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"Citizenship is man's basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person ... deprived of the right to assert any rights."
-- Chief Justice Earl Warren, dissenting, Perez v. Brownell (1948)

“All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together."
-- Justice Noah Haynes Swayne, U.S. v. Rhodes (1866)

"What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means."
-- Senator Lyman Trumbull, Citizenship Clause debate (1866)

“Allegiance and protection are, in this connection (that is, in relation to citizenship) reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance."
-- Chief Justice Morrison R. Waite, Minor v. Happersett (1874)

"The Philippines thereby ceased, in the language of the treaty ... to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection."
-- Chief Justice Melville Fuller, Fourteen Diamond Rings (1901)

"The government of a state does not derive its powers from the United States, while the government of the Philippines owes its existence wholly to the United States, and its judicial tribunals exert all their powers by authority of the United States. The jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount."
--Justice John Marshall Harlan, Grafton v. U.S. (1907)

"Unconstitutional precedents create constitutionality."
-- Irving Brant, The Bill of Rights, Its Origin and Meaning (1965)

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Philadelphia Inquirer, reprinted American Monthly Review of Reviews,(23 May 1901).
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A. TERRITORIAL FILIPINOS DENIED U.S. CITIZENSHIP BY A MONUMENTAL READING ERROR
This paper investigates the political status of Filipinos during the American Territorial period, the status of the Forgotten, the Erased, the Invisible, a status that has never been accorded the thorough analysis it deserves.

This paper will refer to the group of "the aged and aging" Filipinos--now 62 years old or over as of 2008--who were born or residing in Las Islas Filipinas after the exchange of ratifications of the Treaty of Paris between the Spanish Crown and the United States on April 11,1899 (signed in Washington on Dec. 10, 1898) and before the Independence of the U.S. territory of the Philippine Islands (the Commonwealth of the Philippine Islands by 1935) is recognized on July 04, 1946 as Territorial Filipinos. Spanish colonizers earlier called them, Indios.

In terms of status, Territorial Filipinos are woefully misunderstood, mistakenly lumped together with the Chinese, Japanese, Indian, Korean and other "alien immigrants" in the United States. The status of Territorial Filipinos is unique--in a class by itself. For no other group of persons can ever claim to have held the several hybrid identities America designated them with, in lieu of the true status they were entitled to be conferred with.

Take careful note that, having been acquired at birth, Territorial Filipinos continue to hold on to their true status that no doubt remains preserved to this day. For, in the particular case of the precious Right to citizenship, individual assent is necessary; thus, unless voluntarily renounced--or afforded the opportunity to divest--individually the true status they were conferred with at the moment of birth, the citizenship Territorial Filipinos acquired initially at birth remains intact, preserved.

Justice Hugo Black in Afroyim v. Rusk (1967) confirms:

"We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”

What is significant to underscore is the undeniable fact that Territorial Filipinos were all born before July 04, 1946, the date the U.S. Territory of the Philippine Islands (or the Commonwealth of the Philippines by 1935) became the Republic of the Philippines, a "country" that was officially non-existent at the time they were born.

A person, of course, can only be born once. The circumstances of birth--date of birth, parentage, and the sovereign at the place of nativity that determines nationality under jus soli--are indelible, better still, “a Gift of the Creator.” No law or regulation can nullify circumstances nature has dictated and the Almighty has ordained to be so by His Own Will alone, unless the miracle of a person suddenly resurrecting to be born again occurs.

The term "Country of Birth" is defined as "the country in which the person was physically born," also known as "country of origin" or "birthplace," based upon the recognized boundaries of the place of nativity in existence at the time the birth of the person occurs, which, in jus soli, is the determinant to status at birth.

Thus, although the boundaries defining the territorial jurisdiction of any country or state, even its official name, may change either by being absorbed as part of another or by becoming an independent country or state; however, nationality (which may not impart the same meaning as "citizenship" under U.S. law) attaches to the person, initially, at birth (otherwise, born stateless); while naturalization is the process by which a person acquires another nationality after birth, by renouncing voluntarily the nationality individually conferred initially at birth or that subsequently acquired thereafter.

So, how should a Territorial Filipino, applying to be "naturalized" as an American, truthfully reply to the question in immigration documents: "Country of Birth"? Without openly committing perjury, will the answer be--

01. "The Republic of the Philippines," an archipelago that was officially recognized as a separate and independent "country" only on July 04, 1946--after all Territorial Filipinos had already been born? Or

02. "The U.S. Territory of the Philippine Islands" or, if born after 1935, "The Commonwealth of the Philippine Islands," over which the United States exercised "all rights of possession, supervision, control, sovereignty, or jurisdiction" and did not exist as a separate and independent "country" until July 04, 1946?

But, having been disowned by the USA--the sovereign at their "Country of Birth"--in what country were Territorial Filipinos born? Why did America allow them to be rendered stateless at birth?

America, in fact, seems to have apologized to all the despised class of outcasts it had openly discriminated against through the years. In 1988, America granted US$20,000 in compensation to each of the 60,000 surviving Japanese-Americans who had been interned by the United States government during World War II, for actions that were based on "race prejudice, war hysteria, and a failure of political leadership." In 1993, America issued to Native Hawaiians the "Apology Resolution" for the 1893 overthrow of the Kingdom of Hawaii. America has also acknowledged its mistreatment of the Aboriginal Indians, the slave-born, the Chinese-Americans and even rewarded Vietnamese refugees with special immigration privileges--but not a word for Territorial Filipinos.

So when will America apologize for the cruelties it perpetrated during the Philippine-American War to compel Territorial Filipinos to owe "allegiance" to their new "sovereign," the United States?

And when will America finally recognize the true status Territorial Filipinos were entitled to be conferred with as citizens of the United States under the Citizenship Clause, read grammatically as the author intended it to convey by the pair of commas between the phrase "and subject to the jurisdiction thereof"?

What is ironic is that the U.S. Senate often scolds the Philippine Government, threatening to withhold American "aid" to its former "colony," for committing a litany of "Human Rights" violations. But a Right is a Right by whatever name ascribed, such, for instance, as the Right as precious as Citizenship. In fact, “Citizenship,” in the words of Chief Justice Earl Warren, “is man’s basic right for it is nothing less than the right to have rights.” Thus, "Every child has the right to acquire a nationality." (UN Human Rights Commission Covenant)

What should be stressed, however, is the reality that Territorial Filipinos did not line up and beg for that Right America denied them. In fact, the $20 million America paid for the cession lined the pockets of the Spanish Crown, and not a single cent went to pay for the "allegiance" America compelled Territorial Filipinos to owe.

Rather, it was America who came to Las Islas Filipinas to dwell uninvited as "illegal aliens." If Americans disliked what they saw, they ought to have departed and left the Indios to chart their own destiny alone. But the American "aliens" decided to "overstay" and insisted on buying Las Islas Filipinas in order to satisfy their sadistic pleasure of being able to look down and make fun of people of a race and color entirely different from their own by whatever derogatory language racism could coin to describe them with: "half-civilized, piratical, muck-running," "savages," "monkeys with no tail."

And so, it was the American imperialism of commanding an unwilling people to owe allegiance solely to the United States and the American adventurism of purchasing sovereignty over the territory and the Indios of Las Islas Filipinas--placing them all "subject to the jurisdiction of the United States"--that the entitlement to "citizenship at birth" the Citizenship Clause confers became, to Territorial Filipinos, theirs for the taking, in the same sense that the slave-born, similarly denied for 400 years or so, never dreamed of being recognized.

In hindsight, America should have desisted from ceding Las Islas Filipinas--thereby placing Territorial Filipinos "subject to the jurisdiction of the United States"--and, for that matter, from ratifying the Fourteenth Amendment, providing for a Citizenship Clause that embraces "all persons," irrespective of race or color, in the same way that all its previous Naturalization Acts were originally applicable only to "free white persons."

But America overstayed its welcome, abusing the hospitality and goodwill the Indios reluctantly extended.

So, isn't it about time America finally learns to accept the consequences of its cession of Las Islas Filipinas in the context of the command in the Citizenship Clause in Sec. 1 of the Fourteenth Amendment, correctly read as the author intended it to convey, conferring citizenship upon "all persons subject to the jurisdiction of the United States" residing or born in the Philippine Islands during the American territorial period?

For to quote what Justice John Marshall Harlan, dissenting in Downes v. Bidwell (1901), said of the cession:

"A mistake in the acquisition of territory, although such acquisition seemed at the time to be necessary, cannot be made the ground for violating the Constitution or refusing to give full effect to its provisions. The Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis in our history may suggest the one or the other course to be pursued.” (bold added)

Territorial Filipinos now claim that Right denied. For why continue to allow the humiliation inflicted upon, and the deprivations endured by, what is referred to as the outcast "Tago-Ng-Tago" or TNTs in America, who, mind you, are our own nonetheless--the children of Territorial Filipinos? And why do our own OFWs--the children of Territorial Filipinos--have to travel overseas to other lands in the Middle East, Asean countries and elsewhere to work and be subjected to the indignities, the religious discrimination of a different culture, to be openly abused and insulted, even (habitually) raped and thrown out from high-rise edifices--begging "For a Few Dollars More"?

Sadly and more importantly, why have the benefits of our own Territorial Filipino WWII veterans and the War of Resistance Guerrilla fighters who fought bravely to defend American territory against the onslaught of an invading enemy of the United States been denied? Why have these now-sickly veterans been made to beg for the privileges and immunities that are not only due them rightly as U.S. veterans, but to their posterity as well?

The very survival of nationhood the Philippines is now confronted with is grim; but the radical solution this paper offers inescapably involves America, the mere mention of which provokes Nationalists to howl in protest. But instead of forever getting mad and shouting invectives at America, why not get even for a change and legally demand the recognition of a Right America denied and lay open the injustice that has for so long festered?

So, in demanding for recognition, why not compel America to confront the one remaining injustice committed during its imperial past, and continues to this day to condone, that now cries out to be resolved and thereby afford our own present-day Filipinos, after over a century of denial, to claim their Right to the opportunity their forebears--America shamelessly disowned--irretrievably lost? Why wait until all of them are forever gone?

The efforts to be pursued are certainly not intended to even make a dent in what is already America's deeply ingrained "Racial Hierarchy"--"white supremacy," "non-white" inferiority--nor is this undertaking to be mistakenly viewed as a veiled attempt to propel the Republic of the Philippines to become the 51st State of the Union.

The U.S. Supreme Court in Toyota v. U.S. (1925), citing Gonzales v. Williams (1904), opined that:

"The citizens of the Philippine Islands are not aliens. They owe no allegiance to any foreign government."

So, not born "aliens," Territorial Filipinos do not even qualify to be classified as "alien immigrants," after all. For why should Territorial Filipinos be required to take the Oath of Allegiance to be "naturalized" after birth when "They owe no allegiance to any foreign government" at birth?

The confusion stems from the fact that, upon the withdrawal of American sovereignty in 1946, Territorial Filipinos became, technically, stateless at birth, disowned by the sovereign of their "Country of Birth," the United States, under a U.S. law that considered the Philippine Islands (their place of birth) to be a foreign country, retroactive, inexplicably, from the time they "were born"--"at birth"-- between 1898 and 1946.

The law should have been made to apply to persons born in the Philippine Islands after the independence of the Philippine Islands is declared, following the American withdrawal of sovereignty and certainly not retroactive before independence date, which is no doubt contrary to fact; thus, insofar as U.S. immigration laws are concerned, Territorial Filipinos were born stateless, without any "country" to call their own "at birth," without a "sovereign" at their "place of birth"--the determinant to the nationality "at birth" of a person born under jus soli.

A law that retroacts is, of course, the very definition of what Ex Post Facto connotes, for the law expressly declares that Territorial Filipinos were to be regarded as having been born in a "foreign country," although the Philippine Islands was still a territory of the United States at the time of their nativity, thereby changing the factual circumstance of their birth prior to the enactment of the law and, consequently, impairing or denying vested rights they were all entitled to claim as persons subject to the jurisdiction of the United States at birth.

The intent of the law was undoubtedly to declare the unwanted Territorial Filipinos as born "aliens" so as to render them all subject to U.S. immigration laws. To achieve this, the same law had to declare the "country" they were born in to be "foreign"; unfortunately, this "country" at the time they were born did not independently exist as yet--the Philippines Islands, their place of birth, being recognized merely as a "territory of the United States."

But why would America regard the Philippine Islands to be "foreign" when the first civilian Governor-General of the U.S. territory of the Philippine Islands from 1901 to 1903 was William Howard Taft who later became the 27th President of the United States from 1908 to 1913 and the 10th Chief Justice of the United States from 1921 to 1930? Taft, in fact, also served earlier as a judge of the Ohio Superior Court (1887-1890), as the Solicitor General of the United States (1890-1892), as a federal judge in the Court of Appeals for the Sixth District (1892-1900), later presided as Chief Justice of the Sixth District and as Secretary of War (1904-1908).

So, why consider the Philippine Islands to be "foreign" when President William McKinley in 1900 appointed Taft as the chairman of a commission to organize a civilian government in the newly-ceded Las Islas Filipinas that America bought from the Spanish Crown for $20 million under Art. III of the Treaty of Paris?

And how could the Philippine Islands be declared to be "foreign," when the U.S. Supreme Court as early as 1901--at the beginning of the American territorial period and just 7 months after the Doctrine of "Incorporated" Territory was handed down earlier in Downes v. Bidwell--already held in Fourteen Diamond Rings that:

"The Philippines thereby ceased, in the language of the treaty ... to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection.

"But it is said that the case of the Philippines is to be distinguished … because on February 14, 1899, after the ratification of the treaty, the Senate resolved … that it was not intended to incorporate the inhabitants of the Philippines into citizenship of the United States, nor to permanently annex those islands … The meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it … It is further contended that a distinction exists … because of the armed resistance of the native inhabitants ... We must decline to assume that the government wishes thus ... to place itself in the position of waging a war of conquest." (bold added)

This ruling is significant--at least insofar as the true status of Territorial Filipinos is concerned. For "although there was no stipulation that the native inhabitants should be incorporated into the body politic" under the Treaty of Paris; in the view of the Supreme Court, however, "the result was the same," no matter what the Treaty of Paris stipulated. And the reason why the denial to Territorial Filipinos of "the right to choose their nationality" is of no moment is that, upon the exchange of ratifications of the Treaty of Paris, "their allegiance became due to the United States, and they became entitled to its protection."

Barber v. Gonzalez (1954) reiterated that "persons born in the Philippines during this period were "American nationals entitled to the protection ... and conversely owing permanent allegiance to the United States."

In fact, the 1934 Philippine Independence Act (Tydings-McDuffie Law) echoed that mandate:

"Sec. 2 (a) ... pending the final and complete withdrawal of the sovereignty of the United States over the Philippine Islands--
(1) All citizens of the Philippine Islands shall owe allegiance to the United States."

And it is this "allegiance" of Territorial Filipinos that the Supreme Court said "became due to the United States" that is of paramount importance in determining their true status, since U.S. v. Rhodes, cited in U.S. v. Wong Kim Ark (1898) and decided during the same year the Citizenship Clause was enacted in 1866 proclaimed--

“All persons born in the allegiance of the United States are natural-born citizens."

Thus, having been "born in the allegiance of the United States," Territorial Filipinos, in the light of U.S. v. Rhodes, were "natural-born citizens" of the United States.

Justice Noah Haynes Swayne, who penned the decision, was, of course, merely restating the theory behind the English common-law birthright rule, traceable to Lord Edward Coke's declaration in Calvin's Case or the Case of the Postnati (1608), also cited in Wong Kim Ark:

"It is neither the climate nor the soil but allegiance and obedience that make the subject born."

Lord Coke in Calvin's Case continues concerning "the law of nature"; hence, "natural [law] born."

"Whosoever are born under one natural ligeance and obedience due by the law of nature to one sovereign are natural-born subjects: but Calvin was born under one natural ligeance and obedience, due by the law of nature to one sovereign; ergo, he is a natural-born subject.

"Whosoever is born within the King's power or protection, is no alien: but Calvin was born under the King's power and protection; ergo he is no alien."

Wong Kim Ark likewise cites the similar view of British constitutionalist, A.V. Dicey, in Conflict of Laws (1896):

"... though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England." (bold added)

This “theory” is what Blackstone in Commentaries (1765) said earlier concerning “children born abroad”:

“Natural allegiance is such as is due from all men born within the king’s dominions … For, immediately upon their birth, they are under the king’s protection … To encourage foreign commerce … all children born abroad … whose fathers were natural-born subjects are now natural-born subjects themselves.” (bold added)

Justice Horace Gray in Wong Kim Ark, in fact, repeats the “fundamental principle” on allegiance prevailing:

“The fundamental principle of the common law with regard to English nationality was birth within the allegiance-also called 'ligealty,' 'obedience,' 'faith,' or 'power'-of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual ... 'Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is ... The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.” (bold added)

So, even though born in the "unincorporated territory" of the Philippines Islands, a territory merely "appurtenant and belonging to the United States, but not a part of the United States" (Downes v. Bidwell); Territorial Filipinos can still claim--under U.S. v. Rhodes--to be "natural-born citizens" of the United States, having been "born in the allegiance of the United States." For, citizenship "in theory at least depended, not upon the locality of a man's birth ["unincorporated" or "incorporated"], but upon his being born within the jurisdiction and allegiance" (Dicey).

Allegiance, of course, is the unifier of the two distinct class of U.S. citizens--the "natural-born" and the "naturalized" and distinguishes the U.S.citizen from an "alien" who owes allegiance to a foreign power.

Allegiance, in fact, becomes the equalizer, for the obligation of allegiance that naturally attaches to the child at birth as birthright of the "natural-born" citizen, either by (a) the "right of soil" (jus soli) or by (b) the "right of blood" (jus sanguinis), is the same obligation of allegiance an "alien" is mandated to pledge after birth to be admitted as a "naturalized" citizen, after renouncing the allegiance owed to a foreign power at birth.

Thus, allegiance in compensation for protection is the sole determinant to U.S. citizenship.

Note that "citizenship at birth" by "birth within the allegiance" is consistent with Sec. 2218, 3C Am Jur 2nd (the respected legal encyclopedia), titled the "Doctrine of Jus Soli," which declares in no uncertain terms that:

"A person is born subject to the jurisdiction of the United States, for purposes of acquiring citizenship at birth, if his or her birth occurs in territory over which the United States is sovereign, even though another country provides all governmental services within the territory, and the territory is subsequently ceded to the other country." (bold added)

Clearly, under Sec. 2218, 3C Am Jur 2nd quoted above, Territorial Filipinos acquired "citizenship at birth," having been "born in the allegiance of the United States," the "sovereign" they owed allegiance to at the time their birth occurred in the U.S. territory of the Philippine Islands.

Yet, despite the weight of being "born in the allegiance of the United States" (U.S. v. Rhodes) in "territory over which the United States is sovereign" (Sec. 2218), America still denied or refused to recognize the "citizenship at birth"--"natural born," at that--Territorial Filipinos were doubtless entitled to be conferred with.

In fact, fearful of the certainty that Territorial Filipinos would be able to claim their true status later, the U.S. Congress concocted a new "identity"--"non-citizen national of the United States"--as provided under the U.S. Code:

"The term national of the United States means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."

The "status" was a "convenient construct for those who favored territorial expansion but did not wish to make the people of the new territory citizens of the United States" (José A. Cabranes, Citizenship and the American Empire, 1978), acquired from Spain, namely the Philippines, Guam, and Puerto Rico, "yet were deemed to owe 'permanent allegiance' to the United States and recognized as members of the national community in a way that distinguished them from aliens." (Charles Gordon et al., Immigration Law and Procedure, 2003).

Evidently, the purpose of calling Territorial Filipinos "Nationals of the United States"--a "status" the U.S. Constitution does not even recognize--was a clever way of accounting for their allegiance that "became due to the United States," their "sovereign," as held in Fourteen Diamond Rings cited above. But since the term "nationality" is generally regarded as synonymous with "citizenship," the U.S. Congress shrewdly attached the "killer" qualifier, "non-citizen," worded in no uncertain terms as "though not a citizen of the United States," to rule out any possibility of Territorial Filipinos claiming the Right to U.S.Citizenship later, thereby legitimizing the denial of their "citizenship at birth," even though they were born owing allegiance to the United States.

Later in 1934, the "identity" of the unwanted, the despised was finally downgraded, to read: Territorial Filipinos "shall be considered as if they were aliens," claiming that the Philippine Islands as held in the Insular Cases (1901) was "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” (to repeat for emphasis, "the revenue," not the Citizenship, Clause), such that the Philippines Islands "shall be considered as a separate country" and immigration laws "shall apply to persons who were born in the Philippine Islands." (Note: "were born")

Thus, under American law (the Philippine Independence Act or the Tydings-McDuffie Law), the Philippine Islands "shall be considered as a separate country" retroactive at the time they "were born" although, inexplicably, "the final and complete withdrawal of sovereignty over the Philippine Islands" by the Unites States was still to take effect prospectively later on July 04, 1946 yet--after all of them had already been born.

Territorial Filipinos "who were born in the Philippine Islands" were thus pronounced not only as "aliens" at birth--which was doubtless what the law was intended to accomplish--but stateless at birth as well, since there is no other "country" that officially existed at the time they "were born" they could rightly claim to having been born in, the Philippine Islands being merely a territory of the United States at that time of their birth, 1898-1946.

As it is now, there exists this ludicrous situation where Territorial Filipinos--persons owing allegiance to the United States at birth or their children--are obligated to repeat the Oath of Allegiance before they are admitted as "naturalized citizens," are required to secure a U.S. visa to work or study and deported for overstaying as TNT's in their "country of birth," and denied benefits as WWII veterans--because of a law that is based on a supposition, contrary to fact--the Philippine Islands was a "separate country" at the time they "were born."

But even granting that the Philippine Islands was now a "separate country" from the United States and Territorial Filipinos "were born" aliens; why were citizens of the United States not treated equally as aliens in the now-supposed "separate country" of the Philippine Islands during that same period?

So--"separate and unequal"--is this how America now interprets the solemn words "All men are created equal" ingrained in its Declaration of Independence from British colonial rule in 1776?

In fine, by asserting that the Philippine Islands was a "separate country" at the time Territorial Filipinos "were born," the law declares that the American territorial period that lasted for 48 years never existed at all there.

In fact, regarding the preposterous government claim that "territory [could] be foreign and domestic at the same time," the Supreme Court in Fourteen Diamond Rings (1901), citing De Lima v. Bidwell (1901), held:

“’This theory also presupposes … that everything may be done which a government can do within its own boundaries, and yet that the territory may still remain a foreign country … To hold that this can be done as matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court." (bold added)

And so, as the Excluded, the Excepted, the "identity" of Territorial Filipinos under American law may be likened to the Homo Sacer (Latin for the “sacred man” in the negative sense) the Italian philosopher Giorgio Agamben in Homo Sacer: Sovereign Power and Bare Life (1998) defined as an individual submitted to the “sovereign’s state of exception” who exists as a legal “exile,” which, to him, is a “paradox,” since “the law that mandates the exclusion is also what gives the individual an identity.” (http://en.wikipedia.org/wiki/Homo_sacer):

Under this new definition, therefore, allegiance is not anymore the determinant to citizenship.

In fact, insofar as the unwanted Territorial Filipinos in particular are concerned, the allegiance they owed to the United States at birth was meaningless. Thus, the U.S. Congress could now divest at its pleasure the merely statutory (not constitutional) "identity" of "non-citizen national" it designated Territorial Filipinos with in a neat "legal" way which, of course, means that allegiance owed, whenever convenient, can now be turned on or off.

But what of the allegiance aliens--who owe allegiance to a foreign power at birth--are required to pledge after birth to be admitted as naturalized U.S. citizens? Is the allegiance aliens owe after birth different from that Territorial Filipinos owed at birth, designated merely as "non-citizen nationals"?

If there really is a difference between the allegiance owed by naturalized citizens and that by Territorial Filipinos, how was the difference determined? Was it based upon race, color, creed, or purse, even "place of birth"? But allegiance "in theory" depended "not upon the locality of a man's birth" (Dicey). For "allegiance is nothing more than the tie or duty of obedience" (Wong Kim Ark); the synonym, "loyalty," in fact, although a kind of "feeling," may be subject to validation, for “The test of loyalty is conduct rather than intensity of feeling.”
(Kleinig, "Loyalty," Standford Encyclopedia of Philosophy, 2007, http://plato.stanford.edu/entries/loyalty/)

In the particular unique case of Territorial Filipinos, their allegiance was tested in the crucible of war.

Commonwealth of the Philippines Chief Justice Jose Abad Santos, pledged the same allegiance before being shot and martyred in front of his grieving son by soldiers of the Land of the Rising Sun, for refusing to collaborate with the puppet government that would be instituted by the Empire of Japan--the enemy the United States was at war with--that invaded and occupied the U.S. territory of the Philippine Islands, by proclaiming:

“I cannot possibly do that, because if I do so, I will be violating my oath of allegiance to the United States."

And what of the same Oath of Allegiance sworn to by thousands of Territorial Filipino Patriots the President of the United States, as Commander-in-Chief, ordered into the service of the U.S. Armed Forces, together with armed Guerrilla Resistance Fighters, to defend and protect American territory in gory battlefields during WWII?

Then, there was the Duty of Allegiance the U.S. President exhorted "every Philippine man, woman, and child" to uphold and exercise as "the loyal Americans of the Philippine Islands" in his "Message to the Filipino People" issued on Dec. 28, 1941, barely three weeks after the Japanese sneak attack on Pearl Harbor:

“In this great struggle of the Pacific, the loyal Americans of the Philippine Islands are called upon to play a crucial role ... It is not for me or for the people of this country to tell you where your duty lies. We are engaged in a great and common cause. I count on every Philippine man, woman, and child to do their duty. We will do ours.” (bold added) (http://www.presidency.ucsb.edu/ws/?pid=16076)

Take careful note that, perhaps the only other time a U.S. President was compelled to call upon “the loyal Americans” to defend American soil against an invading army (British) was during the War of 1812; so, how many Patriots still alive today, other than Territorial Filipinos, have had the privilege of being called upon by the U.S. President, no less, “to do their duty” of, and “to play a crucial role” in, defending American territory?

But, why, pray tell, was the allegiance ALL Territorial Filipinos owed at birth--the allegiance their sovereign obligated "the loyal Americans of the Philippine Islands" to owe, the allegiance "every Philippine man, woman, and child" validated and ennobled in blood and tears as a Call to Duty to uphold and support the Constitution in Time of War--singled out to be deemed worthless by the very sovereign they willingly owed it to and to no other, while the very same allegiance aliens pledge to owe after birth, but only after renouncing the allegiance they initially owed to a foreign power at birth, entitles these aliens to citizenship of the United States? Why?

If "all persons born in the allegiance of the United States are natural born citizens" of the United States, why was the same allegiance Territorial Filipinos owed at birth to their sovereign, the United States, who sacrificed their lives, their fortunes in obedience to the Call to Duty by the President of the United States treated differently?

This paper is an attempt to address that grievous anomaly and to resolve the persistent question that still haunts Territorial Filipinos to this day, in spite of the torrent of disappointing court decisions, SCOTUS and appellate:

The issue: Were persons born in the Philippine Islands during the American territorial period really entitled under the Citizenship Clause in Sec. 1 of the Fourteenth Amendment to claim the Right to citizenship of the United States at birth that America denied and refused to recognize?

But is there really a constitutional mandate explicitly worded in no uncertain terms to justify the claim that Territorial Filipinos were citizens of the United States at birth?

The arguments to be presented here are entirely new and may be the first time they have ever been raised; the authors, therefore, beg the indulgence of the reader to assist them in identifying certain critical points they may have missed or failed to appreciate their relevance, so that the arguments they have presented in this paper may at least become the subject of a deeper study by others towards an acceptable revision and, perhaps, a favorable resolution later of the main issue raised concerning a Right Territorial Filipinos were entitled to enjoy.

This paper will argue that, upon the exchange of ratifications of the 1898 Treaty of Paris, Territorial Filipinos and their children born subsequent thereto, became persons "subject to the jurisdiction" of the United States; and hence, acquired citizenship of the United States at birth, even after birth, as the case maybe, constitutionally, under the Citizenship Clause of the Fourteenth Amendment, grammatically read as the author intended:

“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.” (bold added)

However, under U.S. v. Wong Kim Ark--decided, interestingly, in 1898, during the same year the Treaty of Paris was signed--the phrase, "and subject to the jurisdiction thereof," is read as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States" (the commas enclosing it, notwithstanding), to exclude the "recognized exceptions to the fundamental rule of citizenship by birth within the country"--

“The real object in qualifying the words ‘All persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof’ would appear to have been to exclude … [the] recognized exceptions to the fundamental rule of citizenship by birth within the country.” (bold added)

But Chief Justice Melville Fuller (joined by Justice John Marshall Harlan), dissenting, countered:

“Was there any necessity of excepting them? And, if there were others described by the words, why should the language be construed to exclude them" ... There was no necessity as to them for the insertion of the words, although they were embraced by them.” (bold added)

Indeed, why waste words for already "recognized exceptions"--"as old as the rule itself" (Wong Kim Ark)--and unnecessarily provoke a superfluity or the possibility of being misinterpreted later? Besides, by employing the rather cautious, guarded phrase "would appear," the opinion itself is uncertain of the view thus expressed

Chief Justice Fuller continues, in dissent, with a more disturbing note that may greatly affect the presidential bid of Republican presumptive candidate Sen. John McCain, born in the "unincorporated" Panama Canal Zone:

“If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect.” (bold added)

Without intending disrespect, this paper will argue, that the stare decisis Wong Kim Ark reading of the phrase in the Citizenship Clause, "and subject to the jurisdiction thereof"--by disregarding altogether the grammatical significance of the pair of commas inserted between--is a MONUMENTAL READING ERROR!

Based on this misreading of the Clause, the U.S. Supreme Court in Rabang v. Boyd (1957) held that:

"In the Independence Act, the Congress granted full and complete independence to the Islands, and necessarily severed the obligation of permanent allegiance owed by Filipinos who were nationals of the United States. Anything less than the severance of the ties for all Filipinos, regardless of residence in or out of the continental United States, would not have fulfilled our long-standing national policy to grant independence to the Philippine people. Section 14 of the Independence Act in clear language applies 'to persons who were born in the Philippine Islands.' This language demonstrates, and we hold, as did the courts below, that persons born in the Islands, and who thereby were nationals of the United States became aliens on July 4, 1946." (bold added)

Later, the U.S. 9th Circuit Court of Appeals, in Rabang v. INS (1994), said:

“The courts have, however, uniformly rejected claims that people born in the Philippines during the territorial period retained their "national" status after Philippine independence. [Rabang v. Boyd (1957)] (rejecting claim that status as a United States "national" was so related to "citizenship" that U.S. relinquishment of the Philippine Islands could not divest petitioner of his U.S. nationality); Manguerra v. INS [9th Cir.1968] (rejecting argument that United States nationality could not be taken away without consent); Cabebe v. Acheson [9th Cir.1950] (rejecting claim that Congress did not have power to divest petitioner of nationality) ... “We now hold 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.” (bold added)

In a spirited dissent, Judge Harry Pregerson insisted that the Philippine Islands was part of the “dominion of the United States,” and thus persons born there during the American territorial period are U.S. citizens.

In 1998, the U.S. 2nd Circuit Court of Appeals in Valmonte v. INS (with Atty. Elly Velez Pamatong as counsel for Petitioner) unanimously dismissed a similar claim, simply citing the 9th Circuit rationale held in Rabang.

Nonetheless, to repeat what Dicey said, as quoted in Wong Kim Ark and cited earlier here, concerning the relationship of the status "at birth" to "the place of a person's birth"--"it in theory at least depended , not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance."

Thus, this paper will argue that, although Rabang v. INS, quoted above, held that, "birth in the Philippines during the territorial period does not constitute birth in the United States under the Citizenship Clause"; Territorial Filipinos, however, were born "in the allegiance of the United States" in the U.S. territory of the Philippine Islands during the American territorial period, and hence, acquired U.S. "citizenship at birth" under a still-unrecognized category of the Citizenship Clause, correctly read as the author intended it to convey, conferring U.S. citizenship not only upon "All persons born in the United States," but also upon "all persons subject to the jurisdiction thereof."

But how is "owing allegiance" to the United States" related somehow to being “subject to the jurisdiction thereof" in the Citizenship Clause? Sen. Lyman Trumbull, Judiciary Committee Chair and co-sponsor of the Fourteenth Amendment, defined this relationship during the Citizenship Clause debate on May 30, 1866:

"Mr. TRUMBULL … What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means. "

Chief Justice Morrison R. Waite discussed the "reciprocal" relationship in Minor v. Happersett (1874):

“Allegiance and protection are, in this connection (that is, in relation to citizenship) reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance."

To repeat what the U.S. Supreme Court in Fourteen Diamond Rings said which is evidently the reason why America decided to disown Territorial Filipinos: "although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality"--

"The result was the same," because "Their allegiance became due to the United States, and they became entitled to its protection." And it is this "reciprocal protection" as citizens of the United States that the Citizenship Clause guarantees to be conferred upon "all persons subject to the jurisdiction of the United States" in return for owing allegiance thereto that entitles Territorial Filipinos born "in the allegiance of the United States" to be recognized as citizens of the United States at birth.

For "persons owing allegiance to the United States" are, reciprocally, in return, "persons subject to the jurisdiction thereof"--persons the still-unrecognized category in the Citizenship Clause, correctly read as the author intended to convey, confers the Right to claim citizenship of the United States.

B. THE ELLIPTICAL AND THE SECOND CATEGORY BETWEEN THE PAIR OF COMMAS
At the outset, take note that the words "or naturalized" in the Clause as ratified do not appear in the draft the author, Senator Jacob Merritt Howard, proposed that was debated and "agreed to" on the same day he submitted it on May 30, 1866. They were inserted a week later on June 8th, upon motion of Sen.William Pitt Fessenden (without any debate). So, sans the words “or naturalized,” Sen. Howard's original draft reads:

"All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Shorn of all modifiers and leaving the crucial pair of commas intact, Sen. Howard's draft simply reads:

"Persons born, and subject to, are citizens."

The main thrust of this paper will be to argue that, grammatically read correctly as the author, Sen. Jacob Merritt Howard, intended it to convey, the Citizenship Clause he proposed (and, to repeat, without the words "or naturalized," which was inserted a week later after his draft was "agreed to") during the 39th Congress, First session on May 30, 1866 actually consists of a compound subject (joined by the conjunction "and" with a common predicate), owing to the pair of commas he enclosed the phrase "and subject to the jurisdiction thereof" with, inserting the first comma before the coordinator "and," the second before the linking verb "are."

In fact, by enclosing the phrase, "and subject to the jurisdiction thereof," between a pair of commas, the author is conveying the intention that the phrase is to be read as "non-restrictive," precisely, to distinguish it from being confused later as "restrictive" (without the commas)--grammatically, a qualifier or modifier of the element preceding it--which is how Wong Kim Ark mistakenly read the phrase, despite the pair of commas enclosing it.

In this context, a "restrictive" phrase is what the same 39th Congress employed in a similar clause in the 1866 Civil Rights Act it enacted barely two months earlier, by omitting the comma before the conjunction "and":

"All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."

Here, owing to the omission of the comma before the conjunction "and," the phrase "not subject to any foreign power" is undoubtedly "restrictive," a "qualifying" phrase of the element preceding it, "All persons born."

Obviously to avoid the difficulty encountered in phrasing a "repeated subject" in a "coordinate compound," the author inserted the crucial first comma before the conjunction "and" to avail of the grammatical device of an elliptical. Thus, the phrase "and subject to the jurisdiction thereof" is actually the elliptical for the complete construction of the second subject of the compound, "and all persons subject to the jurisdiction of the United States," with the main noun phrase "all persons" understood and omitted rather than repeated or stated for brevity or style, inferable from the same noun phrase, "All persons," in the first subject it is coordinate with ("All persons born or naturalized"), defining a still unrecognized, second category of "citizens of the United States."

Sen. Howard could have used the applicable plural pronoun “those” (of the "repeated subject"--"all persons") to read: “and those subject to the jurisdiction thereof” (and could have even avoided inserting the pair of commas); but the word “those” is a vague, ambiguous pronoun deemed inappropriate in formal or legal writing.

Then there is the other "elliptical"--the compound object of the linking verb "are"--"citizens of the United States and [citizens] of the State wherein they reside," with the second object, "citizens," common to both, Sen. Howard omitted to be understood rather than repeated or stated, again, for brevity or style.

During the debate, in fact, Senator James Doolittle directly quoted (in quotation marks) how “the language” of the phrase "and subject to the jurisdiction thereof" was understood to mean--affirming its elliptical structure:

"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 for emphasis the phrase quoted: "All persons subject to the jurisdiction of the United States."

Surprisingly, Sen. Doolittle’s direct quotation of how the phrase was understood to be employed has never been accorded the critical attention it deserves and remains to this day lamentably unnoticed.

Thus, as intended by the author, Senator Howard, the complete construction of the Citizenship Clause (consisting of a compound subject ) confers not just one category of citizens of the United States, but two:

First category: "All persons born [or naturalized] in the United States," ("or naturalized" inserted later) and
Second category: "[all persons] subject to the jurisdiction thereof (elliptical phrase with "all persons" omitted)

This reading conferring two categories harmonizes with what Senator Howard emphasized during his speech that the draft he authored provides an all-encompassing, comprehensive definition of citizenship:

“Mr. HOWARD. This amendment which I have offered 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)

Indeed, if the goal was to settle "the great question of citizenship" Senator Howard underscored in his sponsorship speech; then, the IDEAL Clause that "removes all doubt as to what persons are or are not citizens of the United States" would be a phraseology that not only includes "All persons born" but one that includes as well what "the law of the land already" declared "by virtue of natural law and national law" to be citizens of the United States at that time in 1866, which is what the "language" of the SECOND category Sen. Doolittle directly quoted during the debate addresses to resolve with finality: "All persons subject to the jurisdiction of the United States"--at birth or after birth.

For take careful note that the Second category confers U.S. citizenship upon persons not only at birth, as in the First Category (persons “born”), but also after birth, as in persons “naturalized.”

This is significant, since there is no territorial restriction; for, as distinguished from the First, “born or naturalized in the United States,” which upholds the acquisition of citizenship based on place of birth under the Doctrine of Jus Soli, the Second category does not refer to a named or described place or location where persons “subject to the jurisdiction of the United States” are required either to be born or to reside in,

In particular, the Second category does not specify, much less imply, any such place, Congress or the Court may define as “appurtenant and belonging to the United States, but not a part of the United States” (Insular Cases), “organized,” “incorporated,” “ceded,” “annexed,” “contiguous,” “insular,” “occupied,” even "territory" or "colony," or any other synonymous term, which is to be regarded as the determinant place of birth or residence.

Rather, irrespective of the synonyms of the term "place," it is the "sanctity of the person" and the circumstance of being “subject to the jurisdiction of the United States” that alone matters to qualify under the Second category.

With no territorial restriction in the phraseology, Sen. Howard's Second category is apparently a broadside against the "John Calhoun theory of citizenship," popular during the antebellum and the advocates for "slavery in the territories." In Resolutions on the Slave Question (1847), Sen. Calhoun declared:

"That the territories of the United States belong to the several States composing the Union ... That the enactment of any law, which should directly, or by its effects, deprive the citizens of any of the States of this Union from emigrating, with their property, into any of the territories of the United States ... would, therefore, be a violation of the constitution and the rights of the States from which such citizens emigrated," (bold added)

Justice Miller in the Slaughter-House Cases (1873) highlighted the same diversity of opinions prevailing:

“It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens ... [the Clause] “puts at rest both the questions.” (bold added)

Thus, under Sen. Calhoun's theory, "National citizenship depended upon state citizenship" and, slaves being "property" (Dred Scott), the federal government had no right to interfere with slaveholders taking their "property" (or bringing their slaves and slavery) into a U.S. territory, to establish a new slave-holding territory.

However, under the Clause Sen. Howard wisely drafted, the determinant to citizenship under the Second category is the circumstance of the person being "subject to the jurisdiction of the United States" at birth or after birth, irrespective of place of birth, whether unorganized or organized, incorporated or unincorporated, territory, employing a similar phraseology the same 39th Congress used in wording the earlier Thirteenth Amendment.

Thus, the rather blunt reminder Sen. Howard directed at his colleagues during the heat of the debate is that "this question of citizenship” his draft was intended to resolve would now lie "beyond the legislative power":

“Mr. HOWARD. We desired to put this question of citizenship and the rights of citizenship and freedmen beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by its roots and destroy it, and expose the freedmen again to the oppressions of their old masters.” (bold added)

Clearly, the SECOND category embraces "every other class of persons" Sen. Howard referred to, including what is now the controversial issue involving children of U.S. citizens born abroad " (Sen. John McCain) already declared "natural-born" under the Naturalization Act of 1790 yet.

The SECOND category, in fact, definitively "settles the great question citizenship" that "has long been a desideratum in the jurisprudence and legislation of this country”; for it includes within its grasp even the FIRST category, "All persons born" (at birth), and, for that matter, aliens "naturalized" (after birth), which explains the reason why the phrase "or naturalized" does not appear in Sen. Howard's original draft that the Senate debated and approved on May 30, 1866, but was inserted only a week later on June 8th upon motion of Sen. William Pitt Fessenden (to be discussed later here).

Thus, the Wong Kim Ark reading that recognizes only the FIRST category alone in Sen.Howard's original draft, "All persons born in the United States" (sans "or naturalized" inserted later) would be unable to satisfy what Sen. Howard boldly proclaimed in his sponsorship speech that the draft he proposed "will include every other class of persons," "settles the great question of citizenship" and "removes all doubt as to what persons are or are not citizens of the United States."

Under the Second category, the following “persons” acquire citizenship of the United States at birth or after birth from and after the moment they become “subject to the jurisdiction of the United States” "by virtue of natural law [jus soli] and national law [Naturalization Acts since 1790]," irrespective of where they are born or residing:

Second Category citizenship acquired by "persons subject to the jurisdiction of the United States"
at birth (Natural-born):
01. Children of U.S. citizens born abroad.
02. Persons born in ceded or annexed territory over which the United States exercises the rights of sovereignty and jurisdiction from the time of formal territorial cession or acquisition.

Second Category citizenship acquired by "persons subject to the jurisdiction of the United States"
after Birth (Naturalization):
01. Inhabitants and aliens residing in ceded or annexed territory by “collective naturalization” from and after the moment the United States exercises the rights of sovereignty and jurisdiction and who opt to renounce (rather than preserve) their allegiance to their previous sovereign.
02. Aliens naturalized--but only those “naturalized in,” not outside of, “the United States” owing to the insertion of the words “or naturalized” after the word “born” in the Clause as ratified with the determinant phrase “in the United States,” common to both.

In fact, insofar as the acquisition of citizenship by “naturalization” ("after birth") under the Second category is concerned, the most telling argument during the debate for the recognition of a Second category comes from remarks of the author, Sen. Howard, no less, in the course of his vigorous objection to Sen. James Doolittle’s proposal to insert the words, “excluding Indians not taxed,” to his draft.

The term “naturalization” is defined under the United States Code as the “the conferring of nationality of a state upon a person after birth by any means whatsoever." Note the keywords “after birth.”

To recall, the phrase “and subject to the jurisdiction thereof,” as claimed under Wong Kim Ark, is read as a “qualifying” phrase of the element preceding it, “All persons born” or “at birth”--which is proposed to be qualified further under Sen. Doolittle’s amendment by the words, “excluding Indians not taxed.”

In objecting to Sen. Doolittle's proposal, Sen. Howard mentions “naturalization” several times in this manner:

“Mr. HOWARD … Does he suppose to leave the amendment [“excluding Indians not taxed] in such a condition that the State of Wisconsin … will have the right to impose taxes upon the Indian tribes within her limits, and thus make of those Indians … citizens of the United States … It would, in short, be a naturalization, whenever the States saw it fit to impose a tax upon the Indians.”

“Mr. HOWARD … The great objection, therefore, to the amendment [“excluding Indians not taxed] is, that it is an actual naturalization, whenever the State sees fit to enact a naturalization law in reference to the Indians in the shape of the imposition of a tax of the whole Indian population within their limits.”

“Mr. HOWARD … But the great objection to the amendment [“excluding Indians not taxed] to the amendment is that it is an unconscious attempt on the part of my friend from Wisconsin to naturalize all the Indians within the limits of the United States. I do not agree to that … I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relationship, are to become my fellow-citizens.”

Now, why would Sen. Howard call as “naturalization” (the status that can only be conferred “after birth”) the status conferred “at birth” that Wong Kind Ark claims is what the Clause is all about, which is that “All persons born in the United States” must at the moment of their birth, be (1) “subject to the jurisdiction thereof” and, had Sen. Doolittle’s amendment been accepted, (2) “excluding Indians not taxed”?

And why would Sen. Howard, certainly aware that naturalization applies only to persons “after birth,” contradict himself by arguing that Sen. Doolittle’s proposal “would, in short, be a naturalization” or “an unconscious attempt … to naturalize all the Indians,” tantamount to “a sweeping act of naturalization” upon persons after birth, if, as claimed in Wong Kim Ark, the phrase "subject to the jurisdiction" is a qualifier of "All persons born" or at birth?

The reason behind is obvious: Senators Howard and Doolittle, as well as the 39th Congress for that matter, understood the phrase “and subject to the jurisdiction thereof” to act, not as a “qualifier” to “All persons born,” as claimed under Wong Kim Ark, but as the Second category of citizens of the United States at birth or after birth.

Thus, under Sen. Doolittle's amendment, from and after the moment a State “imposes taxes upon Indian tribes within her limits,” Indians thus “taxed” would immediately fall under the Second category, by becoming “persons subject to the jurisdiction of the United States,” acquiring thereby U.S. citizenship by “naturalization” after birth “whenever,” in the words of Senator Howard, “the States saw it fit to impose a tax upon the Indians.”

Justice John Marshall Harlan, dissenting in Elk v. Wilkins (1884), argues that the Clause similarly confers citizenship not only upon "All persons born," but also upon persons "subject to the jurisdiction" after birth:

“Our brethren, it seems, construe the Fourteenth Amendment as if it read: ‘All persons born subject to the jurisdiction of, or naturalized in, the United States are citizens of the United States and of the State wherein they reside;’ whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States.” (bold added)

What Justice Harlan is saying here is that the Clause should be read as likewise conferring citizenship upon persons, not only "at birth," but “from and after the moment they become subject to the complete jurisdiction of the United States” or after birth,“ or by "naturalization," in respect of persons born in this country."

Even more significant, recognition of the Second category refutes altogether Justice Brown's argument in the Insular Case of Downes v.Bidwell (1901) relied on in later cases to deny birthright claims of Territorial Filipinos:

“The 13th Amendment to the Constitution, prohibiting slavery and involuntary servitude 'within the United States, or in any place subject to their jurisdiction,' is also significant as showing that there may be places within the jurisdiction of the United States that are no part of the Union …

“Upon the other hand, the 14th Amendment, upon the subject of citizenship, declares only 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.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place 'subject to their jurisdiction.'”

On the contrary, correctly read as intended, the Citizenship Clause imposes no “limitation” whatsoever; for under its Second category, citizenship of the United States is “extended” not only to “persons born or naturalized in the United States” but also upon “all persons subject to the jurisdiction thereof" at birth or after birth.

Thus, with the Citizenship Clause grammatically read, the two post-Civil War Amendments, 13th and 14th, can now be viewed to convey instead consistency, oneness of intent--Equal Protection in two areas of concern in relation to--“the sanctity of the person”: (1) "in the United States"; and (2) "subject to the jurisdiction thereof.”

Thirteenth Amendment: The abolition of Slavery or Involuntary Servitude inflicted upon the person:
(1) "within the United States"; or
(2) "any place subject to their jurisdiction."

Fourteenth Amendment: The benefits, privileges and immunities U.S. Citizenship confers upon the person:
(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof"

This paper will argue that Territorial Filipinos were "persons subject to the jurisdiction" of the United States qualified to claim citizenship of the United States under this now-forgotten SECOND category of citizens of the United States the author, Sen. Howard, intended the Citizenship Clause to confer.

The Philippine-American War, in fact, was waged precisely to assert America's Right of sovereignty and jurisdiction in and over the territory and people of Las Islas Filipinas Spain ceded under the Treaty of Paris.

Thus, by Proclamation 2695, "Philippine Independence," Pres. Harry S. Truman, declared on July 04, 1946:

"The United States hereby withdraws and surrenders all rights of possession, supervision, jurisdiction, control, or sovereignty in and over the territory and people of the Philippines."

Justice Harlan in Grafton v. U.S. (1907), among other similar Court rulings, confirms that Territorial Filipinos were "inhabitants" in territory over which the "jurisdiction and authority of the United States" was "paramount":

"The government of a state does not derive its powers from the United States, while the government of the Philippines owes its existence wholly to the United States, and its judicial tribunals exert all their powers by authority of the United States. The jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount." (bold added)

In Barber v. Gonzalez (1954) at Footnote (1), citing Hooven & Allison Co. v. Evatt (1945):

"From the Spanish cession in 1898 until final independence in 1946, the Philippine Islands were American territory subject to the jurisdiction of the United States."

This paper will argue further why obligating the children of Territorial Filipinos born after the cession--now "subject to the jurisdiction" of the United States--to owe allegiance to their new sovereign reciprocally in return for the protection so afforded, entitled them under the Citizenship Clause to Birthright of the "natural-born."

For, to repeat what Justice Noah Haynes Swayne in U.S. v. Rhodes said during the same year Congress approved the Citizenship Clause in 1866, birth "in the allegiance"--Birthright--defines the "natural-born."

“All persons born in the allegiance of the United States are natural-born citizens."

And, since the Birthright denied is doubtless constitutional, there is recourse to Afroyim v. Rusk (1967):

"Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.” (bold added)

The supremacy of a constitutional Right asserted is relevant as regards Article IX of the 1898 Treaty of Paris:

"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress." (bold added)

Justice John Marshall Harlan in his dissent in Downes v. Bidwell (1901), however, said:

“This was nothing more than a declaration of the accepted principles of international law applicable to the status of the Spanish subjects and of the native inhabitants. It did not assume that Congress could deprive the inhabitants of ceded territory of rights to which they might be entitled. (bold added)

Justice Hugo Black, writing for the majority in Reid v. Covert (1957), reiterates this principle:

“There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty." (bold added)

Ironically, it may well be this now-forgotten, in "suspended animation," SECOND category of the Citizenship Clause that the presumptive Republican 2008 presidential candidate, Sen. John McCain, will be constrained to invoke to constitutionally overcome the claim that he does not qualify to be “natural-born”--a qualification for the Office of President--having been born in the Panama Canal Zone, a territory "unincorporated," not "in the United States," even if born to American parents.

C. COLONIAL MENTALITY AND THE FUNDAMENTAL RIGHT TO HAVE RIGHTS
This paper is undertaken to stimulate efforts and drum up support to vindicate a Fundamental Right America denied Filipinos during the American Territorial period—their Birthright, that is, as natural-born citizens of the United States, a Right America refused to recognize what the U.S. Constitution confers.

Nationalists are wont to dismiss efforts to link the fate of Filipinos to Americans as "colonial mentality"--the pejorative term defined as "a cultural notion of inferiority sometimes seen amongst populations previously subjugated and colonized by foreign entities"--or "a form of internalized oppression" (David and Okazaki).

Nothing in this paper, assuredly, resurrects "colonial mentality." For it survives only in the mind of the submissive, the unquestioning, where the "mentality" of a "colonial" lurks, thrives--a "mentality" incessantly brainwashed to be intimidated, to be cowed, even to be awed, by anything resembling Anglo-Saxon "white."

In a way, the purpose is still Nationalistic, because it is a collective demand by a once subjugated "non-white" race--proud and God-fearing--the Filipino People, to a former colonizer and sovereign, America, to recognize a Right withheld, a blatant denial spawned by dictates of prejudice, racism, intolerance, discrimination.

The very survival of nationhood the Philippines is now faced with is grim; but the radical solution this paper offers inescapably involves America, the mere mention of which provokes Nationalists to howl in protest. But instead of forever getting mad and shouting invectives at America, why not get even for a change and legally demand the recognition of a Right America denied--a Right that naturally ("by virtue of natural law") attaches at birth and remains preserved, even if unrecognized or ignored, unless voluntarily renounced or surrendered?

But, if Territorial Filipinos were despised and unwanted, the feeling was certainly mutual. Indios, in fact, objected to the cession and even declared War over American occupation, protesting that the 1898 Treaty of Paris was negotiated and signed without their consent--the same legitimizing "Consent of the Governed" the thirteen original British colonies in America ironically embodied in their 1776 Declaration of Independence.

The enjoyment of a Right constitutionally guaranteed, or of any Right for that matter, is, of course, available to all who qualify and may not be denied nor refused simply because a huge number of those eligible to enjoy the Right comes from a different race, color, creed or purse, who are "half-civilized, piratical, muck-running."

Yet, this is precisely the premise behind why Filipinos were denied the Right to U.S. citizenship--the reality that there were several million non-white "savage" Indios inhabiting Las Islas Filipinas (1903 Census, 7,635,426; 1939, 16,000,303), not to mention their children to be born later, who would be qualified to claim the Right the Citizenship Clause in Sec. 1 of the Fourteenth Amendment to the U.S. Constitution guarantees to be enjoyed.

This view is best expressed in the remarks of Sen. G.G. Vest who voted against the ratification of the Treaty of Paris (see Objections to Annexing the Philippines, The North American Review, Vol. CLXVIII, No. 506, 1898):

"I am opposed to annexing the Philippines because such annexation makes the people of those islands ultimately citizens of the United States … The idea of conferring American citizenship upon the half-civilized, piratical, muck-running inhabitants of two thousand islands, seven thousand miles distant, in another hemisphere ... is so absurd and indefensible that the expansionists are driven to the necessity of advocating the colonial system of Europe." (bold added)

Mark Twain, American humorist and Anti-Imperialist League president, led the protest with other prominent personalities against Philippine annexation in his satirical essay: "To the Person Sitting in Darkness" (1901):

"For, presently, came the Philippine temptation … The game was in our hands. If it had been played according to the American rules, Dewey would have sailed away from Manila as soon as he had destroyed the Spanish fleet … and left the competent Filipino army to starve out the little Spanish garrison and send it home, and the Filipino citizens to set up the form of government they might prefer … according to Filipino ideas of fairness and justice -- ideas which have since been tested and found to be of as high an order as any that prevail in Europe or America.” (bold added)

America, indeed, should have left forthwith and allowed Philippine Independence and the first Asian Republic (a Constitution and Bill of Rights) Revolutionary leader, Gen. Emilio Aguinaldo, proclaimed earlier, to flourish.

But note that, in Macleod v. U.S. (1913), the U.S. Supreme Court recognized the "so-called republic" that ruled Cebu for nearly to two months and held that "tariff duties upon a cargo of rice "paid to the de facto authorities at Cebu" were "goods [that] had been entered at a port not under American control, and in possession of a de facto insurrectionary government," "with power to enforce the collection of duties" (see also Resil B. Mojares, War Against the Americans, Resistance and Collaboration in Cebu:1899-1906, 1999):

"The Spanish forces evacuated the island of Cebu on December 25, 1898 … Shortly thereafter the native inhabitants, formerly in insurrection against Spain, took possession of the island, formed a so-called republic, and administered the affairs of the island until possession was surrendered to the United States on February 22, 1899, prior to which time no authorities of the United States had been in the island, and the United States had not been in possession or occupation of the island, it having been up to that time in the actual physical possession of the Spanish and the people of the island. (bold added)

But America in the end decided to overstay their welcome. And it was this overpowering insistence of "The Lust for Empire" (Sen. George Hoar)--the "temptation" (Twain) to purchase and colonize Las Islas Filipinas and the concomitant right of sovereignty and jurisdiction over the territory and its people--that entitled these "savage" Indios, now "subject to the jurisdiction of the United States," and their children born subsequent thereto, to the Right to claim citizenship of the United States and the protection such citizenship affords, in return for the reciprocal obligation to owe allegiance to no other, but to the new sovereign, the United States, alone

Sen. Lyman Trumbull, Judiciary Committee Chair and co-sponsor of the Fourteenth Amendment, during the Citizenship Clause debate defined "allegiance" in relation to the phrase “subject to the jurisdiction thereof":

"Mr. TRUMBULL … What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means ... "

This paper will argue that the allegiance owed at birth to the sovereign determines Birthright. Thus, without the reciprocal allegiance Indios were obligated to owe their new sovereign in return for the sovereign protection extended to Indios born "subject to its jurisdiction," Birthright does not lie.

Rather than pray in earnest for financial assistance, beg on bended knees for usurious loans to be condoned or even seek compensation for the inequity and injustice endured, this paper demands from America that the Right denied to two generations of Filipinos and their posterity, their Right to the opportunity, the pursuit of happiness that all citizens of the United States are entitled to enjoy be recognized, honored and upheld.

Irving Brant in The Bill of Rights: It's Origin and Meaning (1965) forcefully asserts this militant approach:

"Unconstitutional precedents create constitutionality."

"Human rights are not to be denied because some judges went wrong a hundred years ago. Judicial disagreements produce dissenting opinions, and dissenting opinions publicize the disagreements. They also educate the public, which then helps to turn the remedial dissents into the law of the land.”

D. THE U.S. TERRITORY OF THE PHILIPPINE ISLANDS AND THE SOVEREIGN AT BIRTH
The U.S. Constitution recognizes only two categories of persons, a "citizen" and an "alien" and, depending upon the mode of the acquisition, distinguishes the two categories of citizens of the United States, "natural-born" (at birth) and "naturalized" (after birth). The Citizenship Clause of the Fourteenth Amendment confers a duality of citizenship under a federal system--"citizens of the United States and [citizens] of the State wherein they reside."

What is significant concerning the political status of Territorial Filipinos--regardless of the nationality (or citizenship, as the case may be), they may have been conferred with, or acquired, "after birth"--is this:

Who was the "sovereign" exercising the rights of sovereignty and jurisdiction in and over the territory of the Philippine Islands at the time they "were born"? What was their "Country of Birth"?

The use of the phrase "were born" above is deliberate, since this is same phrase employed in a crucial provision of the Tydings-McDuffie Act (to be discussed later in detail here), dispossessing Territorial Filipinos.

Insofar as the United States as the sovereign over the territory of the Philippine Islands (later Commonwealth of the Philippine Islands by 1935) is concerned, Territorial Filipinos individually acquired American nationality initially at birth. Chief Justice Earl Warren, in Barber v. Gonzalez (1954), confirms this status:

"[P]ersons born in the Philippines during this period were American nationals."

Still languishing under American sovereignty, but denied recognition as "citizens of the United States" (the central issue to be discussed later in this paper), Territorial Filipinos were designated as "citizens of the Philippine Islands" at birth under The Philippine Bill of 1902, the same duality of status in a federal system accorded, for instance, upon the citizens of the State of California who are also at the same time citizens of the United States. Although later renamed "citizens of the [Commonwealth of the] Philippines" under the1935 Constitution upon its adoption, the Philippine Islands was still under the sovereignty of the United States.

Insofar as the separate and independent Republic of the Philippines as the sovereign is concerned, which became effective only upon the withdrawal of American sovereignty on July 04, 1946, Territorial Filipinos were conferred the status of "citizens of the Philippines," specifically "citizens of the [Republic of the] Philippines," under the 1935 Constitution, after birth--or after all of them had already been born.

Thus, having been born before the withdrawal of American sovereignty in 1946 and, in fact, acquired American nationality at birth, the status of "Citizens of the [Republic of the] Philippines" that Territorial Filipinos were conferred with after birth, was simply a case of their mass or "collective naturalization" mandated under the 1935 Constitution they were now under (and subject to) and not--and this is significant to the understanding of this issue--under the Constitution or laws of the original and preceding sovereign, the United States.

What this means, of course, is that the status of "citizens of the [Republic of the] Philippines" that Territorial Filipinos were conferred with after birth, as the necessary and attendant consequence of a change of sovereign in 1946, did not in any way affect or alter what is already a documented (and certifiable) historical circumstance of their birth--the American nationality Territorial Filipinos acquired initially at birth while still under the sovereignty and jurisdiction of the United States--before the Republic of the Philippines even existed.

To put it bluntly, whatever the sovereign United States may have already done, does or intends to do is beyond the reach--and certainly none of the business--of the sovereign Republic of the Philippines, and vice versa.

Invoking, therefore, the 1935 Constitution or laws enacted by the Republic of the Philippines to justify opposition to the claim of Territorial Filipinos to U.S. "citizenship at birth" would certainly be of no moment, owing to the irrelevance of such provisions to a Right acquired under the jurisdiction of the U.S. Constitution or its laws.

Note it well that the 1935 Philippine Constitution was ratified by a vote of 1,213.046 YES as against 44,963 NO
votes or a mere 3.7% of the total votes cast during the plebiscite held on May 14, 1935. Compare this total voting figure of roughly 1.25 million to the Philippine Islands population a little over three years later of 16 million during the June 01, 1939 Census, which would indicate--even assuming only a15 million Philippine Islands population in 1934, the year the plebiscite was held--that barely 8% of the people participated to ratify or not.

In any case, following the exchange of ratifications of the 1898 Treaty of Paris, Las Islas Filipinas that the Spanish Crown ceded to the United States "came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States" (Fourteen Diamond Rings, 1901); which necessarily means, of course, that the United States became the sovereign and the "Country of Birth" of Territorial Filipinos during the entire 48 years of the American territorial period from 1898 to 1946.

Identifying "the United States" as the "sovereign" at the moment their birth occurred in the territory of the Philippine Islands validates the claim of Territorial Filipinos to "citizenship at birth," since Sec. 2218, 3C Am Jur 2nd (the respected legal encyclopedia), titled the "Doctrine of Jus Soli," declares in no uncertain terms that:

"A person is born subject to the jurisdiction of the United States, for purposes of acquiring citizenship at birth, if his or her birth occurs in territory over which the United States is sovereign, even though another country provides all governmental services within the territory, and the territory is subsequently ceded to the other country." (bold added)

What Sec. 2218 above is simply saying, of course, is that, under the Doctrine of Jus Soli, a person acquires "citizenship at birth" in, for instance, the U.S. territory of the Philippine Islands, even if the territory is determined not to have been included in the official definition of the phrase "in the United States," so long as the United States exercised the rights of sovereignty and jurisdiction over the territory and is the "sovereign" at birth.

On July 04, 1946, U.S. Pres. Harry S. Truman, by Proclamation 2695, "Philippine Independence," declared that, after 48 years: "The United States hereby withdraws and surrenders all rights of possession, supervision, jurisdiction, control, or sovereignty in and over the territory and people of the Philippines."

In the light of Sec. 2218 and Proclamation 2695 both cited above, Territorial Filipinos acquired "citizenship at birth," having been born during the 48-year American territorial period in the Philippine Islands (or the Commonwealth of the Philippine Islands by 1935)--"in territory over which the United States is sovereign."

If so, then, justice and a sense of fair play demand that the United States should have afforded Territorial Filipinos the opportunity, at the very least during the "transition" of the Philippine Islands from a U.S. territory to a separate and independent republic to expressly renounce or preserve voluntarily the citizenship they individually acquired initially at birth upon its withdrawal of sovereignty--the same opportunity afforded Spanish subjects to renounce or preserve their nationality within a year after the treaty ratification--otherwise, having been officially and judicially disowned by the very sovereign at their place of nativity, what country can they now claim to having been born in or what sovereign did they owe allegiance to at birth, or were they born stateless?

America, however, claims that there is an exception to the Doctrine of Jus Soli rule in Sec. 2218 quoted above, citing Valmonte v. I.N.S. (2nd Cir. 1998), which held (citing several Circuit Court precedent rulings) that:

"[B]irth in the Philippine Islands during the territorial period does not constitute birth in the United States and this does not give rise to United States citizenship."

So, despite the undeniable fact that the United States ruled as sovereign, the Philippine Islands was declared as NOT to fall under the definition of the phrase "in the United States"; hence, the outcast Territorial Filipinos are to be "excluded" and become the"exception" to the "citizenship at birth" rule.

D. THE INSULAR CASES AND THE DOCTRINE OF INCORPORATED TERRITORY
Perhaps, rightly so, since under the Territorial Clause and the Incorporation Doctrine (Sparrow) enunciated in the Insular Cases, "the constitution does not follow the flag," such that, unincorporated territories are to be regarded merely as "appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution”--but note it well the phrase "within the revenue clauses" only. (see Bartholomew Sparrow, The Insular Cases and the Emergence of American Empire, 2006)

Thus, Congress authorized itself to exercise "unrestricted power" over, and "the absolute and unqualified right of governing," unincorporated territories, claiming that "the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be," having been empowered under the Clause "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."

Take note that the power granted deals only with "territory" as "property belonging to the United States," being joined by the conjunction "or" to "other property"; so, does this authority include the "human persons" in the "territory"? Are "human persons" in "territory" to be regarded also as "property belonging to the United States"?

This Incorporation Doctrine announced in Downes v. Bidwell (one of the Insular Cases decided in 1901 on a split 5-4 vote) was not about the Citizenship Clause, but the Revenue Clause, with Justice John Marshall Harlan, dissenting--the Justice Harlan dissenting two years earlier in a similar race-based "Separate but Equal" Doctrine held in Plessy v. Ferguson (1896)--and referring to the Incorporation Doctrine asserted as "occult":

"I am constrained to say that this idea of 'incorporation' has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel." (bold added)

Chief Justice Melville Fuller, likewise dissenting, did not mince words and referred to the "occult" word too:

"Great stress is thrown upon the word 'incorporation,' as if possessed of some occult meaning." (bold added)

"Occult," indeed, for how can property America bought for $20 million from the Spanish Crown (Puerto Rico and Guam, in fact, were merely ceded as "spoils of war"), over which the United States reigned as the undisputed "sovereign," be regarded as excluded from the phrase in "the United States" and be "not a part of" it ?

Was it, perhaps, the horrifying fear confronting "white" America that the "savage," the "half-civilized, piratical, muck-running inhabitants of two thousand islands, seven thousand miles distant, in another hemisphere" Senator Vest warned during the treaty debate, would "ultimately become citizens of the United States"?

Relying upon the Territorial Clause and the "occult" Doctrine, Congress proceeded to treat Territorial Filipinos, not as "human persons," but merely as "other property" (the alternative to "territory" in "the territory or other property"), a "movable chattel" (like the slave-born named Dred Scott, a "monkey with no tail"), appurtenant to the insular colony of Las Islas Filipinas the Spanish Crown sold to the United States for $20 million (Puerto Rico and Guam were ceded as "spoils of war"), authorizing the ownership and possession of ten million Indios.

As regards ownership, note that a "slave" (as distinguished from the prohibited "slavery") is simply "a person owned by someone." Thus, as authorized under the Territorial Clause, Territorial Filipinos, under the Treaty of Paris, became "other property" now "owned by" the "slaveholder" and new master, the United States, bought at a price of just $2 per head!--a bargain, indeed, since the U.S. Constitution itself (Art. I, Sec. 9) even allows the imposition of a Slave Tax of "not exceeding ten Dollars for each person" for "the importation of such person."

Justice Edward White in the Insular Case of Downes v. Bidwell, in fact, emphasized that Congress’ power to “dispose of” territory under the Territorial Clause refers only to “a mere transfer of rights of property.“ Under the Court’s reading of the Territorial Clause, therefore, Territorial Filipinos are to be treated much like what Justice Robert Taney viewed the slave-born in Dred Scott v. Sandford (1857)--persons subject to be “bought and sold as an ordinary article of merchandise and traffic, whenever profit could be made by it.”

Riding on the coattails of the Insular Cases, the curse of Dred Scott was stealthily enthroned back to where it now reigns, judicially legitimizing, this time around, birthplace prejudice--a place of birth that, ironically, the United States bought, ceded, owned and, more importantly, ruled as sovereign for close to half a century.

E. UNWANTED AND EXPLOITED
Although born "in territory over which the United States is sovereign" and hence, U.S. citizens at birth; Territorial Filipinos, however, became the glaring exception to jus soli (Sec. 2218), having been rejected, abandoned and disowned by their "sovereign" under the Tydings-McDuffie Act, worded, unbelievably (for want of any other justification), in the classic subjunctive mood--"as if ... were"--grammatically, a supposition, contrary to fact:

"[C]itizens of the Philippine Islands ... shall be considered as if they were aliens ... the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty. "

As a supposition, contrary to fact, the law itself concedes that Territorial Filipinos were not, in reality, born "aliens," but were merely to be "considered as if they were"; then, logic dictates that they were, in fact, "citizens at birth." The same is true with the supposition that "the Philippine Islands shall be considered as a separate country" which is definitely "contrary to fact" in recorded history.

To America, designating Territorial Filipinos by law "as if they were aliens" was exceedingly necessary, since as early as 1904 in Gonzalez v. Williams, reiterated in Toyota v. U.S. in 1925, the Supreme Court held that

"The citizens of the Philippine Islands are not aliens. They owe no allegiance to any foreign government."

So, if Territorial Filipinos are "not aliens"; then, they belong to the only other class of persons recognized under the Citizenship Clause: "citizens of the United States"--a status "white" America feared the Court would decide to confer upon "brown" Territorial Filipinos later. Congress aborted what was inevitable, by cleverly inventing an entirely new status of "exception" and "exclusion" to discard Territorial Filipinos for good, by calling them, "non-citizen nationals of the United States" (an oxymoron to be discussed at length later here).

Thus, Territorial Filipinos under the Act were denatured into Agamben's description cited earlier of the "Homo sacer,"an "individual submitted to the “sovereign’s state of exception,"a "paradox" of an “exile,” since “the law that mandates the exclusion"--"as if they were aliens"--"is also what gives the individual an identity,” an "identity" necessary not only to separate the inferior "brown" from the superior "white" but to underline the racism that Asian "brown" is never equal to Anglo-Saxon "white." The slave-born, at least, were treated a lot better as "separate but equal" citizens, when compared to Territorial Filipinos who were not only looked down upon as "separate and unequal," but were also denied the citizenship they were entitled to acquire at birth.

In any case, this contrafactual law was enacted no doubt to deprive Territorial Filipinos of their Right to "citizenship at birth" and, not content with that, to subject them all--now to be "considered as if they were aliens"--to "exclusion or expulsion," including the humiliating detention and deportation proceedings, under U.S. immigration laws, aside from severely restricting immigration "for each fiscal year [to] a quota of fifty" only.

But the incongruity of it all becomes the more absurd (expectedly) with this mandate laid down in the same Act:

"All citizens of the Philippine Islands shall owe allegiance to the United States."

Thus, having been "considered as if they were aliens," the statutory status of Territorial Filipinos under the Tydings-McDuffie Act becomes uniquely preposterous: "Aliens owing allegiance to the United States," meaning, they are now mandated to be loyal to--to be willing to die for--a country they are barred from entering!
Only in America, of course; for only in America are pet dogs and cats to be handled more as "human persons," sheltered and welcome, than Territorial Filipinos who do not even deserve to be afforded animal-like treatment

What is intriguing is that those who drafted the Act either looked down at Territorial Filipinos as too ignorant to ever get to discern the significance of their allegiance to citizenship or were just totally unaware of what Justice Noah Haynes Swayne in U.S. v. Rhodes said in 1866, the same year Congress passed the Citizenship Clause, and subsequently cited in Wong Kim Ark, decided in1898, the same year the Treaty of Paris was signed:

“All persons born in the allegiance of the United States are natural-born citizens."

In fact, as regards the "allegiance" of Territorial Filipinos--the "native inhabitants" of the Philippine Islands--Chief Justice Melville Fuller in Fourteen Diamond Rings already held as early as 1901 that:

"Their allegiance became due to the United States, and they became entitled to its protection."

If so, since the Act merely presupposes that Territorial Filipinos are to be "considered as if they are aliens," which is contrary to fact; then, under the other provision of the Act and the two court rulings cited above, they were--in fact--"natural-born citizens," after all, having been "born in the allegiance of the United States."

Section 24 (3) of The United Nations High Commissioner on Human Rights (UNCHR) International Covenant on Civil and Political Rights declares that: “Every child has the right to acquire a nationality.” And as regards Territorial Filipinos being summarily subject to immigration laws, Sec. 12 (4) provides that "No one shall be arbitrarily deprived of the right to enter his own country"--tantamount to banishment, cruel and unusual.

Although the “entry into force” of this Human Rights Covenant was only recently; yet, the United States, a signatory, is bound to honor this Covenant in the laws it has enacted even during its imperial past, particularly this shrewdly-phrased "Mass Divestment" Clause in the Tydings-McDuffie Act, dispossessing Territorial Filipinos by remaking what is already an authenticated historical fact--the circumstances of a person's birth:

"Section 14. Upon the final and complete withdrawal of American sovereignty over the Philippine Islands the immigration laws of the United States (including all the provisions thereof relating to persons ineligible to citizenship) shall apply to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries." (bold added) (note the historical past tense "were born")

Already "considered as if they were aliens," Territorial Filipinos--"who were born in the Philippine Islands"--are now to be deemed upon "withdrawal" as if they "were born" in a "foreign" country, although this "foreign" country was still non-existent at the time they "were born"--a mere U.S. territory before the "withdrawal."

If that is confusing enough, the Divestment itself betrays a clear contradiction. For if the territory of the Philippine Islands is to be regarded "to the same extent as a foreign" country during the time Territorial Filipinos "were born," what "American sovereignty over the Philippine Islands" was there to "withdraw"?

Clearly, by designating the Philippine Islands as a "foreign" country even before the "withdrawal," Territorial Filipinos were collectively divested of their "citizenship at birth" by another wild "supposition contrary to fact," provoking a contradiction, not to mention the open falsification of history, since the Philippine Islands became "foreign" only after the "withdrawal of American sovereignty" and after they "were born."

In fact, as early as 1901, Chief Justice Melville Fuller in Fourteen Diamond Rings already opined:

"The Philippines thereby ceased, in the language of the treaty, 'to be Spanish.' Ceasing to be Spanish, they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established." (bold added)

By whatever justification, ludicrous or idiotic, the intent is clear: To deny to the millions of Territorial Filipinos upon "withdrawal of American sovereignty" in 1946, the citizenship they initially acquired at birth, having been born in the Philippine Islands, a territory over which the United States was sovereign, for citizenship at birth is acquired, to repeat Sec. 2218, "if birth occurs in territory over which the United States is sovereign."

So, whatever the cost, the despised "Homo sacer" Territorial Filipinos must be "disposed of," But, in kicking them out, the "course to be pursued," Justice Harlan in Downes v. Bidwell warned, must obey the Constitution:

“Whether a particular race will or will not assimilate with our people, and whether they can or cannot with safety to our institutions be brought within the operation of the Constitution, is a matter to be thought of when it is proposed to acquire their territory by treaty. A mistake in the acquisition of territory, although such acquisition seemed at the time to be necessary, cannot be made the ground for violating the Constitution or refusing to give full effect to its provisions. The Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis in our history may suggest the one or the other course to be pursued.” (bold added)

But, by reclassifying the "Philippines Islands to the same extent as in the case of other foreign countries" during the period Territorial Filipinos "were born," America very subtly yet effectively disclaimed sovereignty over the territory and its people from 1898 (Treaty of Paris) to 1946 (withdrawal of sovereignty)--the period they "were born," instead of from and after the moment America withdraws its sovereignty on July 04, 1946, not before.

Anchored upon this misleading, even false, disclaimer, Territorial Filipinos who "were born" in the Philippine Islands (now to be regarded a "foreign" country) would consequently be forever "considered as if they were aliens" (a contrafactual provision of law at that), subject to U.S. immigration laws, thereby depriving arbitrarily the Territorial Filipino of "the right to enter his own country" of birth without the need of securing a U.S. visa.

So, throw the unwanted Territorial Filipinos out, by designating them with any "identity" imaginable synonymous with "alien" to deny them what the Citizenship Clause already calls them--"Citizens of the United States."

Hence, denied the opportunity to renounce or preserve, and statutorily disowned and abandoned by, the Sovereign at their place of nativity (an outlying possession of the United States), Territorial Filipinos were declared by law as BORN STATELESS, without any nationality at birth--a Homo sacer!

For under the Act, their place of birth, the Philippine Islands, is declared to be a "foreign" country, RETROACTIVE, inexplicably, from the time they "were born," or between 1898-1946--a supposition clearly contrary to fact, since this is the very period in recorded history during which the Philippine Islands was still an American territory, becoming separate and "foreign" only in 1946 at the time America withdrew its sovereignty--rendering thereby the status of Territorial Filipinos to that of an ALIEN AT BIRTH (a person born in a "foreign" country), contrived to deny them the Right to assert that their birth occurred "in territory over which the United States is sovereign," in consequence of which the Act's devious intent is at once unmasked--to deny them the Right to "citizenship at birth."

Under the Act, the mandate of the Sovereign of the American Empire is clear: Territorial Filipinos are forbidden from telling the truth--compelled to falsify information, even to lie under oath--about what is undeniably a recorded historical circumstance of where they "were born," their "Country of Birth" (in the United States, not elsewhere, "foreign"), and not what they may have acquired after they "were born," with the sole racist purpose of relegating the Territorial Filipino to the Homo sacer status of a nobody, born nowhere, time forgot, subtly erasing from the pages of world history the documented forty-eight years of the American territorial period in the Philippine Islands, as if it never existed at all.

Under the Act, therefore, all that is necessary to authorize U.S. Immigration agents to harass, arrest, handcuff, detain and deport and, in the process, subject "half-civilized, piratical, muck-running" non-white persons to abuse, humiliation, ridicule and embarrassment, and to be treated as property, even as monkeys with no tails, is a law legitimized by a brazen "supposition contrary to fact" to deny the unwanted, despised brown-colored persons--Territorial Filipinos--the basic Right to have rights!

The Act opened the door to The Filipino Repatriation Act of 1935, offering Territorial Filipinos (now "aliens") in the United States free passage to the Philippine Islands, but only around 2,100 of the close to 120,000 low-paid farm workers (half in California) took advantage of the free ride home. Fully 97% of those left behind were over 30-year old bachelors, since the Anti-miscegenation laws banning interracial marriage (even sex) were still in effect and were declared unconstitutional only in 1967 by a unanimous Supreme Court in Loving v. Virginia.

The objective, of course, was to get rid of Territorial Filipinos fast! No doubt about that but these despised outcasts were in the United States merely to return the favor--or, in a word, I am here because you are there!

In fact, even after U.S. sovereignty was withdrawn, Americans and American-controlled business enterprises continued knocking uninvited, authorized under an "ordinance appended to the 1935 Constitution" to exploit and utilize "natural resources" of the public domain, operate "public utilities," engage in "all forms of business enterprises" in the Philippine Islands (or the Republic of the Philippines by 1946) and to be treated "in the same manner as to, and under the same conditions imposed upon, citizens of the Philippines" or Filipino-owned business enterprises until 1974, allowing America to "overstay" (but not as TNT) 28 years more, 76 years in all.

These so-called "Parity Rights"--with no mutual reciprocity, a glaring travesty of "parity" itself, coerced under the 1946 Bell Trade Act--were the onerous condition-precedent America imposed upon the Philippines for "War Damage" fund releases under the companion Tydings Rehabilitation Act amounting to over half a billion Dollars. Still reeling from the devastation in lives and property during WWII (a war sovereign America declared against Japan), the Philippines was left with no choice but to accede and bow to the unkind, unfair, unjust exactions.

Actually, it was not until 1992 that America finally left, following the end of the U.S. lease on the Subic Bay Naval Station. The 1947 Military Bases Agreement (MBA) granted America "the right to retain the use" of a total of 23 military bases in the Philippines for 99 years until 2045, which was amended in 1965 to terminate in 1991.

The lease was "rent free" for the use of, among others, Subic Naval Base and Clark Air Base--America's largest post-war overseas military bases worldwide, being the HQ/Hubs of the 7th Fleet and the 13th Air Force, Although the Philippines was granted a $50 Million annual "military aid" only in the early 1970s; compare this, however, to the $400 million given to Thailand and the $600 million to South Korea as well as the $1.2 billion 5-year agreement with Spain and the $1 billion 4-year agreement with Turkey during the same period. Why treat the Philippines unfairly different? (see http://www.heritage.org/Research/AsiaandthePacific/asb7.cfm)

Not only that, compare the huge benefits America enjoyed under the MBA with the pittance it wrangled under the "Compact of Free Association" America entered into with the Federated States of Micronesia, the Republics of Marshall Islands and of Palau, which merely allows "U.S. military access in the region"--"military access," to repeat, not "military bases" as in the MBA. But in exchange for this comparatively insignificant "military access" provision, America grants "Compact States citizens" the privilege to enjoy "unrestricted access to the U.S. to live, work, study and assume 'habitual residence' with no visa requirement."
(see http://www.momusa.org/docs/status.pdf)

Inexplicably, in return for the "rent-free" use of U.S. military bases in the Philippines under the MBA--and not just for "military access" as that under the "Compact"--America restricts "access" to Filipinos by requiring them to secure a U.S. visa. With grim irony, these "Compact States" were once Japanese-owned islands, where the bloodiest battles during WWII were fought. "Compact States citizens," therefore, were, technically, at war with America while Territorial Filipinos ordained their lives, their fortunes defending values, ideals both shared.

Even for this alone, America should be ashamed!

For why did America upon its surrender of sovereignty in and over the territory and people of its former colony of the Philippine Islands in 1946 withhold and deny this privilege of "unrestricted access" from Territorial Filipinos who were unquestionably more deserving to be entitled to enjoy the untold benefits such "access" offers than "Compact State citizens"--citizens in territories of a former enemy that Americans alongside Territorial Filipino patriots went to war and fought courageously against, suffered and died honorably together to vanquish?

Aware of the enormous economic problems their former colony faced during the Marcos Martial Law years, why was this opportunity "to live, work, study and assume 'habitual residence' with no visa requirement" not made available to Territorial Filipinos at the time the privilege was granted to "Compact State citizens" in 1986 while the U.S. bases were still fully functioning here and about the same time Filipinos staged "People Power"?

If America readily condoned $4.1 billion in Iraqi loans "in aid of democracy" to celebrate Saddam's fall, why did America not offer the same goodwill to its former colonials after ousting another tyrant, Marcos, by granting them instead of millions of Dollars, "unrestricted access" and the opportunity that "access" economically provides?

But all this is wishful thinking now. For just by reading the manner in which the provisions in the Tydings-McDuffie Act were so ludicrously worded, it is obvious that Congress did not care a hoot if the phraseology employed was incongruous with reason or not, since they were meant to apply only to Territorial Filipinos anyway--the "half-civilized, piratical, muck-running" "monkeys with no tails."

F. ALLEGIANCE AND BIRTHRIGHT
In fact, coinciding with the beginning of the Philippine-American War, the February 1899 issue of the popular New York magazine, McClure's, carried the poem penned by British novelist, Rudyard Kipling: “The White Man’s Burden: The United States and The Philippine Islands”--or "Kipling's Hymn to U.S. Imperialism," with this description of the inhabitant Indios: "Your new-caught, sullen peoples/Half devil and half child."

Even now, the Philippine-American War that "The White Man's Burden" was conveniently invoked to justify the "attendant cruelties" inflicted (among the more gruesome, the "water cure" now renamed "water-boarding") has already been compared by political analysts with America's armed imperialist incursions into Vietnam and Iraq.

But the single, most important point that seems to have been unknowingly (if not, deliberately) ignored, or even totally forgotten, in the incisive analogies and comparisons these respected analysts authored--including those in scholarly articles written through the years that have failed to distinguish the wall of difference separating the status of the Territorial Filipino from that of the Chinese, Japanese, Indian and Korean immigrant--is simply this:

Following the exchange of ratifications of the 1898 Treaty of Paris, the children of Indios in Las Islas Filipinas born thereafter became at birth "persons subject to the jurisdiction of the United States" (including even the Indios themselves and those residing therein) and, reciprocally, in compensation for the "protection" the new sovereign affords to those "subject to its jurisdiction," became obligated to owe allegiance thereto

In Minor v. Happersett (1874) Chief Justice Morrison R. Waite discussed the reciprocal relationship:

“Allegiance and protection are, in this connection (that is, in relation to citizenship) reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance." (bold added)

And it is this reciprocal allegiance the "Half devil and half child" Territorial Filipinos were mandated in return to owe their new sovereign, the United States (otherwise "guilty of treason"), that makes the American adventurism in the Philippine Islands altogether different, incomparably unique, from that undertaken in Vietnam and Iraq and, for that matter, from that of the political status of the Chinese, Japanese, Indian and Korean immigrant.

For allegiance is the fountainhead to birthright, which attaches initially unto the "natural-born" child "by virtue of natural law" at birth ("Birth and allegiance go together," otherwise born stateless), either (a) by right of blood (jus sanguinis) or (b) by right of soil (jus soli), which explains the reason why "natural-born" is best defined as the status a child "by virtue of natural law" acquires "at birth" by "right of blood" or "right of soil" as birthright.

Allegiance (or "loyalty owed" to the sovereign, say, the United States) is the unifier, the equalizer, of the "natural-born" and the "naturalized" that distinguishes them from an "alien" owing allegiance to a foreign power.

In fact, the concept behind why allegiance in return for "protection" is "the tie, or ligamen" (Blackstone), or "is nothing more than the "duty of obedience" (Justice Storey), that binds the subject to the King under the common law jus soli birthright rule was clearly intended to bolster the royal claim of the "Divine Right of Kings" (likewise justified as instituted by "the divine law of nature") and thereby legitimize compulsion of obedience and punishment for disloyalty among the King's subjects "within the realm and within the allegiance."

For “the test of loyalty is conduct rather than intensity of feeling”; hence, allegiance owed to the sovereign in return for the protection afforded is redeemed by the willing obedience of the subjects.to its laws.

It was Lord Coke in Calvin's Case or the Case of the Postnati (1608), as cited in U.S. v. Wong Kim Ark (1898), who first articulated the significance of allegiance to the common-law birthright rule:

"It is neither the climate nor the soil but allegiance and obedience that make the subject born."

“Calvin was a postnatus of Scotland, i.e., one born after the union of the crowns of Scotland and England in James I of England." And it was held that "the postnati being born in the allegiance of the King were not aliens and might inherit land in England."

As proclaimed in Calvin's Case, the better approach to resolve what the author of the Clause, Senator Jacob Merritt Howard, referred to during his sponsorship speech as "the great question of citizenship" is to view the role of allegiance, separately, as the more significant criterion to citizenship, rather than rely on the territorial aspect of the Right of Soil or jus soli alone; for, to Lord Coke, the determinant "that makes the subject born"--or to the acquisition of citizenship at birth--is "neither the climate nor the soil but obedience and allegiance."

Thus, rather than continue to harp on the claim that the Philippine Islands is included in the definition of the phrase "in the United States," a definition only Congress is authorized to determine, this paper will focus instead solely upon that criterion of paramount significance to birthright citizenship--the ALLEGIANCE Territorial Filipinos were obliged (nay, compelled) to owe the United States at birth, reciprocally, in compensation for the sovereign "protection" extended to "persons born subject to the jurisdiction thereof," persons the Citizenship Clause in Sec. 1 of the Fourteenth Amendment recognizes as citizens of the United States and, "by virtue of natural law," "natural-born."

In fact, allegiance is the very same determinant behind why the term "sovereign" stands out as the keyword in the phrase "if his or her birth occurs in territory over which the United States is sovereign" of Sec. 2218 earlier cited "for purposes of acquiring citizenship at birth." For it is the "protection" afforded at birth (or after birth for the "naturalized") by the "sovereign," the United States, to "persons subject to the jurisdiction thereof" that imposes the reciprocal duty and obligation upon them--now recognized as citizens of the United States--to owe allegiance to their "sovereign," pledging obedience to its laws and commands, in compensation.

However, by cleverly concocting a novel legal status to describe the Territorial Filipino, aimed at sidetracking a constitutional (and judicial) command upon the status of persons "owing allegiance" (shrewdly intended to leave the discarded burdened with the hassle and prohibitive legal cost of challenging its constitutionality later), Congress fashioned a "term of art"--"non-citizen national"--defined under the 1940 Nationality Act as:

"[A] person who, though not a citizen of the United States, owes permanent allegiance to the United States." (bold added)

This "convenient construct" (Cabranes) is clearly an oxymoron that Congress, now claiming to possess absolute power over its "other property"--the Territorial Filipino "slave," renamed "non-citizen national" by, and ordered to owe "permanent allegiance" to, its Master and supreme Ruler--could revoke (or "divest") unilaterally at will (or be "taken away without consent") by law, what the "law of nature," on the contrary, being "born in the allegiance," had already anointed at birth, thereby belittling and making a mockery of the allegiance pledged by patriots sworn to willingly sacrifice their lives, their fortunes when Called to Arms to honor and redeem it.

It is this allegiance that Territorial Filipinos, bearing proudly the Stars and Stripes, validated and ennobled in blood and tears, defending American territory in gory battlefields of Bata-an, Corregidor, the Death March and the Guerrilla War of Resistance that ensued--a war the very sovereign that trivialized their allegiance declared.

Explain this patriotism displayed by whatever tag convenient, "utang na Loob," even "palabra de honor"; but In Time of War what matters to patriots is--to stand tall and redeem the allegiance they owe to their sovereign.

Here is how a Japanese scholar, Nakano Satoshi, described the "loyalty" of Territorial Filipinos during WWII based on newly discovered primary Japanese-language historical sources earlier unavailable to researchers:

“From the very beginning of their invasion of the Philippines, the Japanese were seen as the ‘enemy’ with more intensity and stubbornness than in any other country they occupied in Southeast Asia [for it was to their] sovereign, the United States, that anti-Japanese resistance guerrillas throughout the country pledged their loyalty.” (“Appeasement and Coercion”: The Philippines Under Japan, 1999) (bold added)

Under President Franklin Roosevelt's Military Order of July 26, 1941, Territorial Filipino soldiers were ordered into the service of the Armed Forces of the United States; however, as provided under the First Supplemental Surplus Appropriation Rescission Act of February 18, 1946, the military service covered by the President's order did not entitle Territorial Filipino veterans to the rights, privileges, or benefits afforded veterans who served in the active military, naval, or air service. For “so long as,” using the words in Harris v. Rosario (1980), “the restriction rests upon a rational base,” these WWII veterans could be discriminated against rationally too.

But whatever, "rational" or "irrational," what is more significant is the history that transpired earlier: As the year 1941 was about to close, America declares war with Japan and barely two weeks later, 28th December, the President of the United States issued this "Message to the Filipino People," as war raged all over the Land:

“In this great struggle of the Pacific, the loyal Americans of the Philippine Islands are called upon to play a crucial role ... It is not for me or for the people of this country to tell you where your duty lies. We are engaged in a great and common cause. I count on every Philippine man, woman, and child to do their duty. We will do ours.” (bold added)

Territorial Filipinos--"the loyal Americans of the Philippine Islands"--heeded that CALL TO DUTY the President of the United States, Franklin D. Roosevelt, ordered "every Philippine man, woman, and child" to perform and thereafter waged a relentless Guerrilla War of Resistance, unparalleled in the annals of unconventional warfare.

But what needs to be repeatedly emphasized is the comic irony that Territorial Filipinos did not ask to be placed "subject to the jurisdiction of the United States," nor beg to owe allegiance thereto. On the contrary, Territorial Filipinos openly resisted America's cession and its unwelcome, brutal occupation to compel their allegiance--the same allegiance that attaches initially at birth (even if reluctantly owed) to create the citizen.

In this regard, although Art. IX of the 1898 Treaty of Paris expressly stipulated that:

"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress." (bold added)

However, in Fourteen Diamond Rings decided in 1901, the first case the U.S. Supreme Court handed down concerning the "native inhabitants" of the Philippine Islands, Chief Justice Melville Fuller opined:

"... although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection." (bold added)

Thus, owing to this "allegiance" due, U.S. “passports are now issued to citizens of Porto Rico and of the Philippines” as authorized under the Act of June 14, 1902, providing that "no passports shall be granted … to … any other than those owing allegiance, whether citizens or not, to the United States.” (see Willoughby, 1910)

More significant, the constitutional Right to "citizenship at birth" the Citizenship Clause guarantees attaches the moment birth occurs to persons born in in the "allegiance" of the United States, reciprocally, in return for the "protection" afforded, and no Treaty or law may annul or supersede what the Constitution absolutely commands.

Territorial Filipinos, no doubt, were "born in the allegiance of the United States," but the reality is that the "degrading treatment"--"an interference with their human dignity"--America subjected them to with impunity were all justified solely because "brown" is the inferior color of their race, altogether incompatible with that of the superior Anglo-Saxon "white."

In hindsight, America should have simply left Territorial Filipinos to weave their own destiny alone; but "The Lust for Empire"--the title of the speech Senator George Hoar delivered in opposition to the ratification of the Treaty of Paris--beckoned irresistibly. The Anti-Imperialist League, in fact, warned the Senate of the grave consequences of ratifying the Treaty of Paris and of assuming "The White Man's Burden," which would result in--what was passionately debated then--the conferment of U.S. citizenship upon the "Half devil and half child" Territorial Filipinos in compensation for owing allegiance to the United States at birth.

For birth "in the allegiance" is what Justice Noah Haynes Swayne in U.S. v. Rhodes reiterated during the same year Congress approved the Citizenship Clause in 1866 as the very definition of "natural-born" itself:

“All persons born in the allegiance of the United States are natural-born citizens."

During the Citizenship Clause debate on May 30, 1866, Senator Lyman Trumbull, Judiciary Committee Chair and co-sponsor of the Fourteenth Amendment, defines the phrase “subject to the jurisdiction thereof":

"Mr. TRUMBULL … What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means ... "

This paper will argue that the Citizenship Clause Senator Jacob Merritt Howard authored--correctly read grammatically as intended by the pair of commas he purposely enclosed the non-restrictive phrase "and subject to the jurisdiction thereof" with, particularly the crucial first comma he inserted before the conjunction "and"--confers a still-unrecognized category of citizens of the United States upon "every other class of persons" owing reciprocal ALLEGIANCE, other than those "born in the United States," in return for the sovereign protection extended to "persons subject to the jurisdiction thereof," to remove "all doubt as to what persons are or are not citizens of the United States," echoing what Justice Swayne proclaimed, as cited above, rightly that: It is, after all, no other but the ALLEGIANCE owed to the sovereign that defines the citizen, the Natural-born and the Naturalized.

For, as wisely worded under the Second category of the Citizenship Clause, what matters is not about whether the land is called a "territory" or a "colony" inhabited by the King's loyal subjects, not even whether the land is "incorporated" or "unincorporated"; for what determines the conferment of U.S. citizenship under the Second category is not "where" but "when"--from and after the moment a person becomes "subject to the jurisdiction of the United States" at birth or after birth and, obligated reciprocally in compensation for the protection extended, to owe ALLEGIANCE to the United States.

Thus, although already officially and judicially declared as ineligible to belong to the First category, "born in the United States," this paper will argue, nonetheless, that Territorial Filipinos became qualified to claim the Right to be counted as among persons "subject to the jurisdiction thereof" at birth or after birth--the still-unrecognized Second category of citizens of the United States the Citizenship Clause was intended to confer,

In fact, as early as 1907, Justice Harlan in Grafton v. U.S. already held that "the jurisdiction and authority of the United States" over Territorial Filipinos "for all legitimate purposes of government, is paramount":

"The government of a state does not derive its powers from the United States, while the government of the Philippines owes its existence wholly to the United States, and its judicial tribunals exert all their powers by authority of the United States. The jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount."

After a long, careful review, the authors are fully convinced of the weight of their findings, mindful that:

“Discovery consists in seeing what everyone else has seen and thinking what no one else has thought.”--Albert Szent Gyorgy, 1937 Nobel Prize for Medicine.

And the authors are aware as well that the vindication of this Right will go a long way towards rectifying, finally, the injustice, the inequity--and the inhumanity--that has become the sad birthright of the Filipino from decades of greedy exploitation by their so-called religious or benevolent colonizers, for in the words of Justice Hugo Black:

“The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”--Afroyim v. Rusk (1967) (bold added)

Grammatically reading the Citizenship Clause as the author intended it to convey, and not as it is mistakenly viewed now, A MONUMENTAL READING ERROR, may well be the first step towards the realization of that endeavor--to vindicate a Fundamental Right to U.S. citizenship America denied! Other Filipinos, the heirs of Territorial Filipinos, the authors are certain, will follow the road few have trodden, to add, refine and insist!
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