Sign in or 
Share this
NOTES
---------------------------------------------------------------------
NOTE A: ON THE CONSISTENCY OF THE LANGUAGE USED IN BOTH POST CIVIL-WAR AMENDMENTS, 13TH AND 14TH
With the Citizenship Clause grammatically read, the two post-Civil War Amendments, 13th (1865) and 14th (1868), can now be viewed to convey consistency, oneness of intent--Equal Protection in TWO areas of concern in relation to the person--“the sanctity of the person”: (1) "in the United States"; and (2) "subject to the jurisdiction of the United States.”
THIRTEENTH: The abolition of Slavery or involuntary servitude inflicted upon persons:
(1) "within the United States"; or
(2) "any place subject to their jurisdiction."
FOURTEENTH: The benefits, privileges and immunities U.S. Citizenship confers upon persons:
(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof"
Thus, had the Clause been grammatically read as intended, Justice Henry Brown in Downes v. Bidwell (one of the Insular Cases) would not have been justified in arguing that:
On the contrary, the Clause Senator Howard and the 39th Congress crafted imposes no “limitation” at all, 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” born or residing, “everywhere” (Senator Trumbull) who--in the phraseology of the Thirteenth--are “subject to their jurisdiction.”
NOTE B: ON THE APPLICATION OF JUS SANGUINIS
The legal principle of Jus soli bases “citizenship on place of birth” while Jus sanguinis on the “nationality of one's parents.” (Black's Law Dictionary 775, 5th ed. 1979)
Laudably, the Second category--insofar as the children of U.S. citizens “born abroad” not “in the United States” are concerned--may be viewed in a way as having constitutionally justified the jus sanguinis feature of pre-Fourteenth Amendment laws conferring citizenship status upon children of U.S. citizens “born abroad” under the series of naturalization acts.
This jus sanguinis feature of the Second category is what Chief Justice William Howard Taft also mentioned in Weedin v. Chin Bow (1927), regarding Chief Justice Fuller’s remarks in Wong Kim Ark:
In William Blackstone, Commentaries (1765), the jus sanguinis aspect in English Common Law was also recognized:
Thus, recognizing the application of jus sanguinis in the Second category to children of U.S. citizens “born abroad” is still consistent with Senator Howard’s declaration that his draft “will include every other class of persons” and “removes all doubt as to what persons are or are not citizens.”
NOTE C: ON THE TERRITORIAL CLAUSE
Territorial Clause:
Clearly, the power granted under the Territorial Clause is delimited only to "the Territory or other Property belonging to the United States," with "Territory"--being joined by the conjunction "or"--merely one kind of a specified "Property," among several unnamed “other Property.”
Is this the general, albeit implied, power over "Territory” or "other Property"--Congress strained taut as mandate—to encroach upon the Sanctity of Persons born in or inhabiting such territory and to arbitrarily "dispose of" them as if these persons were one kind of "Property," like the "Property" named "Dred Scott"?
In Dred Scott v. Sandford (1857), Justice Roger Taney declared that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."
In fact, Justice Edward White in Downes v. Bidwell said that Congress’ power to “dispose of” territory under the Territory Clause refers only to “a mere transfer of rights of property. “
In short, under the Insular Cases, inhabitants and those born in ceded territories are to be treated, not as persons, but as disposable, movable “Property,” for they had “no rights which the white man was bound to respect,” alluding to the manner in which blacks were being treated under Dred Scott.
Justice Brown in Downes added:
Congress is concededly empowered under the 1787-framed Territorial Clause to "dispose of and make all needful Rules and Regulations respecting the Territory ... belonging to the United States."
By 1868, however, upon the ratification of the Fourteenth Amendment and in view of the Citizenship Clause in Section 1 thereof (grammatically read), the rules were modified. For even granting such “rules” could be implied in the first place, Congress is now clipped off its power to even imagine that it can still “dispose of” “all persons subject to the jurisdiction of the United States” in “territory … belonging to the United States,” for they are persons the Citizenship Clause in Section 1 of the Fourteenth Amendment now shields with the constitutional armor of inviolability and declared to be "citizens of the United States.”
NOTE D: ON CALVIN'S CASE
As already cited earlier here, “Calvin's Case addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered ‘subjects’ in England.”
The post nati were persons born in Scotland following the descent of the English crown to King James, and, under Calvin's Case, these children were considered “subjects” in England at birth. The parents of these children, or those already “born” and residing in Scotland prior to the descent of the English Crown to King James VI, were the antenati, and it was ruled in Calvin’s Case that the antenati were not to be regarded as “subjects” in England.
Apparently, the same question of the antenati and post nati status of Scottish subjects that hounded Calvin’s Case was readily resolved by Senator Howard’s inclusion of a Second category, for under this category of the Clause, both the post nati and the antenati acquire citizenship of the United States, and in the words of Justice Harlan in Elk, “from and after the moment they become subject to the complete jurisdiction of the United States” at birth or after birth.
NOTE E: ON THE POWER TO NATURALIZE
Chief Justice Fuller, dissenting in Wong Kim Ark cited earlier here, stressedthat:
Thus, to Chief Justice Fuller, the authority embodied in the original Constitution was modified by the inclusion of the words “or naturalized in the United States” in the Citizenship Clause, restricting its application only to persons (specifically to “aliens”) “in the United States”--and nowhere else--at the time of their application for naturalization,
Justice Black, with whom Justice Douglas and Justice Marshall join, dissenting in Rogers v. Bellei (1971) similarly argues:
So, owing to the conjunction “or,” defined as “introducing the second of two alternatives,” in the phrase “born or
naturalized in the United States,” which joins together the word “born” and the alternative, “naturalized” with the phrase “in the United States” as the determinant for both alternatives, the insertion of the words “or naturalized” may be regarded as having restricted or delimited the power of naturalization only to persons already “in the United States” and not to persons anywhere else--consistent with the reading that only those “born in the United States” are citizens of the United States, however the phrase “in the United States” may be defined by law to mean.
Thus, if a person is deemed not to qualify as a “citizen of the United States” for having been “born” in a place designated as outside of, and not in, “the United States”; that same person who remains in that place so designated as outside of obviously does not also qualify to be “naturalized,” since to be “naturalized” is the “second of two alternatives” of the status conferred by the same determinant “in the United States” and joined to the first alternative “born” by the conjunction “or” which the person is already deemed ineligible to be conferred with under.
Strangely enough, this consistency has not been made to apply in the particular case of the inhabitants of the U.S. territories of the Commonwealth of Puerto Rico and of Guam.
For insofar as the phrase “born … in the United States” is concerned, Puerto Ricans and Guamanians are deemed not qualified to be “citizens of the United States” having been “born” in a place designated as outside of, and not in, “the United States,” being merely “unincorporated” territories; however, as regards the alternative, “naturalized in the United States”--joined by the conjunction “or”-- Puerto Rico and Guam are considered, this time around, to be a place already “in the United States.”
Hence, the inhabitants of both territories are deemed qualified to be “naturalized (although are not qualified to be “born”) in the United States--under what the U.S. Congress refers to as “collective naturalization”--and become statutory, but not Fourteenth Amendment, “citizens of the United States.”
What this means is that: For purposes only of determining “place of birth,” Puerto Rico and Guam are deemed outside of, and not in “the United States”; but for purposes of “naturalization,” they are now suddenly found lying squarely “in the United States.”
Do you not find the logic of this selective application of a constitutional provision somewhat bizarre, even comical ... not to mention racist?
NOTE F. ON THE POWER TO NATURALIZE EVEN "AT BIRTH"
The U.S. Code defines the term “naturalization” to mean “the conferring of nationality of a state upon a person after birth, by any means whatsoever.”
Note it well the limiting keywords “after birth.” Thus, “Collective Naturalization” should cover only those already “born,” say the inhabitants of (or those already “born” in) a newly-ceded territory upon annexation, but definitely the power to naturalize can not include the naturalization of persons at birth, or of those yet to be “born.”
One question, it seems, is enough to underline the incongruity of the power exercised: Even assuming that persons are “in the United States” for purposes of “naturalization,” can the U.S. Congress confer “Collective Naturalization” upon Puerto Ricans and Guamanians “at birth,” when “naturalization” is applicable only “after birth”?
The answer is, unbelievably, Yes! For under the Immigration and Nationality Act (INA), as codified in the United States Code (U.S.C.), the U.S. Congress, indeed, can:
Sec. 302 (8 U.S.C. 1402) declares:
To that, add Sec. 307 INA (8 U.S.C. 1407):
So, does the Territorial Clause, notwithstanding the Citizenship Clause in Sec. 1 of the Fourteenth ratified in 1868, empower Congress to naturalize persons in ceded territories even at birth?
---------------------------------------------------------------------
NOTE A: ON THE CONSISTENCY OF THE LANGUAGE USED IN BOTH POST CIVIL-WAR AMENDMENTS, 13TH AND 14TH
With the Citizenship Clause grammatically read, the two post-Civil War Amendments, 13th (1865) and 14th (1868), can now be viewed to convey consistency, oneness of intent--Equal Protection in TWO areas of concern in relation to the person--“the sanctity of the person”: (1) "in the United States"; and (2) "subject to the jurisdiction of the United States.”
THIRTEENTH: The abolition of Slavery or involuntary servitude inflicted upon persons:
(1) "within the United States"; or
(2) "any place subject to their jurisdiction."
FOURTEENTH: The benefits, privileges and immunities U.S. Citizenship confers upon persons:
(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof"
Thus, had the Clause been grammatically read as intended, Justice Henry Brown in Downes v. Bidwell (one of the Insular Cases) would not have been justified in arguing that:
“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, the Clause Senator Howard and the 39th Congress crafted imposes no “limitation” at all, 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” born or residing, “everywhere” (Senator Trumbull) who--in the phraseology of the Thirteenth--are “subject to their jurisdiction.”
NOTE B: ON THE APPLICATION OF JUS SANGUINIS
The legal principle of Jus soli bases “citizenship on place of birth” while Jus sanguinis on the “nationality of one's parents.” (Black's Law Dictionary 775, 5th ed. 1979)
Laudably, the Second category--insofar as the children of U.S. citizens “born abroad” not “in the United States” are concerned--may be viewed in a way as having constitutionally justified the jus sanguinis feature of pre-Fourteenth Amendment laws conferring citizenship status upon children of U.S. citizens “born abroad” under the series of naturalization acts.
This jus sanguinis feature of the Second category is what Chief Justice William Howard Taft also mentioned in Weedin v. Chin Bow (1927), regarding Chief Justice Fuller’s remarks in Wong Kim Ark:
“The attitude of Chief Justice Fuller and Mr. Justice Harlan [in Wong Kim Ark] was that at common law the children of our citizens born abroad were always natural-born citizens from the standpoint of this government, and that to that extent the jus sanguinis obtained here.”
In William Blackstone, Commentaries (1765), the jus sanguinis aspect in English Common Law was also recognized:
“To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”
Thus, recognizing the application of jus sanguinis in the Second category to children of U.S. citizens “born abroad” is still consistent with Senator Howard’s declaration that his draft “will include every other class of persons” and “removes all doubt as to what persons are or are not citizens.”
NOTE C: ON THE TERRITORIAL CLAUSE
Territorial Clause:
"Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
Clearly, the power granted under the Territorial Clause is delimited only to "the Territory or other Property belonging to the United States," with "Territory"--being joined by the conjunction "or"--merely one kind of a specified "Property," among several unnamed “other Property.”
Is this the general, albeit implied, power over "Territory” or "other Property"--Congress strained taut as mandate—to encroach upon the Sanctity of Persons born in or inhabiting such territory and to arbitrarily "dispose of" them as if these persons were one kind of "Property," like the "Property" named "Dred Scott"?
In Dred Scott v. Sandford (1857), Justice Roger Taney declared that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."
In fact, Justice Edward White in Downes v. Bidwell said that Congress’ power to “dispose of” territory under the Territory Clause refers only to “a mere transfer of rights of property. “
In short, under the Insular Cases, inhabitants and those born in ceded territories are to be treated, not as persons, but as disposable, movable “Property,” for they had “no rights which the white man was bound to respect,” alluding to the manner in which blacks were being treated under Dred Scott.
Justice Brown in Downes added:
“It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people” and that “If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.”He concluded:
“… the power to acquire territories 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 in what Chief Justice Marshall termed the ‘American Empire'.”
Congress is concededly empowered under the 1787-framed Territorial Clause to "dispose of and make all needful Rules and Regulations respecting the Territory ... belonging to the United States."
By 1868, however, upon the ratification of the Fourteenth Amendment and in view of the Citizenship Clause in Section 1 thereof (grammatically read), the rules were modified. For even granting such “rules” could be implied in the first place, Congress is now clipped off its power to even imagine that it can still “dispose of” “all persons subject to the jurisdiction of the United States” in “territory … belonging to the United States,” for they are persons the Citizenship Clause in Section 1 of the Fourteenth Amendment now shields with the constitutional armor of inviolability and declared to be "citizens of the United States.”
NOTE D: ON CALVIN'S CASE
As already cited earlier here, “Calvin's Case addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered ‘subjects’ in England.”
The post nati were persons born in Scotland following the descent of the English crown to King James, and, under Calvin's Case, these children were considered “subjects” in England at birth. The parents of these children, or those already “born” and residing in Scotland prior to the descent of the English Crown to King James VI, were the antenati, and it was ruled in Calvin’s Case that the antenati were not to be regarded as “subjects” in England.
Apparently, the same question of the antenati and post nati status of Scottish subjects that hounded Calvin’s Case was readily resolved by Senator Howard’s inclusion of a Second category, for under this category of the Clause, both the post nati and the antenati acquire citizenship of the United States, and in the words of Justice Harlan in Elk, “from and after the moment they become subject to the complete jurisdiction of the United States” at birth or after birth.
NOTE E: ON THE POWER TO NATURALIZE
Chief Justice Fuller, dissenting in Wong Kim Ark cited earlier here, stressedthat:
"... those born [abroad of American parents] are not citizens at all unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized 'in the United States.’” (bold added)
Thus, to Chief Justice Fuller, the authority embodied in the original Constitution was modified by the inclusion of the words “or naturalized in the United States” in the Citizenship Clause, restricting its application only to persons (specifically to “aliens”) “in the United States”--and nowhere else--at the time of their application for naturalization,
Justice Black, with whom Justice Douglas and Justice Marshall join, dissenting in Rogers v. Bellei (1971) similarly argues:
“The majority opinion appears at times to rely on the argument that Bellei, while he concededly might have been a naturalized citizen, was not naturalized "in the United States." This interpretation obviously imposes a limitation on the scope of the Citizenship Clause which is inconsistent with the conclusion expressed above that the Fourteenth Amendment provides a comprehensive definition of American citizenship, for the majority's view would exclude from the protection of that Clause all those who acquired American citizenship while abroad.” (bold added)
So, owing to the conjunction “or,” defined as “introducing the second of two alternatives,” in the phrase “born or
naturalized in the United States,” which joins together the word “born” and the alternative, “naturalized” with the phrase “in the United States” as the determinant for both alternatives, the insertion of the words “or naturalized” may be regarded as having restricted or delimited the power of naturalization only to persons already “in the United States” and not to persons anywhere else--consistent with the reading that only those “born in the United States” are citizens of the United States, however the phrase “in the United States” may be defined by law to mean.
Thus, if a person is deemed not to qualify as a “citizen of the United States” for having been “born” in a place designated as outside of, and not in, “the United States”; that same person who remains in that place so designated as outside of obviously does not also qualify to be “naturalized,” since to be “naturalized” is the “second of two alternatives” of the status conferred by the same determinant “in the United States” and joined to the first alternative “born” by the conjunction “or” which the person is already deemed ineligible to be conferred with under.
Strangely enough, this consistency has not been made to apply in the particular case of the inhabitants of the U.S. territories of the Commonwealth of Puerto Rico and of Guam.
For insofar as the phrase “born … in the United States” is concerned, Puerto Ricans and Guamanians are deemed not qualified to be “citizens of the United States” having been “born” in a place designated as outside of, and not in, “the United States,” being merely “unincorporated” territories; however, as regards the alternative, “naturalized in the United States”--joined by the conjunction “or”-- Puerto Rico and Guam are considered, this time around, to be a place already “in the United States.”
Hence, the inhabitants of both territories are deemed qualified to be “naturalized (although are not qualified to be “born”) in the United States--under what the U.S. Congress refers to as “collective naturalization”--and become statutory, but not Fourteenth Amendment, “citizens of the United States.”
What this means is that: For purposes only of determining “place of birth,” Puerto Rico and Guam are deemed outside of, and not in “the United States”; but for purposes of “naturalization,” they are now suddenly found lying squarely “in the United States.”
Do you not find the logic of this selective application of a constitutional provision somewhat bizarre, even comical ... not to mention racist?
NOTE F. ON THE POWER TO NATURALIZE EVEN "AT BIRTH"
The U.S. Code defines the term “naturalization” to mean “the conferring of nationality of a state upon a person after birth, by any means whatsoever.”
Note it well the limiting keywords “after birth.” Thus, “Collective Naturalization” should cover only those already “born,” say the inhabitants of (or those already “born” in) a newly-ceded territory upon annexation, but definitely the power to naturalize can not include the naturalization of persons at birth, or of those yet to be “born.”
One question, it seems, is enough to underline the incongruity of the power exercised: Even assuming that persons are “in the United States” for purposes of “naturalization,” can the U.S. Congress confer “Collective Naturalization” upon Puerto Ricans and Guamanians “at birth,” when “naturalization” is applicable only “after birth”?
The answer is, unbelievably, Yes! For under the Immigration and Nationality Act (INA), as codified in the United States Code (U.S.C.), the U.S. Congress, indeed, can:
Sec. 302 (8 U.S.C. 1402) declares:
"All persons born in Puerto Rico on or after April11, 1899 ... subject to the jurisdiction of the United States ... are hereby declared to be citizens of the United States."
To that, add Sec. 307 INA (8 U.S.C. 1407):
"(b) All persons born in the island of Guam on or after April 11, 1899 (whether before or after August 1, 1950) subject to the jurisdiction of the United States are hereby declared to be citizens of the United States."
So, does the Territorial Clause, notwithstanding the Citizenship Clause in Sec. 1 of the Fourteenth ratified in 1868, empower Congress to naturalize persons in ceded territories even at birth?
---------------------------------------------------------------------
|
territorialfilipino |
Latest page update: made by territorialfilipino
, Oct 27 2008, 8:11 AM EDT
(about this update
About This Update
Edited by territorialfilipino
1 word added 2 words deleted view changes - complete history) |
|
Keyword tags:
None
More Info: links to this page
|
There are no threads for this page.
Be the first to start a new thread.
