parents, lin- upon their birth, they are under the king’s gered and, thanks to Justice Gray, gained an iron grip on protection, at a time too, when (during their America’s throat. infancy) they are incapable of protecting Like the moth- themselves. Natural allegiance is therefore a erland, new American debt of gratitude, which cannot be forfeited, states allowed only canceled, or altered, by any change of place American citizens to in- or circumstance, nor by anything but the unit- herit. When separation ed concurrence of the legislature. was agreed to, Great How permanent was this relationship? In 1746, Britain set the date of Aeneas MacDonald was convicted of high treason. election at the Treaty Born in England but raised, educated, and employed as of Peace, September 3, a banker in France, MacDonald’s counsel argued he was 1783. After that date, if not really English anymore. Permanent allegiance, they one still dwelt on Amer- argued, went out with the Revolution of 1688, and so, ican soil, he/she must captured in the Jacobite Rising of 1745, he was no more elect to remain a Brit- than a prisoner of war. But the court ruled that no one Justice Horace Gray ish subject — and do so could by himself “shake off” his allegiance to the king. quickly. Only a pardon from the king and some technicalities For Americans, whether someone was a member / helped MacDonald avoid a date with a rope. citizen was more complicated. This might be awarded Historian Gordon Wood criticized this relationship based on one’s presence here on July 4, 1776, or the date with its “implications of humiliation and dependency.” the state one resided in formally declared its indepen- English monarchy, he said, “implied a society of dence. It could depend upon the way your state’s decla- dependent beings, weak and inferior, without autonomy ration was written. What you did during the war might or independence, easily cowed by the pageantry and mark you one way or the other. trappings of a patriarchal king.” American citizenship initially grew out of a series According to Wood, pre-war America was a pathetic of inheritance cases. Want to inherit? First, prove you’re imitation of a class society, in which one’s inferior might a citizen. Fairness dictated a complex search for the way be polishing your shoes while you were polishing the the common law, treaties, and American state constitu- shoes of someone a notch up the ladder from you. By tions and colonial laws might interact. Who might be a the time of the Revolution these arrangements had been citizen based on birth on American soil was still more hollowed out. complicated. 42 Winter 2012 The Social Contract Four pre-Civil War citations. Some early state tive born” citizen daughters. One of them, Isabella Mc- constitutions based law on English common law, stat- Creery, sued to claim a one-third share of the estate. utes of Parliament, colonial laws, and any laws the new Maryland was one of the four states that included state might sub-sequently pass. Other states continued the English common law and statutes as part of its legal to make do with their old charters. I’d like to begin by structure. Story therefore began his opinion by invoking reviewing four antebellum Supreme Court cases cited English law: “… the statute of 11 and 12 Wm. III, Ch. by Justice Horace Gray. Gray’s goal, it is obvious, was 6, is admitted to be in force in Maryland….” And Gray to elevate English common law and the Coke catechism rightly concluded: “[I]t was assumed that children born and make them the sole basis for American citizenship.