Talk:United States v. Wong Kim Ark/Archives/2012

The Exchange

I removed some material recently added to the discussion of the majority opinion, stating that the court's majority had "relied extensively" on The Schooner Exchange v. M'Faddon (a.k.a. The Exchange). While it is true that the Wong Kim Ark opinion cited The Exchange in support of its interpretation of what subject to the jurisdiction thereof must mean in the 14th Amendment, the cited sources did not (IMO) support a claim that the Wong Kim Ark court had "relied extensively" on The Exchange. Indeed, the publications cited as sources in the now-deleted material appeared to mention The Exchange only within extensive quotations from the Wong Kim Ark opinion — not via any independent commentary of the sort I believe would be needed in order to substantiate such a claim here. If secondary sources can be found which discuss (not merely quote) references to The Exchange as a basis for the Wong Kim Ark court's reasoning, it would certainly be in order to reinstate something along the lines of this deleted material. Richwales (talk) 18:28, 3 October 2011 (UTC)

(Undent)The removed material is as follows:

The Court's opinion in Wong Kim Ark relied extensively on a prior opinion written by Chief Justice John Marshall for the Court in the 1812 case of The Schooner Exchange v. M'Faddon.[41] The Court in Wong Kim Ark stated:[42]

The words 'in the United States, and subject to the jurisdiction thereof,' in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange....

The Court quoted extensively from Marshall's 1812 opinion, including Marshall's statement that, "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself."[43] Such limitations include immunity given to foreign diplomats, but no such limitation applied to the case of Wong Kim Ark.

[41] See The Schooner Exchange v. M'Faddon, 11 U.S. 116 (1812). Available via Justia.

[42] Randolph, Carman Fitz. "The law and policy of annexation: with special reference to the Philippines, together with observations on the status of Cuba", p. 54 (Longmans, Green & Co. 1906).

[43] Kim, Hyung-Chan. Asian Americans and the Supreme Court: a documentary history, pp. 213 and 460 (Greenwood Publishing Group 1992).

I agree that footnote 43 is inadequate. I was too hasty when I included that footnote, and did not realize that the source reprinted the Marshall quote while reprinting the whole case. However, footnotes 41 and 42 are perfectly okay; the Randolph book excerpts the full sentence that I quoted from Wong Kim Ark, in discussing construction of the Citizenship Clause. Additionally, without even bothering to check online databases like WestLaw and Lexis, the following sources can be added:

1) Antieau, Chester. Constitutional Construction, page 97 (Oceana Publications 1982). “In construing later amendments, the Court has also indicated it will make reference to its own earlier opinions in which the words and phrases, that have now been incorporated into the organic law, were employed. In 1898, the Court stated....” Antieau then gives the Wong Kim Ark quote, cutting it off where I did (after the words “The Exchange”).

2) Martin, David and Schuck, Peter. Immigration Stories, page 75 (Foundation Press, 2005): "In its analysis of the nature of national jurisdiction, the Court relied heavily on Chief Justice John Marshall’s broad statement...." And then the Marshall quote is given.

3) Words and Phrases, Volume 40, page 605 (West Publishing Company 1964). Excerpts the full sentence that I quoted from Wong Kim Ark, to define “Subject to Jurisdiction Thereof”.

So, I propose to reinsert the material with the additional sources, but removing the Kim source.Anythingyouwant (talk) 00:52, 4 October 2011 (UTC)

I would go along with having the article say that the court "relied heavily" on Chief Justice Marshall's statement regarding national jurisdiction — with a cite to the Martin/Schuck book and to The Exchange. I feel that the Antieau and Words and Phrases sources are too weak to use here, as are the Randolph and Kim sources used earlier (which, as best I could tell from looking at them, merely quoted portions of the Wong Kim Ark ruling where The Exchange was discussed). Richwales (talk) 02:28, 4 October 2011 (UTC)

Why do you feel that the Antieau and West sources are too weak to use here? West (i.e. Words and Phrases) pinpoints this sentence of Wong Kim Ark as the key sentence that determines the meaning of "subject to the jurisdiction thereof"; if there's any sentence of Wong Kim Ark that we quote, this should be it. Antieau affirms this. Randolph pinpoints this same sentence, and says that this is how the Court construed the Citizenship Clause. You're arguing to exclude three extremely relevant and reliable sources (Anteau, West, Randolph) that all point to this as the key sentence in the case. How many sources would be enough? It would also be odd to say that the Wong Kim Ark Court relied on the Exchange, without saying what the Exchange said (as Martin/Schuck do). I'd be glad to get more sources if that would make any difference.Anythingyouwant (talk) 03:05, 4 October 2011 (UTC)

Perhaps I've misunderstood exactly what these sources say or how you are proposing to use them. I don't think something that simply repeats, verbatim, a portion of the court's opinion is useful (except to confirm that this is what the court said, and the text of the court's opinion is unquestionably established in easily obtainable primary sources that require no interpretation, so there's no real point). A source that says such-and-so is the key part of the opinion would certainly be useful in establishing that fact. Does that make any sense? If you think I'm still confused, can you show me what the various sources say and how you are proposing to use them? Richwales (talk) 03:34, 4 October 2011 (UTC)

As to what I'm proposing, I said above: "So, I propose to reinsert the material with the additional sources, but removing the Kim source." Alternatively, I guess this might be a workable compromise:

In construing the Fourteenth Amendment, the Court in Wong Kim Ark made reference to an earlier court opinion pre-dating that amendment, namely The Schooner Exchange v. M'Faddon. Relying heavily on the 1812 opinion by Chief Justice John Marshall in The Exchange, the Court in Wong Kim Ark reiterated that, "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself."

I've inserted this as a compromise.Anythingyouwant (talk) 09:46, 4 October 2011 (UTC)

Thanks. I think this looks basically OK. Richwales (talk) 16:17, 4 October 2011 (UTC)

Is anyone going to point out that VERY limited "jurisdiction" the Federal Government has within the 50 states of the Union? The Elk case made it perfectly clear WHO was subject. Additionally Congress has forever admitted that the 14th is being misapplied and illegals children are NOT "citizens of the United States". http://www.gpo.gov/fdsys/pkg/CHRG-109hhrg23690/pdf/CHRG-109hhrg23690.pdf Honestly anyone who can read can understand this, but given that the average Harvard Graduate student can only muster a FAIL at 57% on a BASIC civics test, it does not inspired confidence in "lawyers". http://www.isi.org/quiz.aspx?q=FE5C3B47-9675-41E0-9CF3-072BB31E2692 Peace 98.206.222.240 (talk) 02:46, 2 January 2012 (UTC)

(1) That's not what Elk v. Wilkins said. (2) Statements made by individuals appearing before a House subcommittee do not equate to Congress "forever admitting" anything. (3) Interesting civics test — I did it just now and scored 97%. — Richwales (talk) 03:23, 2 January 2012 (UTC)