Justice Horace Gray–Judge? Or Legislator

Author’s Note:  It is difficult to condense the error of Justice Horace Gray onto one page. Gray took great liberties with the Osborne case and English common law in order to create a new ‘citizenship at birth.’


Following is an examination of one Supreme Court precedent cited in the Wong Kim Ark case, which Justice Gray proceeds to ignore. The colored text matches commentary with the actual text from Wong Kim Ark.

Justice Gray decided to expand the principle of ‘jus soli’ to give Ark citizenship at birth, although that citizenship was barred by statute and treaty. He did this by paraphrasing the Osborne case and using English common law to conflate ‘native born’ with ‘citizenship at birth,’ while 14th Amendment citizenship for those ‘born in the United States’ was post nati. Natural born citizenship remained, as it had since 1790, dependent first on U.S. citizen parents, not place of birth.

Here is Gray discussing ‘citizenship at birth’ deciding while ‘born in the United States’ as defined in the 1866 Civil Rights Act and 14th Amendment ‘citizenship clauses’ were constitutional, the constitution “conferred no authority upon Congress to restrict the effect of birth.” Gray relies on Osborn v. United States Bank, 9 Wheat. 738, 827 to conflate ‘native’ birth with citizenship, which was nowhere in statute;

[N]o act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation. The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship. Wong Kim Ark, (p704)

But, Gray is paraphrasing Osborn, assuming ‘native-born’ as synonymous with ‘natural born citizen.’ This is a leap, relying solely on selected English common law as precedent. So, Justice Gray was fabricating a gap in the law for the judiciary to enter in creating ‘citizenship at birth’ for children born of all aliens, not just the freed slaves of African descent. He justified this, subtly criticizing the exclusion of naturalization to ‘non-whites,’ invoking 1870 statute extending naturalization to those of African descent but still denying naturalization of Chinese.[1]

The power, granted to Congress by the Constitution, “to establish an uniform rule of naturalization” was long ago adjudged by this court to be vested exclusively in Congress. Chirac v. Chirac (1817), 2 Wheat. 259. For many years after the establishment of the original Constitution, and until two years after the adoption of the Fourteenth Amendment, Congress never authorized the naturalization of any but “free white persons.” Acts of March 26, 1790, c. 3, and January 29, 1795, c. 20; 1 Stat. 103, 414; April 14, 1802, c. 28, and March 26, 1804, c. 47; 2 Stat. 153, 292; March 22, 1816, c. 32; 3 Stat. 258; May 26, 1824, c. 186, and May 24, 1828, c. 116; 4 Stat. 69, 310.

While Gray relied on English common law as precedent, he cited U.S. law that was contrary to his opinion and ignored it. The 39th Congress in debate and statute, and stare decisis five-years previously in Elk vs. Wilkins, 112 U.S. 94 (1884), the issue of ‘born or naturalized’ was recognized as settled law, already defined:

It is also worthy of remark that the language used about the same time by the very Congress which framed the Fourteenth Amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.”

Gray ignores “and not subject to any foreign power” which had nothing to do with whether the child was a ‘free white,’ or ‘non-white.’ It is essential to mention here that Congress decided that the ‘citizenship clause’ of the 14th Amendment was completely in agreement and sourced from that same clause in the 1866 Civil Rights Act.

Conclusion: Congressional record, statute, and constitutional amendment created a post nati ‘jus soli’ citizenship at birth because the standard of jus sanguinis was impossible for children of freed slaves. However, ALL OTHER CHILDREN HAD PARENTS OF ‘FOREIGN ALLEGIANCE.’ So, in order to grant Wong Kim Ark citizenship, Horace Gray acted not as a judge applying law and stare decisis, but as a rogue legislator from the bench.

[1] By the treaty between the United States and China, made July 28, 1868, and promulgated February 5, 1870, it was provided that nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States. 16 Stat. 740. By the act of July 14, 1870, c. 254, § 7, for the first time, the naturalization laws were “extended to aliens of African nativity and to persons of African descent.” 16 Stat. 256. This extension, as embodied in the Revised Statutes, took the form of providing that those laws should “apply to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent;” and it was amended by the act of February[p702] 18, 1875, c. 80, by inserting the words above printed in brackets. Rev.Stat. (2d ed.) § 2169; 18 Stat. 318. Those statutes were held, by the Circuit Court of the United States in California, not to embrace Chinese aliens. In re Ah Yup (1878), 5 Sawyer 155. And by the act of May 6, 1882, c. 126, § 14, it was expressly enacted that “hereafter no state court or court of the United States shall admit Chinese to citizenship.” 22 Stat. 61. In Fong Yue Ting v. United States (1893), above cited, this court said: Chinese persons not born in this country have never been recognized as citizens of the United States, nor authorized to become such under the naturalization laws. Wong Kim Ark (p704)


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