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ABSTRACT
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Territorial Filipinos are Filipinos born during the American territorial period (1898-1946) in the Philippine Islands after the United States purchased and ceded Las Islas Filipinas from the Spanish Crown under the 1898 Treaty of Paris.
The Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution that was ratified in 1868 reads:
"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."
Under U.S. v. Wong Kim Ark (1898), the phrase "and subject to the jurisdiction thereof," enclosed within a pair of commas (the first comma before the conjunction "and," the second before the linking verb "are"), is viewed as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States."
With due respect, it is this MONUMENTAL READING ERROR in Wong Kim Ark of the phrase "and subject to the jurisdiction thereof" in the Citizenship Clause that justified the DENIAL of U.S. citizenship to Territorial Filipinos, after Downes v. Bidwell (1901) held that the territories ceded under the Treaty of Paris were "unincorporated territory," merely "appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution."
But take careful note that Downes v. Bidwell was about "the revenue clauses"--not "the Citizenship Clause."
Relying on this Doctrine of Incorporated Territory, Rabang v. INS (1994) opined that:
"... birth in the Philippines during the territorial period does not constitute birth 'in the United States' under the Citizenship Clause of the Fourteenth Amendment, and thus does not give rise to United States citizenship.”
But even if the U.S. territory of the Philippine Islands was regarded as "not a part of the United States," this paper will argue, nonetheless, that the author of the Citizenship Clause in Sec. 1 of the Fourteenth Amendment, Sen. Jacob Merritt Howard (and the 39th Congress for that matter), had it all figured out earlier. For, in the words of Senator Howard in his sponsorship speech, the all-embracing Clause he proposed:
“... is simply declaratory of what I regard as the law of the land already ... by virtue of natural law and national law, a citizen of the United States ... [and] will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States." This has long been a desideratum in the jurisprudence and legislation of this country.” (bold added)
Note that at the time Senator Howard drafted the Clause in 1866, the children of U.S. citizens born abroad out of the limits of the United States--other than those "born in the United States"--were already declared and recognized "by virtue of ... national law" (the Naturalization Acts since 1795) to be citizens of the United States (even as "natural-born" in the original Act); but does the Wong Kim Ark Reading include these children?
And so, since the Wong Kim Ark view does NOT "include every other class of persons," it fails to satisfy fully what Senator Howard said in his speech that the Clause he proposed "settles the great question of citizenship and removes all doubt as what persons are or are not citizens of the United States."
This paper will, therefore, argue that the phrase, "and subject to the jurisdiction thereof," was intended to act, not as a "qualifying" phrase of the element preceding it, but as the SECOND SUBJECT of the compound Sen. Howard structured as an "ELLIPTICAL" for the complete construction, "and [all persons] subject to the jurisdiction thereof," with the repeated main noun phrase, "all persons,"common to both subjects in the compound, OMITTED rather than stated, for brevity or style, recoverable or inferable from the same main noun phrase,"All persons," in the first subject it is coordinate with, joined together by the conjunction "and."
Senator James Doolittle, during the debate, directly quoted (in quotation marks), how “the language” of the phrase "and subject to the jurisdiction thereof" in the Citizenship Clause was understood to convey:
"Mr. DOOLITTLE ... But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language which he [Senator Howard, the author] uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does ..." (bold added)
To repeat what Senator Doolittle quoted--"all persons subject to the jurisdiction of the United States."
Yet, this all-important quotation that appears in the internet accessible Congressional Globe records of the Citizenship Clause debate (39th Congress, 1st Session, May 30, 1866) affirming a SECOND CATEGORY of citizens of the United States has never been subjected to the scrutiny it deserves.
But the crucial question that this paper proposes to resolve persists to this day, and that question is: Does the prevailing Wong Kim Ark reading of the Citizenship Clause that views the phrase between commas, "and subject to the jurisdiction thereof," as a mere qualifier of the element preceding it, "all persons born," satisfy fully Senator Howard's avowed intent that the Clause he authored "removes all doubt as to what persons are or are not citizens of the United States"?
The Wong King Ark view certainly does not; it instead magnifies "all doubt," by excluding children of U.S. citizens born abroad already recognized at the time Senator Howard proposed the Clause in 1866 to be citizens of the United States at birth "by virtue of natural law and national law" as early as 1790 yet.
In the author's own words, the Clause was primarily intended to recognize the conferment of U.S. citizenship, not only upon the class of "persons born in the United States," but also upon "every other class of persons," or upon "all persons," from and after the moment they become "subject to the jurisdiction of the United States," either at birth (natural-born) or after birth (naturalized), though born or residing in territory or in any place out of the limits of the United States, however the term "in the United States" may be defined later--as in the Insular Cases--to exclude ceded territory regarded merely as "appurtenant and belonging to the United States, but not a part of the United States."
In a word, the Second Category is simply a general comprehensive definition of who a citizen of the United States is.
This paper will therefore argue that, aside from a specific First Category conferring U.S. citizenship upon the jus soli class of "All persons born in the United States," it is the laudable inclusion of what is actually a definition of citizenship of the United States under a generic Second Category that virtually confirms in no uncertain terms what Senator Howard boldly highlighted during his sponsorship speech that the Clause he submitted is a proposal that finally "settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."
This paper will conclude that Territorial Filipinos, among others (particularly the children of U.S. citizens born abroad, out of the limits of the United States, already declared "by virtue of national law" as citizens of the United States at birth under the Naturalization Acts since1790--including Senator John McCain born in the Panama Canal Zone), belong to this still-unrecognized, now-forgotten SECOND CATEGORY of citizens of the United States the Citizenship Clause confers--
"all persons subject to the jurisdiction of the United States," at birth, even after birth.
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