While searching for information on the Wong Kim Ark decision this week and Mario Apuzzo’s
convoluted incorrect interpretation of the case I was wondering what contemporary attorneys might have had to say about the case. I came across an article in the Literary Digest from 1899 about the Fourteenth Amendment and the current state of citizenship law. The Literary Digest published condensed versions of articles from newspapers, magazines, and other sources around the country and the world, and was one of the leading magazines in its prime. Funk & Wagnalls published it from 1890 until 1938.
The article concerned lectures on the Fourteenth Amendment and citizenship presented by New York attorney William Dameron Guthrie. Mr. Guthrie had quite an impressive resume and career. From Wikipedia:
William Dameron Guthrie (1859, San Francisco, California – 1935) was an American lawyer and educator. He was educated in Paris, in England, and at the Columbia Law School (1879-80). In his practice before the United States Supreme Court he argued the income tax, California irrigation, Illinois inheritance tax, oleomargarine, and Kansas City stockyards rate cases. He was Storrs lecturer at Yale University in 1907-08 and was Ruggles Professor of Constitutional Law at Columbia University from 1908-22. Besides his contributions to periodicals on legal and political subjects, he was author of Lectures on the Fourteenth Amendment to the Constitution (1898) and Introduction to American Constitutional Law (1913).
Here is the text of the article [emphasis added]
Source: The Literary Digest – Funk and Wagnalls 1899
CITIZENSHIP IN THE UNITED STATES II
PERTINENT to questions of citizenship arising in connection with our new acquisitions of territory, is the contention there are two separate kinds of citizenship, and that the Fourteenth and Fifteenth Amendments to the Constitution guarantees throughout the United States, fundamental rights of citizenship, including voting rights of citizens of the United States. This point of view is held by William D Guthrie (one of the counsel in the income tax case), whose conclusions from exhaustive study of Supreme Court decisions, appear in lectures before the (Yale) Dwight Alumni Association which have just been published under the title “The Fourteenth Amendment”. Guthrie maintains that under the rules of constitutional interpretation, the amendments lay down general principles which must be observed; that the Mississippi plan of eliminating negro suffrage, for instance, is unconstitutional and that whenever a case directly involving the abridgment of privileges and immunities of citizens shall reach the supreme court, rights guaranteed by the Fourteenth and Fifteenth Amendment will be upheld.
On constitutional interpretation Mr. Guthrie says
“In construing constitutional provisions the particular or occasion out of which they grew is never controlling. The grievance or occasion may no longer exist; but the remains effective to govern and regulate analogous. Thus altho as a matter of fact the protection of the colored race was uppermost in the minds of the people when they adopted the Fourteenth Amendment, nevertheless its provisions, embodied in the organic law, became a general rule of civil and political, and established a fixed standard of governing individual rights and liberties applicable to all and to all conditions.
We quote at further length from Mr. Guthrie’s exposition of the Fourteenth Amendment.
“The first sentence provides that ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside’. This provision changed the origin of federal citizenship. Prior thereto, no one could be a citizen of the United States unless a citizen of a State according to the state constitution or laws. He is now a citizen wholly irrespective of state legislation, and simply by reason of birth in the United States or naturalization under federal laws. There is therefore a twofold citizenship under our system namely federal citizenship and state citizenship. The qualifications of citizenship under state laws may be different from those required under the federal Constitution and there are rights as citizens of the United States which do not appertain to state citizenship.
“The phrase ‘subject to the jurisdiction thereof’ in this clause has occasioned considerable difficulty. If the parents of a child born in the United States were citizens the meaning was clear. But what was to be the status of a child born in the United States of Indians or of Chinese or other alien parentage? In the leading case of Elk v Wilkins it was decided that an Indian born a member of one of our Indian tribes still existing and recognized as such even tho he had voluntarily separated himself from his people, and taken up his residence among the white citizens, but who did not appear to have been naturalized or taxed, was not born in the United States subject to the jurisdiction thereof, and was not a citizen. He was born subject to the jurisdiction of his tribe. This decision left in uncertainty the legal status of all others born in the United States of alien parentage. Was their citizenship to be determined by the common-law of locality of birth or was the rule of the civil law as to the allegiance of the parents to control? This question was not settled until a few weeks ago thirty years after the amendment adopted thus showing how slowly constitutional law develops the life of a nation. The common law rule has been finally affirmed by the Supreme Court in the recent case of the United States v Wong Kim Ark. The Supreme Court held that a child born in this country of Chinese parents domiciled here is a citizen of the United States by virtue of the locality of his birth. The whole subject is discussed at length in the opinions of this case. The effect of this decision is to make citizens of the United States, by virtue of the Fourteenth Amendment, all persons born in United States of alien parents and permanently domiciled here, except the children of the diplomatic representatives of foreign powers; and therefore, a male child born here of alien Chinese subjects is now eligible to the office of President, altho his parents could not be naturalized under our laws.
Mr. Guthrie correctly analyzed the Wong Kim Ark decision and what it meant just weeks after the majority opinion was delivered by Justice Gray. He also recognized that the decision settled a festering controversy (manifested by Justice Waite’s comment in the dicta of the Minor v Happersett case) as to just who were the citizens by birth or the natural born citizens. As Guthrie inferred the WKA ruling said that common-law, by place was the primary factor in determining who were natural born citizens.
Anyone who is old enough to remember the old Rowan and Martin’s Laugh In show of the late 60’s would get a kick out of this. So the next time your favorite Birther starts quoting de Vattel and tells you a natural born citizen must have two citizen parents tell them they are plain wrong and “go look that up in your Funk and Wagnalls!”
[Updated 6/29/2012] I did a bit more research on William D. Guthrie. In case you think he was some lightweight of an attorney think again (Mario Apuzzo said Guthrie was wrong in this article for example). At age 35 he was already a partner in a prestigious New York law firm. In 1894 he was one of the key attorneys along with Joseph Choate, who led a series of successfully court battles in what was known collectively as The Income Tax Cases, that led to the income tax passed by Congress in 1894, known as the Wilson-Gorman Tariff Act, being declared unconstitutional when the cases where consolidated to become Pollock v. Farmers’ Loan and Trust Co. This eventually led to the necessity of amending the Constitution before any income tax could be levied again. This was accomplished with the ratification of the Sixteenth Amendment in 1913. Let’s just say if Guthrie were alive today he would be a hero of the current anti-tax group of Republicans that includes most Birthers. Oh the irony!
[Updated 7/3/2012 – More icing on the cake] The lecture by William D. Guthrie following the Supreme Court decision in Wong Kim Ark wasn’t the only article to recognize the ruling made Wong a natural born citizen. I found this article published in the American Law Register and Review written in 1896 after the favorable US District Court ruling. The article states beginning on page 206
Citizenship under the Fourteenth Amendment – A decision one of the district courts of California delivered on the third of January brings to the consideration of the legal profession a not only of great importance but one also of much nicety. One Wong Kim Ark, was born in 1873, in the State of California, of parents who, though at that time residents here, were subjects the Emperor of China. His parents continued to reside here 1890, when they took permanent leave. Wong Kim Ark remained in the United States until 1894 when he departed on a visit to the land of his race. In August 1895, he returned, and applied to the Collector of the Port to be permitted to land, and his application was refused upon the sole ground that was not a citizen of this country. Upon this refusal, a petition for a writ of habeas corpus was filed for him in the district court where it was held by Morrow, J. that having been born here, he was, by virtue of the Fourteenth Amendment to the Constitution of the United States, a natural born American citizen and was being unjustly restrained of his right to return to this country.
On the very same page the writer discusses the conflict between the common law and the “international law” interpretation of citizenship by birth and specifically notes that Minor v Happersett did not settle the issue because the court refused to decide it:
At Common Law if the parent be under the actual obedience of the king and the place of the child’s birth be within the king’s obedience as well as in his dominion the child becomes a subject of the realm. But by International Law birth follows the political status of the father and of the mother when the child is illegitimate. So that it is quite evident that the proper solution of the difficulty rests upon the discernment of the true scope of the meaning of the word jurisdiction as it appears in the Constitution in the clause referred to.
This case is not altogether a new one but has been previously decided in three cases in inferior courts, Lynch v Clark ,1 Sandf Ch NY 583 1844,; Gee Fook Sing v United States, 49 Fed Rep 146 1892; In re Look Tin Sing, 21 Fed Rep 905 1884; in the last of which the opinion was rendered by the present Justice Field of the Supreme Court all three adopting the Common Law rule viz that birth within the realm is conclusive. The question seems never to have been before the Supreme Court of the United States for decision. It has however been incidentally there and in one case, Minor v Happersett, 21 Wall 168 1874, they refused to decide the point and in another The Slaughtcr House Cases, 16 Wall 73 1872, they,by a dictum, construe the clause in direct conflict with the decision of Field J when in the lower court. It is worthy of note that Justice Field dissents in the latter case.
The article goes on to discuss the need for the Supreme Court to settle the question for once and for all who was a citizen by birth, a natural born citizen, for once and for all. The question was finally settled less than two years later in the landmark decision. The definition of who was “natural born” is derived from Blackstone’s common law, and not de Vattel’s “international law” interpretation. I urge the reader to check out both sources. You can see that the legal minds of the day understood that Wong Kim Ark was ruled to be a natural born citizen, and that the case settled a question left open in Minor.