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PART TWO: PERSONS SUBJECT TO THE JURISDICTION ARE PERSONS OWING ALLEGIANCE
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A. INTRODUCTION
During the same year Congress debated and approved the Citizenship Clause in 1866, Justice Noah Haynes Swayne in U.S. v. Rhodes declared that:
And in Minor v. Happersett (1874) Chief Justice Morrison R. Waite held that:
This paper argues that allegiance in compensation for protection is the sole determinant to citizenship and the unifier of the two distinct class of citizens--the "natural-born" and the "naturalized"--which marks them off from an "alien" subject to a foreign power.
Allegiance, in fact, becomes the equalizer, for the obligation of allegiance that naturally attaches to the child at birth and creates the 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 after birth is mandated to pledge to be admitted as a "naturalized citizen."
This paper contends that, under the Citizenship Clause of the Fourteenth Amendment--grammatically read as intended, particularly the significance of the pair of commas the author, Senator Jacob Merritt Howard, deliberately enclosed the phrase "and subject to the jurisdiction thereof" with and its reciprocal relation to allegiance--children of U.S. citizens born abroad as well as persons born in ceded territories over which the United States exercises the rights of sovereignty and jurisdiction are "natural-born" citizens of the United States.
An entirely different reading of the Clause to be presented here asserts that the Clause, grammatically read as punctuated, consists instead of a compound subject joined together by the coordinator "and."
Thus, the phrase enclosed between a pair of commas, "and subject to the jurisdiction thereof--now mistakenly viewed judicially under U.S. v. Wong Kim Ark as a "qualifying phrase" of the element preceding it, "All persons born or naturalized in the United States"--is actually the second subject of a compound structure, worded as the elliptical for the complete construction "and [all persons] subject to the jurisdiction of the United States," defining a still-unrecognized category of citizens of the United States.
This long-overlooked reading harmonizes with Senator Howard's intent he underscored during his sponsorship speech that the draft he fashioned provides an all-encompassing, comprehensive definition of citizenship :
So, other than the slave-born who now falls squarely under the category of "All persons born," the question is:
Who belonged to this category of "every other class of persons" already recognized "by virtue of natural law and national law" at that time in1866 to be citizens of the United States that the author himself declared his draft "will include" in order to settle, once and for all, "the great question of citizenship" and remove "all doubt as to what persons are or are not citizens of the United States"?
In short, how should the Citizenship Clause be read correctly as intended to "include every other class of persons" already entitled to U.S. citizenship that the author, Senator Howard, certainly, must have phrased his draft to grammatically convey, if only to justify his contention, bold and sweeping as it is, that the draft he proposed "settles the great question of citizenship" and "removes all doubt as to what persons are or are not citizens of the United States"?
B. ALLEGIANCE OF THE NATURAL-BORN UNDER NATURAL LAW
Allegiance is the fountainhead to U.S. citizenship. Consider--
--Lord Coke, Calvin’s Case or the Case of the Postnati (1608):“And it is to be observed, that it is nec cœlum, nec solum, neither the soil, but ligeantia and obedientia that make the subject born." ("it is neither the climate nor the soil … but allegiance and obedience that make the subject born.")
--Sir William Blackstone, Commentaries on the Laws of England (1765): “ Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.” (http://www.geocities.com/b_rookard/blackstone_allegiance.html)
--Justice Noah Haynes Swayne, U.S. v. Rhodes (1866 or during the same year Congress enacted the Citizenship Clause in Sec. 1 of the Fourteenth), cited in U.S. v. Wong Kim Ark: “All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England.”
--Justice Horace Gray, U.S. v. Wong Kim Ark (1898): “ 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 ... 'To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government'" ... '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.' '
--Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case, 9 Yale J.L. & Human, (1997):“In the view of Sir Edward Coke, one of the judges deciding Calvin's Case, the court's determination was required by the divine law of nature, which was "indeed … the eternal law of the Creator" and "part of the law of England … Calvin’s Case, as this Article will relate, was shaped by the prevalent political theories at that time, including the belief in the authority of divine law … This Article focuses more narrowly upon the rule of status acquisition articulated in Calvin’s Case because the significance of natural law in the articulation of this rule has not been emphasized in the history of birthright citizenship.”(http://www.uniset.ca/naty/maternity/9YJLH73.htm)
Natural Law and the natural-born. Under “natural law” (that Lord Coke equated with “the divine law of nature” or “the eternal law of the Creator”), “birth within the dominions” or “birth within the allegiance” confers the status of “natural-born.” This “belief in the authority of divine law”--became the basis for “the fundamental principle of the common law” on birthright in England and the United States.
Lord Coke’s reliance on “natural law,” or “the divine law of nature,” in determining the status of "natural-born" in Calvin’s Case is, of course, consistent with the convenient justification to the claim of the “Divine Right of Kings” during that historical period (1598), which was “aimed at instilling obedience by explaining why all social ranks were religiously and morally obliged to obey their government” for “kings were answerable only to God and it was therefore sinful for their subjects to resist them.” (http://history.wisc.edu/sommerville/367/367-04.htm)
Native-born and natural-born. The native-born are, of course, persons born "within the dominions" who are also born "within the allegiance." Hence, under Lord Coke's concept of natural law, the native-born are also "natural-born."
Wong Kim Ark cites Chancellor Kent in his Commentaries, titled: "Aliens and Natives"--
Natural law and the Citizenship Clause. In his sponsorship speech, Senator Jacob Merritt Howard, author of the Clause, refers to the citizenship his draft recognizes and confers as “simply declaratory of what I regard as the law of the land already … by virtue of natural law”:
Allegiance and the Citizenship Clause. Senator Lyman Trumbull, Judiciary Committee Chair and author of the 1866 Civil Rights Act, defines the phrase “subject to the jurisdiction thereof”:
Reciprocal obligation. Allegiance is, therefore, also the keyword in the Citizenship Clause. Chief Justice Morrison R. Waite in Minor v. Happersett (1874) held in this regard that:
Thus, since “allegiance and protection were mutual” (Wong Kim Ark), what Senator Trumbull is actually conveying in his definition of the phrase is that “owing allegiance” is simply the reciprocal obligation "by virtue of natural law" (Senator Howard) in return for the protection extended to persons “subject to the jurisdiction of the United States” and for the attendant rights, privileges and immunities U.S. citizenship guarantees to such persons.
Allegiance and obedience. Allegiance, however, is often confused with obedience. Allegiance, as defined, is the obligation of loyalty owed to one’s country; obedience, the willingness to comply with its laws. The “loyalty” that allegiance obligates denotes an emotional state of mind, feeling or sentiment (love of country), while obedience connotes conduct, something done or performed (obey the laws).
"Within its jurisdiction." In fact, persons who owe obedience to a state may not necessarily owe allegiance thereto, which explains why, an alien, although obligated to owe obedience to the laws of a state while temporarily “within its jurisdiction,” continues to owe allegiance to a foreign state. Blackstone cited above refers to this temporary "obedience" of aliens as "local allegiance."
The penultimate line in Sec. 1 of the Fourteenth (the same section as the Citizenship Clause) declares:
Plyler v. Doe (1982) said:
In a word, the phrase “within its jurisdiction” refers to “anyone, citizen or stranger who is subject to the laws of the State”--and hence, owes obedience to its laws. Evidently, these two terms appearing in the same section 1 of the Fourteenth--“subject to the jurisdiction” and “within its jurisdiction”--are not synonymous.
Subject to the jurisdiction. Senator Howard qualifies the word “jurisdiction”:
Persons “subject to the jurisdiction” of--and reciprocally owing allegiance to--a State outwardly express their “loyalty” by owing obedience thereto, for “the test of loyalty is conduct rather than intensity of feeling.”
Owing allegiance is, therefore, inseparable with owing obedience, which is precisely what Calvin’s Case proclaimed, quoted earlier here:
Thus, automatically and reciprocally in return, the “natural born” (including the children of undocumented aliens), unless they voluntarily renounce their allegiance to the United States, are obligated to, among others:
--“support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic”
--“bear arms on behalf of the United States when required by the law” or
--“perform noncombatant service in the Armed Forces of the United States when required by the law”
--“perform work of national importance under civilian direction when required by the law.”
Anchor babies. Unfortunately, it is this reciprocal duty and obligation of obedience and allegiance to the United States that birthright equally (harshly, to some) imposes automatically upon “all persons born in the United States”--conferred citizenship likewise automatically “by virtue of natural law”--that seems to have been conveniently ignored and forgotten in the controversy over the so-called “anchor babies” of undocumented aliens, which is unfairly focused more on the magnitude of the funds Government incurs to subsidize the benefits and privileges persons so born are entitled to enjoy.
It is as if there is a price to be paid by the “natural born” for the reciprocal duty of owing obedience and allegiance and of sacrificing life and fortune for love of country.
C. "OR NATURALIZED".
Note at the outset 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. (2897, 3rd col.)
Rather, the words were inserted a full week later on June 8th "after the word 'born,'" upon motion of Senator William Pitt Fessenden, Chair of the powerful Joint Committee on Reconstruction, and "agreed to," without any debate, "by general consent" (3040, 2nd col., bold added):
Justice Horace Gray in U.S. v. Wong Kim Ark (1898) refers to this omission:
So, sans the words “or naturalized,” Senator Howard's original draft that was debated and agreed to on May 30, 1866 simply reads (2890, 2nd col.):
NOTE: The insertion of the words “or naturalized” may have contributed to the grammatical confusion in the reading of the Clause as ratified, since the conjunction “or” in the inserted words "or naturalized" adds another conjunction in the subject of the Clause, the second to the author’s original conjunction “and.”
NOTE: Unless otherwise indicated, citations from the Congressional Globe, 39th Congress, 1st Session, during the debate to be quoted in this paper are based on the discussion of Senator Howard’s original draft without the words “or naturalized,” particularly pages 2890-2897, May 30, 1866.
D. QUALIFYING PHRASE
Justice Horace Gray in U.S. v. Wong Kim Ark (1898) read the phrase, "subject to the jurisdiction thereof," as a qualifier of the line preceding it, to the extent that, "All persons born or naturalized in the United States" must--at the moment of birth or naturalization--be “subject to the jurisdiction thereof":
"Recognized exceptions." But the author himself, Senator Howard, in his sponsorship speech already declared that his draft “will not, of course, include” the “recognized exceptions” Justice Gray speaks of.
To highlight this point, underscore his use of the adverb “of course,” meaning “as might be expected” or “without any doubt.”
Having said that, why would Senator Howard still provide (six words in all, at that) for such redundant, superfluous “exceptions” already “recognized,” in the words of Justice Gray himself, “from the time of the first settlement of the English colonies in America”?
And this exclusion even extends to the Aboriginal Indians:
Children born abroad "were and are aliens." Chief Justice Fuller continues:
Chief Justice Fuller later reiterates his view:
Thus, to Chief Justice Fuller, under Wong Kim Ark, the children of U.S. citizens born abroad since 1868 “were and are aliens”; sadly, he adds, these foreign-born could only be “naturalized in the United States”--and could not possibly be “naturalized” if they happen to be somewhere else at the time of naturalization--with the rather grim caveat that “no statutory provision to the contrary is of any force or effect.”
Chief Justice Fuller, of course, was merely reiterating what Justice Samuel Miller earlier said in The Slaughter House Cases (1873):
The stark reality of excluding "the children of aliens" Chief Justice Fuller raised as the more reasonable ground behind the inclusion of the phrase--and its reciprocal relation to allegiance--to account for "exceptions" is no doubt the one seemingly insurmountable consequence of the Wong Kim Ark reading that needs to be convincingly explained, since the reading of the phrase to account for already "recognized exceptions" that can later on be stretched to even include "the children of aliens" or of "citizens or subjects of foreign states" would ran counter to the basic common law principle behind the jus soli rule, to the effect that the status of the child does not depend upon parentage but upon the place of birth alone.
Ineligible to the presidency. What really bothered Chief Justice Fuller was the manner in which foreign-born children of American parents were shabbily treated as “aliens,” when he compared them with “children who are aliens by descent, but born on our soil [who] are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court” and “eligible to the presidency, while children of our citizens, born abroad, were not.”
Justice Gray's majority opinion in Wong Kim Ark added a more disturbing note:
So, to Justice Gray, “during the half century intervening between 1802 and 1855,” foreign-born children of American parents who had not become U.S. citizens before the act of 1802 would be regarded as aliens.
This defect in our law. Note that “this defect in our law,” with “no legislation whatever for the citizenship of children born abroad” Justice Gray refers to that lasted well over half a century, was supplied by law only in 1855, and would still have been fresh in the minds of the 39th Congress eleven years later in 1866, since Senator Howard, in his sponsorship speech, underscored that the draft he proposed--
So, is the phraseology in Senator Howard's draft of the Clause the "desideratum" intended to correct "this defect in our law”--which allows a mere act of congress to restrict "the right of citizenship" to children of U.S. citizens born abroad--from ever recurring?
"The law does not concern itself with trifles." A week before the Clause was debated, Senator Benjamin Franklin Wade proposed to insert a similar line, which read:
A misplaced concern with “trifles” that “could hardly be applicable to more than two or three or four persons” was obviously what Chief Justice Fuller also had in mind when he said what was earlier cited above in his Wong Kim Ark dissent: “There was no necessity as to them for the insertion of the words, although they were embraced by them."
"Born subject to the jurisdiction of the United States." Justice Harlan (Justice William Woods concurring) argued a different view which I regard as compelling, even in dissent, in response to the majority holding in Elk v. Wilkins (1884) that: “Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof.”
So, mark this: To Justice Harlan, dissenting, persons acquire “the rights of national citizenship” under the Clause not only at birth, “born in the United States”; but also, more importantly, “from and after the moment they become subject to the complete jurisdiction of the United States,” meaning after birth. “in respect of persons born in this country.”
In a word, the Clause is not just about jus soli, after all; for what Justice Harlan is saying here is that the Clause should be read as likewise conferring citizenship upon persons who “become subject to the complete jurisdiction of the United States” after birth.
To buttress his dissent, Justice Harlan cited the remarks of Judiciary Committee Chair Senator Trumbull, during the debate (alluding to aboriginal Indians):
The phrases cited, “persons who come completely within our jurisdiction” and “those brought under our jurisdiction,” obviously do not refer to persons at the time of birth; rather, Senator Trumbull’s remarks no doubt point to persons already born, “who come completely within,” or are “brought under,” the jurisdiction of the United States after birth.
A monumental reading error. If Chief Justice Fuller (with Justice Harlan concurring) disagrees with the Wong Kim Ark reading that the phrase “and subject to the jurisdiction thereof” refers to “the recognized exceptions” and Justice Harlan in Elk (with Justice Woods concurring) asserts that the Clause itself confers citizenship not only at birth but also after birth, how is the phrase “subject to the jurisdiction thereof” to be read?
Is the Wong Kim Ark reading that views the phrase “and subject to the jurisdiction thereof” as a qualifier of the line preceding it, “All persons born,” a monumental reading error?
E. PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES
Immediately after the author’s sponsorship speech, Senator James Doolittle proposed "to amend” Senator Howard’s draft “by inserting after the word 'thereof' the words 'excluding Indians not taxed'" (2890, 3rd col.).
In fact, it was the ensuing discussion of Senator Doolittle’s proposal on “excluding Indians” that the eight 3-column pages (2890-2897) in the Congressional Globe of the debate were devoted solely to.
Fearful of the consequences of "the very language" Senator Howard used, Senator Doolittle warned:
Remarkably, at page 2897, 1st col., 2nd par., as the debate was about to close that day, Senator Doolittle directly quoted (shown printed in quotation marks in the scanned original transcript) how “the language” of the phrase was understood to mean, and the reason behind why he had proposed to amend it:
To repeat for emphasis the phrase Senator Doolittle quoted as "the language which he [Senator Howard, the author] uses":
And to underscore Senator Doolittle's persistence concerning the "very language" the author, Senator Howard, used, compare his other remarks cited earlier above (2896, 1st col., bold added):
The Congressional Globe transcripts of the debate will show that “the language” Senator Doolittle directly quoted was accepted, unchallenged; Senator Howard, in fact, in his reply to Senator Doolittle, did not object to the citation nor offer any correction.
Surprisingly, Senator Doolittle’s direct quotation of how the phrase was understood to be employed in the Clause has never been accorded the critical attention and widespread scrutiny it deserves and remains to this day lamentably unnoticed.
F. GRAMMATICAL ANALYSIS
Now why would Senator Doolittle add the words “all persons” to the phrase “subject to the jurisdiction thereof” in Senator Howard’s draft? Was the phrase intended to be read in this way?
Shorn of all modifiers, while leaving punctuation marks intact, Senator Howard’s draft (originally, without the words "or naturalized") would have simply read:
Persons born, and subject to, are citizens.
Let's analyze its construction.
Non-restrictive element is set off by a pair of commas. Note that the phrase “and subject to the jurisdiction thereof” is enclosed between a pair of commas.
The relevant punctuation rule in elementary English grammar says: “if it can be omitted,” which means that the element is “non-restrictive, it can be set off by commas”; if not, which means that the element is “restrictive, it should not be set off by the comma.”
In placing the first comma before the coordinator “and,” the rule laid down in The Elements of Style by Strunk (1918) applies: “If a parenthetic [or non-restrictive] expression is preceded by a conjunction,” the rule is “place the first comma before the conjunction, not after it.”
And, in the case of the second comma placed before the linking verb “are,” “Grammar English's Famous Rule of Punctuation” is: “Never use only one comma between a subject and its verb.”
So, parsing it consistent with these rules: Were the commas Senator Howard, the author, inserted between the words, "and subject to the jurisdiction thereof," intended to identify and distinguish it as a non-restrictive phrase, precisely to avoid the confusion of being mistaken later as “restrictive” or a modifier (read as such under Wong Kim Ark) of the element preceding it, "All persons born in the United States"?
Coordinating conjunction “and" creates a compound. Then there is the coordinating conjunction “and,” which, as defined, connects “words, phrases or clauses that are of equal importance or have the same grammatical structure within a sentence.” In particular, a “compound subject” is defined as “two or more noun phrases (and their modifiers, if any) joined together with a coordinating conjunction.”
So, by placing the first comma before the coordinator “and” and inserting the second before the linking verb “are,” effectively enclosing the phrase “and subject to the jurisdiction thereof,” is Senator Howard conveying, grammatically, the intention that his draft consists of a compound subject “that are of equal importance” conjoined by the coordinator “and,” with a common predicate, depicted as--
First subject: “All persons born in the United States,” and
Second subject: “subject to the jurisdiction thereof”
Second subject of the compound is an elliptical. But why is the main noun (or pronoun) in the second subject missing? There is actually none to speak of. But since the phrase, “and subject to the jurisdiction thereof,” is the second of a compound subject; then, it is doubtless structured as an elliptical, defined as “grammatical structures that omit words that they would usually include.” The “missing subject of the elliptical clause should always be the same as the explicit subject of the main clause.”
Having been joined together by the coordinating conjunction “and,” the compound subject of the Clause is in a “coordinate configuration”; hence, the unexpressed element, or the main noun “missing,” in one subject of the compound is meant to be understood, rather than to be stated or repeated--recoverable or inferable from the context of the other subject it is coordinate with.
The “missing” main noun between the word “and” and the phrase “subject to” in the second subject, “and subject to the jurisdiction thereof”--Senator Howard enclosed within a pair of commas, with the first comma placed before the coordinator “and”--should thus be the same as the “explicit” main noun of the first subject, “All persons born in the United States,” which is “All persons,” acting as the antecedent, common to both the two subjects in “coordinate configuration” in the compound.
So, since the grammatical subject of the Clause is structured as a compound in a “coordinate configuration,” is the second subject, "and subject to the jurisdiction thereof,” the elliptical for the complete construction, "and [all persons] subject to the jurisdiction thereof"--with the main noun phrase "all persons" in the second, common to both, omitted or understood rather than stated or repeated for brevity or style and inferable from "All persons" in the first subject it is coordinate with?
The other elliptical. As if to emphasize the author’s reliance on the grammatical device of an elliptical (to those, perhaps, who may be reluctant to concede its use later) as the means to convey his intent in describing a compound in “coordinate configuration”; there is this second elliptical Senator Howard employed in structuring the other compound in the Clause. And this is the compound object of the linking verb “are”
Here, the Second object, "citizens," common to both, and similarly joined to the First by the coordinator “and,” is likewise omitted rather than stated or repeated for brevity or style and inferable from the same object, "citizens," in the First it is coordinate with.
Another elliptical in Sec. 1 of the Fourteenth. In fact, the Second negative in the penultimate line in Sec. 1 of the Fourteenth (the same section as the Clause) is likewise structured as an elliptical, with the omission of the phrase "shall any State" (auxiliary verb and subject inverted), for brevity or style and inferable from that in the First negative also introduced by the conjunction "nor"--"nor shall any state deprive ...":
Senator Howard's intent. Thus, grammatically read as intended by the author, Senator Howard, the complete construction of the Citizenship Clause (consisting of a compound subject and a common predicate) that the Senate debated and approved on May 30, 1866 (without the phrase “or naturalized” which was inserted later on June 8th) is:
“All persons born in the United States, and [all persons] subject to the jurisdiction thereof, are citizens of the United States and [citizens] of the State wherein they reside.”
First subject– “All persons born in the United States”
Second subject – “[All persons] subject to the jurisdiction thereof”
NOTE: Senator Howard could have easily avoided using the elliptical structure for the second subject of the compound and inserting the comma before the coordinator grammatically required to allow the omission of words, by instead availing of the applicable plural pronoun, “those,” which is the antecedent of the “explicit” main noun phrase in the subject of the first, “All persons,” to read: “and those subject to the jurisdiction thereof.” But the word, “those,” is a vague indefinite pronoun, which Senator Howard understandably refrained from employing, since indefinite pronouns are deemed inappropriate in formal or legal writing.
NOTE: The punctuation mark Senator Howard employed in the grammatical subject of his draft allowing the use of the elliptical to avoid a “repeated subject” is what Robert Brittain [sic] in Correct Punctuation (1997) identifies as a “comma-plus-coordinating-conjunction (…and…).” He defines it as “a single mark composed of two symbols, one which we normally think of as a punctuation symbol and the other as a word symbol” and can be used “if you only have one subject but want to tell the reader two different things about that subject,“ yet “dislike the effect of a repeated subject.”
NOTE: A “gapping comma” is meant “to show that one or more words have been left out when the missing words would simply repeat the words already used earlier in the same sentence,” and It “indicates that you have decided not to repeat some words which have already occurred in the sentence.”
NOTE: An innocuous comma is often crucial--even fatal. “Sir Roger Casement was 'hanged by a comma.' This British diplomat was charged with treason during WW I. His trial centered on the question; 'Did the law apply to acts of treason performed abroad?' The answer depended on whether or not there were a pair of commas in the relevant section of the law. It was ruled there were, and Casement was hanged.” (From a book review of Lynn Truss, Shoots, Eats & Leaves, 2004)
Comma omitted before the conjunction “and” in 1866 Civil Rights Act. Assuredly, this trifle concern for a pair of commas enclosing the phrase “and subject to the jurisdiction thereof” is not just nit-picking.
A similar clause in the 1866 Civil Rights Act (which was enacted only two months earlier by the same 39th Congress) omits the pair of commas, particularly the comma placed before the coordinator “and”--
NOTE: Text quoted above is taken from the scanned printed original copy of S. 61, Civil Rights Act, Bills and Resolutions, Senate, 39th Congress, 1st Session, March 13, 1866, now 14 Stat. 27-30, April 9, 1866.
Compare the above-cited provision in the Civil Rights Act with Senator Howard's draft of the Citizenship Cause below (without the words "or naturalized") with the phrase "and subject to the jurisdiction thereof" enclosed between a pair of commas:
“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.”
By omitting the comma before the coordinator “and,” the author of the Civil Rights Act (Senator Lyman Trumbull) is conveying the intention that the phrase "not subject to any foreign power" is "restrictive," which means that, grammatically understood, it is intended to modify, qualify or restrict the phrase preceding it, "All persons born in the United States."
And this, in fact, was how it was read and understood to mean, even to this day--as a “qualifying phrase,” owing, to repeat, to the absence of a crucial comma before the coordinator "and,"
But why did Wong Kim Ark read a phrase that is enclosed between a pair of commas likewise as a "qualifying phrase" of the element preceding it?
This matter, of course, should be left to grammarians to resolve.
However, since it was the same 39th Congress and its Committee on Style that edited these similarly-phrased provisions written barely two months apart, would they have applied the same elementary English grammar rule selectively, arbitrarily?
G. "EVERY OTHER CLASS OF PERSONS"
Senator Howard continues with his sponsorship speech:
After identifying the exceptions to “persons born in the United States” that his draft “will not, of course, include,” Senator Howard declares that his draft “will include every other class of persons.”
"Every other." The phrase “every other” suggests that his draft “will include” all of several “class of persons,” to the same extent as a similar phrase used in Art. IV, Sec.1 is intended to convey:
NOTE: Compare the phrases “every other class” with “every other State.”
"Settles the great question of citizenship" and "removes all doubt as to what persons are or are not citizens." If, indeed as claimed, the draft Senator Howard proposed “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States [which] has long been a desideratum in the jurisprudence and legislation of this country”; then, certainly, he would have had written his draft to be so definitively worded as to convey an all-encompassing, comprehensive definition of citizenship of the United States to include "all persons," that is, “every other class of persons” already regarded, or to be recognized, as citizens, and not only those “born in the United States,” to achieve his rather ambitious quest, bold and sweeping as it is, of addressing once and for all “the great question of citizenship” by removing “all doubt as to what persons are or are not citizens.”
So, is the Wong Kim Ark view which reads the phrase enclosed between commas, "and subject to the jurisdiction thereof," as a mere qualifier of the element preceding it, "All persons born or naturalized in the United States," consistent with the author's declaration that his draft "settles the great question of citizenship" and "removes all doubt as to what persons are or are not citizens"?
"By virtue of natural law and national law." Besides, if Senator Howard’s draft is really what he proclaimed it to be anchored upon, which is that, it “is simply declaratory of what I regard as the law of the land already … by virtue of natural law and national law”; then, accordingly, the category of “every other class of persons” Senator Howard refers to in his speech must be read to include all of several class of persons already recognized “by virtue of natural law,” or otherwise declared “by virtue of national law,” to be citizens of the United States at the time he wrote the draft in 1866--and not just the privileged class of jus soli, even assuming that there still were, at that time in 1866, several “other class of persons” born in the United States, already declared to be citizens “by virtue of natural law and national law,” which, as argued above, is highly unlikely.
The IDEAL Citizenship Clause?
Viewing his speech as words that amplify the author’s intent, what all these niceties (“settles the great question of citizenship” and “removes all doubt”) actually imply is that the amendment to the Constitution that Senator Howard proposed in his draft was intended to define what the ideal Citizenship Clause ought to be (“simply declaratory of what I regard as the law of the land already … by virtue of natural law and national law”)--a Clause establishing “a clear and comprehensive definition of citizenship” that recognizes in no uncertain terms "all persons" (“will include every other class of persons”) to be regarded as citizens of the United States.
"Clear and comprehensive definition of citizenship." Justice Hugo Black, with whom Justice William O. Douglas and Justice Thurgood Marshall join, dissenting in Rogers v. Bellei (1971) argues the same observation on a “comprehensive definition” of citizenship that the Clause was intended to confer, citing several sources:
In fact, there can only be one class of “persons born in the United States,” since birthright under jus soli is a unique status vested at birth, upon the indelible circumstance of place of birth, irrespective of parentage, race, color, creed or purse--anchor babies included.
So, if those “born in the United States” (the slave-born included) represent only one class of persons, while the category of “every other class of persons” Senator Howard said his draft “will include” implies that there are several others to reckon with; who, pray tell, belongs to this category of “every other class of persons” similarly declared or recognized “by virtue of natural law and national law” to be citizens of the United States at the time the Clause was debated in 1866?
Where are these "other class of persons" now? Where have they all gone?
Non-citizen U.S. nationals owing permanent allegiance. As it is now, there is a statutory class of persons declared as owing “permanent allegiance to the United States” that the law merely regards as “non-citizen nationals.”
Under the United States Code at Chapter 12, Sub-chapter 1, Sec. 1101 (a), owing allegiance to the United States does not guarantee American citizenship:
Hence, aside from the constitutionally-recognized status of “citizen” and “alien,” the U.S. Code coined in 1954 an additional legal status, “national of the United States,” a person who “owes permanent allegiance to the United States” but may not be recognized as a citizen of the United States.
NOTE: The term "National" was "originally intended to account for the inhabitants of certain territories--territories said to 'belong to the United States,' including the territories acquired from Spain during the Spanish-American War, namely the Philippines, Guam, and Puerto Rico--in the early twentieth century who were not granted U.S. citizenship, 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." (see Charles Gordon et al., Immigration law and procedure, Sec. 91.01[3][b], at 91-5, rev. ed. 1997, cited in Marquez-Almanzar v. INS, 2003).
NOTE: The status of "National" 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 or otherwise suggest that they might aspire to equality under the American constitutional system." (José A. Cabranes, Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans, 127 U. Pa. L. Rev. 391, 396-97 n.12 , 1978, cited in Valmonte v. INS, 1998 WL 54575, 2nc cir., 11 Feb 1998).
NOTE: For an extended discussion regarding the status of "National," see Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire, 161 (2006)
But would Senator Howard have agreed to a provision of law that openly mocks the constitutional significance of allegiance in the Clause he drafted, by brashly denying citizenship to a defined class of persons who “owes permanent allegiance to the United States” at that?
"Beyond the legislative power." In fact, during the debate, Senator Howard highlighted the importance of this “great question of citizenship” that his draft was intended to resolve, by bluntly reminding his colleagues that the sanctity of citizenship conferred upon “all persons” recognized and qualified would now be finally enshrined in the tabernacle of the Constitution, well beyond the tentacles of the legislative power:
Justice Hugo Black in Afroyim v. Rusk (1967) footnoted Senator Howard's remarks above in saying:
H. THE AUTHOR'S DRAFT RECOGNIZES A SECOND CATEGORY
In this light, did Senator Doolittle (“all persons subject to the jurisdiction of the United States”) and Justice Harlan (persons acquire “the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States”) read the phrase (“and subject to the jurisdiction thereof”) to mean what Senator Howard may have intended it to convey--the recognition of a Second category of “national citizenship,” other than the category of “all persons born in the United States”?
Of course, bound by stare decisis, the legal community is clueless. Fact is, the “qualifying phrase” view is now the accepted gospel truth; thus, to claim or even suggest that a Second category may exist at all is unthinkable (even idiotic?).
But this is not just about the various legislative proposals to restrict birthright that the “qualifying phrase” reading is now relied on to justify; for this also involves a far more important issue--the possible denial of the Right to Citizenship of a still-unrecognized, over-looked category of now-disowned citizens of the United States.
Certainly, it deserves to be examined more thoroughly, for in the words of Chief Justice Earl Warren, dissenting in Perez v. Brownell (1958):
So, grammatically analyzed, to repeat: Is the non-restrictive, elliptical phrase defining the Second of the compound subject of the Clause, "and subject to the jurisdiction thereof," meant to be viewed as recognizing a Second category
If so, then, the original draft Senator Howard proposed that the Senate “agreed to” on May 30, 1866 was intended to be read as recognizing two categories of citizens of the United States:
“All persons born in the United States, and [all persons] subject to the jurisdiction thereof, are citizens of the United States and [citizens] of the State wherein they reside.”
First category – All persons born in the United States
Second category – All persons subject to the jurisdiction of the United States
And upon its amendment on June 8th to include the words “or naturalized” after the word “born” a third category is inserted:
Third category – All persons naturalized in the United States
No territorial limitation. As distinguished from the First, “born in the United States”--which identifies a place, “in the United States,” however this phrase may be defined by law to mean--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.
Nor does the Second imply, any such country, state, district or territory Congress or the Court may define as "foreign" or “appurtenant and belonging to the United States, but not a part of the United States” (enunciated under the “occult” doctrine of “incorporated territory” in the Insular Cases), “organized,” “unincorporated,” “ceded,” “annexed,” “contiguous,” “insular,” “occupied,” or any other synonymous term, which is to be regarded as the determinant place of birth or residence in order to qualify.
Rather, irrespective of territory, district, place or country, it is the Sanctity of the Person and the circumstance or privilege of being “subject to the jurisdiction of the United States,” and to use Justice Harlan’s words, “from and after the moment,” that alone matters to qualify under the Second category as a citizen of the United States.
Confers citizenship at birth and after birth. Add to that, the Second category confers U.S. citizenship, not only upon persons born “subject to the jurisdiction of the United States” or “from and after the moment” at birth, as in the First (persons “born”), but also, as Justice Harlan already asserted in Elk, “from and after the moment they become subject to the complete jurisdiction of the United States” or after birth, meaning naturalization.
Senator Howard on naturalization. The United States Code at Sec. 1101 (a), Chapter 12, Sub-chapter 1 defines the term “naturalization”:
Underscore the limiting keywords “after birth.” Naturalization, therefore, can only be conferred after birth, “by any means whatsoever”; but no person can be “naturalized” at birth, since nationality is created or attaches at birth.
Insofar as naturalization or the acquisition of citizenship after birth is concerned, the most telling argument during the debate for the recognition of a Second category comes from remarks of the author, Senator Howard, no less.
For in the course of his vigorous objection to Senator Doolittle’s proposal to insert the words, “excluding Indians not taxed,” to his draft, Senator Howard mentions “naturalization”--the status that can only be conferred after birth--several times, in this manner:
Note that Senator Howard here speaks of "the whole Indian population"--which obviously refers to aboriginal Indians already born--to be naturalized (after birth) "in the shape of the imposition of a tax."
Senator Howard adds:
So, if, as claimed under Wong Kim Ark, the phrase “and subject to the jurisdiction thereof” merely acts as a “qualifying phrase” to “All persons born” or at birth--which is proposed to be qualified further by Senator Doolittle’s amendment, “excluding Indians not taxed”--why would Senator Howard, certainly aware that naturalization applies only to persons after birth, contradict himself by arguing that Senator 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,” of persons already born?
In other words, if “naturalization” can only be conferred after birth, why would Senator Howard call as “naturalization” the status conferred at birth--that is, “All persons born in the United States”--who, as claimed under Wong Kim Ark, must at the moment of their birth, be (1) “subject to the jurisdiction thereof” and, had Senator Doolittle’s amendment been accepted, (2) “excluding Indians not taxed”?
And the reason 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,” but as a distinct Second category of citizens of the United States at birth or after birth.
In short, Senator Doolittle’s proposal was directed at qualifying the Second category, to the effect that “all persons subject to the jurisdiction of the United States” must exclude “Indians not taxed.”
Thus, under Senator Doolittle's amendment, the moment a State “imposes taxes upon Indian tribes within her limits,” Indians who are now “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 through the act of taxation, “whenever,” in the words of Senator Howard, “the States saw it fit to impose a tax upon the Indians.”
Senator Howard naturally objected:
In view of all these, there is, after all, a Second category of citizens of the United States--“all persons subject to the jurisdiction of the United States,” which is the complete construction for the elliptical Senator Howard employed in his draft, “subject to the jurisdiction thereof,” that Senator Doolittle directly quoted, and Justice Harlan, dissenting in Elk, suggested, “in respect of persons born.”
I. WHO WERE THEY AND WHERE ARE THEY NOW?
Senator Howard in his sponsorship speech:
1. "BY VIRTUE OF NATIONAL LAW”
Senator Howard posits that the draft he offered “is simply declaratory of what I regard as the law of the land already …… national law.”
But were there “other class of persons” already recognized and declared “by virtue of … national law” to be citizens of the United States at the time the Clause was debated in 1866?
--Civil Rights Act of 1866: “All persons born." As already discussed, the same 39th Congress enacted only a two months earlier a “national law,” the Civil Rights Act of 1866. But the citizenship provision in that Act was what Senator Howard was proposing to revise in his draft which, in fact, was the subject of the debate ongoing.
Even then, the Act similarly declares what the Clause itself also proclaims: “All persons born.”
--Naturalization Act: Children of U.S. citizens “born abroad.” At that time in 1866, a “national law,” the Naturalization Act of 1855 (repealing the first in 1790 and the later amendments in 1795 and 1802), provided that:
by virtue of
Under the Second category of the Senator Howard's draft, children of U.S. citizens born abroad are now constitutionally "natural-born"--and not just statutorily to be "considered as"--citizens of the United States
--Naturalization Act: Aliens “naturalized.” To recall, Senator Howard’s draft--that was debated and approved by the Senate--did not include the words “or naturalized.” But his omission of these words does not necessarily imply that aliens “naturalized” are excluded from among those who belong to the class of persons who are not “born in the United States” Senator Howard describes as “every other class of persons” to be recognized likewise as “citizens of the United States.”
Rather, aliens “naturalized” certainly qualify to be included; for, as already cited earlier here, the Naturalization Act--a “national law” in force in 1866 Senator Howard speaks of--already stipulated:
This obviously explains the reason why Senator Howard omitted the words “or naturalized” in his draft, for its inclusion would have provoked an uncalled-for superfluity, since aliens applying for naturalization to be admitted as citizens of the United States are actually petitioning to be placed “subject to the jurisdiction of the United States” and, reciprocally, to pledge allegiance thereto--which precisely falls under the Second category of Senator Howard’s draft.
Class of persons "by virtue of national law." Thus, the Second category includes the following “class of persons” that were already declared or recognized to be citizens of the United States under the Naturalization Act in force in 1866 or, in Senator Howard’s words ”by virtue of national law”:
01. At Birth (Natural-born): Children of U.S. citizens (mother or father) “born abroad” or “born out of the limits and jurisdiction of the United States” are persons born “subject to the jurisdiction of the United States” and hence "born in the allegiance of the United States."
02. After Birth (Naturalization): Aliens naturalized are persons who apply, and are admitted, to become “subject to the jurisdiction of the United States” and pledge to owe allegiance to the United States.
2. “BY VIRTUE OF NATURAL LAW”
Senator Howard in his speech contends further that his draft likewise recognizes the citizenship persons acquire “by virtue of natural law” which, again, “is simply declaratory of what I regard as the law of the land already.”
But what “natural law” is Senator Howard talking about?
Birth within the dominions and birth within the allegiance. A seminal paper Polly J. Price wrote on "the natural law origins of birthright citizenship in the common law" explores “Calvin's Case (1608) and the early modern common-law mind that first articulated a theoretical basis for territorial birthright citizenship” (Natural Law and Birthright Citizenship in Calvin’s Case, 9 Yale J.L. & Human. 73, 82, 1997), and to quote in part the paper’s introduction:
Justice Gray in Wong Kim Ark, restates the “fundamental principle” prevailing:
“Obedience and allegiance that makes the subject born.” He continues and refers to Calvin’s Case (1608), the case controlling, Polly J. Price also cited:
And to quote the footnote citing the principle Calvin’s Case laid down:
Justice Gray concludes:
“Subject to the jurisdiction” means “owing allegiance." Judiciary Committee Chair Senator Lyman Trumbull (author of the Civil Rights Act) explains the meaning of “subject to the jurisdiction of the United States” in the context of the Clause (2893, 1st col.):
“Within its jurisdiction.” Embedded in the penultimate line in Sec. 1 of the Fourteenth (the same section as the Citizenship Clause) is the phrase “any person within its jurisdiction”:
Plyler v. Doe (1982) describes the extent of the phrase “within its jurisdiction”:
In a word, the phrase “within its jurisdiction” refers to “anyone, citizen or stranger who is subject to the laws of the State or the United States”--and hence, owes obedience to their laws.
Evidently, these two terms appearing in section 1 of the Fourteenth--“subject to the jurisdiction” and “within its jurisdiction”--are not synonymous. For, to Senator Trumbull, a person “subject to the jurisdiction of the United States” (Citizenship Clause) owes allegiance thereto, and hence a citizen thereof; while under Plyler v. Doe, a person merely “within its jurisdiction” (Equal Protection Clause) refers to “anyone, citizen or stranger.”
“Subject to the jurisdiction thereof” and “not subject to any foreign power,” synonymous? In his dissent in Wong Kim Ark, Chief Justice Fuller (Justice Harlan concurring), citing the remarks of Senators Trumbull and Reverdy Johnson during the debate, expressed the view that the phrases “subject to the jurisdiction thereof and “not subject to any foreign power” (Civil Rights Act) are “synonymous”:
But, if both phrases are “synonymous,” at least insofar as they are claimed to qualify the phrase “All persons born,” or at birth, why would Senator Trumbull speak of “those persons” (alluding to aboriginal Indians) in this manner?
The phrases cited above, “persons who come completely within our jurisdiction” and “those brought under our jurisdiction,” obviously do not refer to persons at the time of birth; rather, Senator Trumbull’s remarks no doubt point to a still-unrecognized Second category of persons already born, “who come completely within,” or are “brought under,” the jurisdiction of the United States after birth.
NOTE: Justice Harlan cited Senator Trumbull’s remark at p. 2893, 2nd col. to buttress his dissent in Elk, asserting that, as already quoted earlier here, persons “may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States” after birth “in respect of persons born in this country.”
"Language is better than the language employed in the Civil Rights Act." Senator Trumbull compares the "language" used in the Citizenship Clause with that in the Civil Rights Act.
Pair of commas (again). Then, there is Senator Johnson’s view that Chief Justice Fuller cited, asserting that “all that this amendment provides is that all persons born within the United States, and not subject to some foreign power (for that, no doubt, is the meaning of the committee who have brought the matter before us).”
This, of course, is the correct reading of the phrase without the pair of commas enclosing it, which was how the “synonymous” phrase in the Civil Rights Act was grammatically employed. The “synonymous” phrase Senator Howard used in the Clause, however, is enclosed within a pair of commas.
So, even if both phrases are synonymous, what matters is how they are employed, grammatically.
Enclosing the phrase “and subject to the jurisdiction thereof” in the Clause with a pair of commas (the first before the coordinator “and,” and the second before the linking verb “are”) would necessarily convey an entirely different meaning or intent as the “synonymous” phrase--sans the commas--in the Civil Rights Act; hence, what has, no doubt, lead to all the confusion concerning the author’s intent is the ungrammatical reading of the Clause that disregards or ignores altogether the pair of commas Senator Howard deliberately inserted to enclose the phrase “and subject to the jurisdiction thereof” with.
NOTE: The Congressional Globe transcripts of the debate during the Civil Rights Act and the Clause itself have not been helpful in this regard, for the commas are sometimes omitted and inserted. In fact, with due respect, the first comma before the conjunction “and” is omitted in several instances that the Clause is cited in Rogers v. Bellei. Thus, had the commas been accorded the significance and attention Senator Howard intended it to convey, the Second category would not have been overlooked for so long.
“Within the dominions” (District of Columbia and the territories)
There is another “class of persons” falling under the criteria of “natural law.”
What about those born or residing “within the dominions,” specifically “in the District of Columbia and in the Territories” situated outside of the fifty States “in the United States,” including the inhabitants of ceded territory at the time of annexation (over whom the United States now exercises the rights of sovereignty and jurisdiction), particularly their children, born later, who are already “within the realm and within the allegiance” and “subject to the jurisdiction of the United States”?
Do they qualify or become obligated to belong to Senator Howard’s Second category of “all persons subject to the jurisdiction of the United States“ or to “every other class of persons” his draft recognizes as citizens of the United States “virtue of natural law”?
Acquisition of citizenship, treaty-making power, During the Civil Rights Act debate, Senator Reverdy Johnson discussed the status of inhabitants residing in territory ceded under the treaty-making power (Louisiana and Florida):
Acquisition of citizenship, joint resolution of Congress. Senator Johnson continues with his remarks concerning the status of the inhabitants in Texas conferred “by joint resolution of the two Houses”:
The District of Columbia and the territories. In 1872, four years after the ratification of the Fourteenth in 1868, the U.S. Supreme Court handed down its first ruling on the Citizenship Clause in the Slaughter-House Cases, and said:
Justice Samuel Miller in Slaughterhouse highlights the diversity of opinions concerning the status of persons in “the District of Columbia or in the Territories” at the time the Clause was debated in 1866:
Justice Joseph Bradley, dissenting in Wong Kim Ark, argued the same view Justice Miller articulated:
“To persons everywhere.” Senator Trumbull during the debate, in reply to Senator Johnson, delineated the extent of the reach of the Clause as “everywhere” (comparable to “any place” in the phraseology of the Thirteenth), so long as that person remains “subject to the jurisdiction of the United States,” and to quote:
For, under “natural law,” persons born or residing “within the dominions and within the allegiance” or “those who had been born and resided always in the District of Columbia or in the Territories” are to be regarded as “natural-born” citizens of the United States, particularly “inhabitants of Federal territories and new citizens by annexation of territory …
Territories ceded under the 1898 Treaty of Paris. However, persons born in Puerto Rico and Guam, territories ceded under the 1898 Treaty of Paris, “appurtenant and belonging to the United States, but not a part of the United States” (being “unincorporated” under the “occult” Doctrine of Incorporated Territory the Insular Cases enunciated) are deemed merely as second-class “statutory,” not “Fourteenth Amendment first sentence,” citizens of the United States, a “U.S. citizenship” the Congress--it is claimed--may confer by “collective naturalization” (even “at birth”?) and may unilaterally revoke at its pleasure.
NOTE: Persons born or residing in the U.S. Virgin Islands acquire the same status as Puerto Ricans and Guamanians, while persons born or residing in American Samoa are “non-citizen U.S. nationals.”
Territorial Filipinos, by law in the subjunctive mood, “shall be regarded as if they were aliens.” As regards Territorial Filipinos (Filipinos born in the U.S. territory of the Philippine Islands during the American territorial period between1898-1946 and judicially recognized to be “persons subject to the jurisdiction of the United States”), a separate paper would be required to discuss the blatant denial of their birthright--clearly a glaring case of birthright prejudice aborting birthright citizenship.
For, not content with coining the “legal” oxymoron status of “non-citizen national” of the United States to designate them with, Congress later christened Territorial Filipinos, by law, to be “regarded as if they were aliens,” unbelievably phrased in the classic subjunctive mood, “as if … were,” a supposition contrary to fact and the jurisprudence on their status, not to mention the Citizenship Clause (grammatically read as intended) and natural law as discussed; yet, mandated under the very same law to continue to “owe allegiance to the United States,” thereby creating another incongruous “legal” status for the unwanted, disowned and abandoned outcasts--aliens owing allegiance to the United States.
But several court rulings have consistently held that Territorial Filipinos are not “aliens”; rather, they are “American nationals” at birth; yet, they were never afforded the opportunity to renounce or preserve their nationality at birth, upon the withdrawal of the sovereign at their place of nativity.
Hence, officially, Territorial Filipinos born in the U.S. territory of the Philippine Islands between 1898 and 1946 were stateless at birth, for how can they answer truthfully the question: Country of Birth, if the sovereign at their place of birth disowned them by law, recognizing them merely “as if they were aliens” (intended to place them subject to immigration laws), and the Philippines Islands, their place of birth, became the Republic of the Philippines only upon the withdrawal of U.S. sovereignty in 1946?
Dred Scott II, it seems, came back earlier (1934) in the subtle phraseology of a law, “as if they were aliens” tantamount to “as if they were property”—although a supposition, contrary to fact--and sadly remains to this day to haunt its victims.
In any case, had the Second category been recognized earlier, there would not have been any need for the Congress to invoke legislative “collective naturalization” to confer U.S. citizenship upon persons born or residing in the territories ceded under the 1898 Treaty of Paris--Puerto Ricans and Guamanians, including, of course, Territorial Filipinos even if regarded by law, contrary to fact, “as if they are aliens.”
For, upon the moment of cession, the inhabitants of these territories and those born later there become “subject to the jurisdiction of the United States” and hence qualify under the Second category to be conferred the status of citizens of the United States.
Class of persons "by virtue of natural law." Thus, the Second category includes the following “class of persons” born or residing “within the dominions and within the allegiance” or “those who had been born and resided always in the District of Columbia or in the Territories” and were already declared citizens of the United States” by virtue of natural law”:
01. At Birth (Natural-born): Persons born “subject to the jurisdiction of the United States” or owe allegiance thereto in ceded or annexed territory over which the United States exercises the rights of sovereignty and jurisdiction.
02. After Birth (Naturalization): Persons inhabiting ceded or annexed territory, over which the United States exercises the rights of sovereignty and jurisdiction, who become “subject to the jurisdiction of the United States” (or collectively naturalized) from and after the moment of the formal acquisition or cession by treaty or other means of the territory they were born or residing in, who opt to renounce, rather than preserve, their allegiance to the previous sovereign.
J. A DESIDERATUM IN THE JURISPRUDENCE AND LEGISLATION
In view of all this, it would seem that it was the recognition of a Second category in his draft--“and subject to the jurisdiction thereof”--that Senator Howard felt so confident about, prompting him at the end of his speech to boldly proclaim:
Actually, the “desideratum” (defined as “something considered necessary or highly desirable”) that “settles the great question of citizenship”--or the ideal Citizenship Clause--Senator Howard was aspiring to achieve would have been readily conveyed as precisely as the very words he framed to define the Second category with--
Why? The Second already includes the First category, since “All persons born or naturalized in the United States” (First) are unarguably persons likewise “subject to the jurisdiction of the United States” (Second) or, reciprocally, owe allegiance thereto, particularly those “naturalized,” since they are required to take the Oath of Allegiance before they can be admitted as citizens of the United States.
So, by recognizing this Second category of “all persons subject to the jurisdiction of the United States”--at birth or after birth--lying dormant in suspended animation enclosed between a pair of commas in his draft--the festering contradictions engendered by the current misreading of Senator Howard’s intent (and the 39th Congress, for that matter) to frame the ideal Citizenship Clause, “the desideratum in the jurisprudence and legislation of this country,” may now be hopefully resolved once and for all.
“Removes all doubt as to what persons are or are not citizens.” For, read as intended, Senator Howard’s draft indeed “settles the great question of citizenship” and “removes all doubt as to what persons are or are not citizens,” including, for that matter, the recognition of “State citizenship” in relation to citizenship of the United States.
And he wisely tackled this task by consolidating “every other class of persons,” already recognized at that time in 1866 to be citizens of the United States “by virtue of natural law and national law,” into just one separate Second category, thereby achieving, by “the very language” he crafted to define them with the “desideratum in the jurisprudence and legislation of this country,” to embrace all who belong to the following “class of persons”--apart from those already covered under the First category, privileged under just soli to be born in “the historical division of the land into separate States, some of whom had a glorious history, of which its members were justly proud”:
01. Children of U.S. citizens (mother or father) born abroad already recognized under the Naturalization Act
02. Persons born in ceded territory already recognized to be authorized under the treaty-making power together with the Territorial Clause, or by joint resolution of Congress
03. Inhabitants of ceded territory already recognized to be authorized under the treaty-making power together with the Territorial Clause, or by joint resolution of Congress
04. Aliens naturalized already recognized under the Naturalization Act, although later included in the Clause by the insertion of the words “or naturalized” in Senator Howard’s original draft which subsequently modified its application only to aliens "in the United States"
Being a special class of “persons born,” aboriginal Indians are included, and to repeat Justice Harlan’s words in Elk, “from an after the moment they become subject to the complete jurisdiction of the United States” after birth. In fact, in concluding his dissent in Elk, Justice Harlan justified his argument for a Second category, “in respect of persons [aboriginal Indians] born in this country,” by insisting that:
“Through the whole jurisdiction of the United States ONE PEOPLE.” In the light of all these arguments presented, the true meaning of the Second category in the Citizenship Clause should now be accorded the recognition and significance Senator Howard intended it to convey. For to recall Justice Miller’s words in Slaughterhouse:
Nonetheless, without intending disrespect, it is evident that the Justices of the Court, having overlooked the grammatical reading of the phrase as intended, was struggling to explain a phrase they had woefully misread, which was not without contrary yet equally convincing arguments from justices dissenting. And, as to be expected, they were both faced with contradictions in their explanations and the difficulty of reconciling their somewhat flawed justifications.
Must the legal community continue to misread the phrase “and subject to the jurisdiction thereof” in the Clause as a “qualifying phrase” in order to justify already “recognized exceptions” of the ancient common law rule on birthright “as old as the rule itself” which “could hardly be applicable to more than two or three or four persons”?
The authors are hopeful that this different reading of the Citizenship Clause will heighten interest on that “other class of persons”--the unrecognized, the now-forgotten, disowned and abandoned citizens of the United States--Senator Howard in his sponsorship speech boldly proclaimed that his draft “will include.”
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"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."---------------------------------------------------------------------
-- Citizenship Clause in Section 1 of the Fourteenth Amendment
A. INTRODUCTION
During the same year Congress debated and approved the Citizenship Clause in 1866, Justice Noah Haynes Swayne in U.S. v. Rhodes declared that:
“All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together."
And in Minor v. Happersett (1874) Chief Justice Morrison R. Waite held that:
“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)
This paper argues that allegiance in compensation for protection is the sole determinant to citizenship and the unifier of the two distinct class of citizens--the "natural-born" and the "naturalized"--which marks them off from an "alien" subject to a foreign power.
Allegiance, in fact, becomes the equalizer, for the obligation of allegiance that naturally attaches to the child at birth and creates the 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 after birth is mandated to pledge to be admitted as a "naturalized citizen."
This paper contends that, under the Citizenship Clause of the Fourteenth Amendment--grammatically read as intended, particularly the significance of the pair of commas the author, Senator Jacob Merritt Howard, deliberately enclosed the phrase "and subject to the jurisdiction thereof" with and its reciprocal relation to allegiance--children of U.S. citizens born abroad as well as persons born in ceded territories over which the United States exercises the rights of sovereignty and jurisdiction are "natural-born" citizens of the United States.
An entirely different reading of the Clause to be presented here asserts that the Clause, grammatically read as punctuated, consists instead of a compound subject joined together by the coordinator "and."
Thus, the phrase enclosed between a pair of commas, "and subject to the jurisdiction thereof--now mistakenly viewed judicially under U.S. v. Wong Kim Ark as a "qualifying phrase" of the element preceding it, "All persons born or naturalized in the United States"--is actually the second subject of a compound structure, worded as the elliptical for the complete construction "and [all persons] subject to the jurisdiction of the United States," defining a still-unrecognized category of citizens of the United States.
This long-overlooked reading harmonizes with Senator Howard's intent he underscored during his sponsorship speech that the draft he fashioned 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... 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." (bold added)
So, other than the slave-born who now falls squarely under the category of "All persons born," the question is:
Who belonged to this category of "every other class of persons" already recognized "by virtue of natural law and national law" at that time in1866 to be citizens of the United States that the author himself declared his draft "will include" in order to settle, once and for all, "the great question of citizenship" and remove "all doubt as to what persons are or are not citizens of the United States"?
In short, how should the Citizenship Clause be read correctly as intended to "include every other class of persons" already entitled to U.S. citizenship that the author, Senator Howard, certainly, must have phrased his draft to grammatically convey, if only to justify his contention, bold and sweeping as it is, that the draft he proposed "settles the great question of citizenship" and "removes all doubt as to what persons are or are not citizens of the United States"?
B. ALLEGIANCE OF THE NATURAL-BORN UNDER NATURAL LAW
Allegiance is the fountainhead to U.S. citizenship. Consider--
--Lord Coke, Calvin’s Case or the Case of the Postnati (1608):“And it is to be observed, that it is nec cœlum, nec solum, neither the soil, but ligeantia and obedientia that make the subject born." ("it is neither the climate nor the soil … but allegiance and obedience that make the subject born.")
--Sir William Blackstone, Commentaries on the Laws of England (1765): “ Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.” (http://www.geocities.com/b_rookard/blackstone_allegiance.html)
--Justice Noah Haynes Swayne, U.S. v. Rhodes (1866 or during the same year Congress enacted the Citizenship Clause in Sec. 1 of the Fourteenth), cited in U.S. v. Wong Kim Ark: “All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England.”
--Justice Horace Gray, U.S. v. Wong Kim Ark (1898): “ 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 ... 'To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government'" ... '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.' '
--Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case, 9 Yale J.L. & Human, (1997):“In the view of Sir Edward Coke, one of the judges deciding Calvin's Case, the court's determination was required by the divine law of nature, which was "indeed … the eternal law of the Creator" and "part of the law of England … Calvin’s Case, as this Article will relate, was shaped by the prevalent political theories at that time, including the belief in the authority of divine law … This Article focuses more narrowly upon the rule of status acquisition articulated in Calvin’s Case because the significance of natural law in the articulation of this rule has not been emphasized in the history of birthright citizenship.”(http://www.uniset.ca/naty/maternity/9YJLH73.htm)
Natural Law and the natural-born. Under “natural law” (that Lord Coke equated with “the divine law of nature” or “the eternal law of the Creator”), “birth within the dominions” or “birth within the allegiance” confers the status of “natural-born.” This “belief in the authority of divine law”--became the basis for “the fundamental principle of the common law” on birthright in England and the United States.
Lord Coke’s reliance on “natural law,” or “the divine law of nature,” in determining the status of "natural-born" in Calvin’s Case is, of course, consistent with the convenient justification to the claim of the “Divine Right of Kings” during that historical period (1598), which was “aimed at instilling obedience by explaining why all social ranks were religiously and morally obliged to obey their government” for “kings were answerable only to God and it was therefore sinful for their subjects to resist them.” (http://history.wisc.edu/sommerville/367/367-04.htm)
Native-born and natural-born. The native-born are, of course, persons born "within the dominions" who are also born "within the allegiance." Hence, under Lord Coke's concept of natural law, the native-born are also "natural-born."
Wong Kim Ark cites Chancellor Kent in his Commentaries, titled: "Aliens and Natives"--
"Natives are all persons born within the jurisdiction and allegiance of the United States ... To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government."
Natural law and the Citizenship Clause. In his sponsorship speech, Senator Jacob Merritt Howard, author of the Clause, refers to the citizenship his draft recognizes and confers as “simply declaratory of what I regard as the law of the land already … by virtue of natural law”:
“Mr. HOWARD … This amendment I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.” (Cong. Globe, 39th Congress, 1st Session, p. 2890, 2nd col., May 30, 1866) (bold added)
Allegiance and the Citizenship Clause. Senator Lyman Trumbull, Judiciary Committee Chair and author of the 1866 Civil Rights Act, 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 ... It cannot be said of any Indian who owes allegiance, partial if you please, to some other government that he is 'subject to the jurisdiction of the United States.'" (2894, 1st col., bold added)
Reciprocal obligation. Allegiance is, therefore, also the keyword in the Citizenship Clause. Chief Justice Morrison R. Waite in Minor v. Happersett (1874) held in this regard that:
“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)
Thus, since “allegiance and protection were mutual” (Wong Kim Ark), what Senator Trumbull is actually conveying in his definition of the phrase is that “owing allegiance” is simply the reciprocal obligation "by virtue of natural law" (Senator Howard) in return for the protection extended to persons “subject to the jurisdiction of the United States” and for the attendant rights, privileges and immunities U.S. citizenship guarantees to such persons.
Allegiance and obedience. Allegiance, however, is often confused with obedience. Allegiance, as defined, is the obligation of loyalty owed to one’s country; obedience, the willingness to comply with its laws. The “loyalty” that allegiance obligates denotes an emotional state of mind, feeling or sentiment (love of country), while obedience connotes conduct, something done or performed (obey the laws).
"Within its jurisdiction." In fact, persons who owe obedience to a state may not necessarily owe allegiance thereto, which explains why, an alien, although obligated to owe obedience to the laws of a state while temporarily “within its jurisdiction,” continues to owe allegiance to a foreign state. Blackstone cited above refers to this temporary "obedience" of aliens as "local allegiance."
The penultimate line in Sec. 1 of the Fourteenth (the same section as the Citizenship Clause) declares:
“nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.”
Plyler v. Doe (1982) said:
“Use of the phrase ‘within its jurisdiction’ thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory.”
In a word, the phrase “within its jurisdiction” refers to “anyone, citizen or stranger who is subject to the laws of the State”--and hence, owes obedience to its laws. Evidently, these two terms appearing in the same section 1 of the Fourteenth--“subject to the jurisdiction” and “within its jurisdiction”--are not synonymous.
Subject to the jurisdiction. Senator Howard qualifies the word “jurisdiction”:
“Mr. HOWARD. I concur entirely with the honorable Senator from Illinois [Trumbull] in holding that the word 'jurisdiction,' as here employed, ought to be construed so as to imply the full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States." (2895, 2nd col.)
Persons “subject to the jurisdiction” of--and reciprocally owing allegiance to--a State outwardly express their “loyalty” by owing obedience thereto, for “the test of loyalty is conduct rather than intensity of feeling.”
Owing allegiance is, therefore, inseparable with owing obedience, which is precisely what Calvin’s Case proclaimed, quoted earlier here:
“Neither the climate nor the soil but obedience and allegiance that makes the subject born.”
Thus, automatically and reciprocally in return, the “natural born” (including the children of undocumented aliens), unless they voluntarily renounce their allegiance to the United States, are obligated to, among others:
--“support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic”
--“bear arms on behalf of the United States when required by the law” or
--“perform noncombatant service in the Armed Forces of the United States when required by the law”
--“perform work of national importance under civilian direction when required by the law.”
Anchor babies. Unfortunately, it is this reciprocal duty and obligation of obedience and allegiance to the United States that birthright equally (harshly, to some) imposes automatically upon “all persons born in the United States”--conferred citizenship likewise automatically “by virtue of natural law”--that seems to have been conveniently ignored and forgotten in the controversy over the so-called “anchor babies” of undocumented aliens, which is unfairly focused more on the magnitude of the funds Government incurs to subsidize the benefits and privileges persons so born are entitled to enjoy.
It is as if there is a price to be paid by the “natural born” for the reciprocal duty of owing obedience and allegiance and of sacrificing life and fortune for love of country.
C. "OR NATURALIZED".
Note at the outset 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. (2897, 3rd col.)
Rather, the words were inserted a full week later on June 8th "after the word 'born,'" upon motion of Senator William Pitt Fessenden, Chair of the powerful Joint Committee on Reconstruction, and "agreed to," without any debate, "by general consent" (3040, 2nd col., bold added):
"Mr. FESSENDEN. I desire to insert in the first sentence, by general consent, after the word 'born,' the words, 'or naturalized,' so that the clause will read:
"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.
"Mr. HOWARD. There is no objection to that.
"The amendment was agreed to."
Justice Horace Gray in U.S. v. Wong Kim Ark (1898) refers to this omission:
“The fourteenth amendment of the constitution, as originally framed by the house of representatives, lacked the opening sentence. When it came before the senate in May, 1866, Mr. Howard, of Michigan, moved to amend by prefixing the sentence in its present form (less the words 'or naturalized').” (bold added)
So, sans the words “or naturalized,” Senator Howard's original draft that was debated and agreed to on May 30, 1866 simply reads (2890, 2nd col.):
"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."
NOTE: The insertion of the words “or naturalized” may have contributed to the grammatical confusion in the reading of the Clause as ratified, since the conjunction “or” in the inserted words "or naturalized" adds another conjunction in the subject of the Clause, the second to the author’s original conjunction “and.”
NOTE: Unless otherwise indicated, citations from the Congressional Globe, 39th Congress, 1st Session, during the debate to be quoted in this paper are based on the discussion of Senator Howard’s original draft without the words “or naturalized,” particularly pages 2890-2897, May 30, 1866.
D. QUALIFYING PHRASE
Justice Horace Gray in U.S. v. Wong Kim Ark (1898) read the phrase, "subject to the jurisdiction thereof," as a qualifier of the line preceding it, to the extent that, "All persons born or naturalized in the United States" must--at the moment of birth or naturalization--be “subject to the jurisdiction thereof":
“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 two classes of cases--children born of alien enemies in hostile occupation and children born of diplomatic representatives of a foreign state, both of which as has already been shown by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.” (bold added)
"Recognized exceptions." But the author himself, Senator Howard, in his sponsorship speech already declared that his draft “will not, of course, include” the “recognized exceptions” Justice Gray speaks of.
“Mr. HOWARD ... This amendment I have offered … will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States." (2890, 2nd col., bold added)
To highlight this point, underscore his use of the adverb “of course,” meaning “as might be expected” or “without any doubt.”
Having said that, why would Senator Howard still provide (six words in all, at that) for such redundant, superfluous “exceptions” already “recognized,” in the words of Justice Gray himself, “from the time of the first settlement of the English colonies in America”?
And this exclusion even extends to the Aboriginal Indians:
“Mr. HOWARD … Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to the full and complete jurisdiction of the United States …" (2895, 2nd col., bold added)"Was there any necessity of excepting them?" In fact, providing for what Justice Gray refers to as the “recognized exceptions”--exceptions, mind you, “as old as the birthright rule itself”--would be open to misinterpretation later. Thus, as to be expected, Chief Justice Melville Fuller (Justice John Marshall Harlan concurring) countered, dissenting:
“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 …
"They do not owe allegiance otherwise than to their own governments, and their children cannot be regarded as born within any other …
"If the act of 1866 had not contained the words 'and not subject to any foreign power,' the children neither of public ministers nor of aliens in territory in hostile occupation would have been included within its terms on any proper construction, for their birth would not have subjected them to ties of allegiance, whether local and temporary, or general and permanent.
"There was no necessity as to them for the insertion of the words, although they were embraced by them."
Children born abroad "were and are aliens." Chief Justice Fuller continues:
“Thus the fourteenth amendment is held to be merely declaratory, except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond the control of the legislative power.
“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)
Chief Justice Fuller later reiterates his view:
“In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this government. If not, and if the correct view is that they were aliens, but collectively naturalized under the acts of congress which recognized them as natural born, then those born since the fourteenth amendment 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, under Wong Kim Ark, the children of U.S. citizens born abroad since 1868 “were and are aliens”; sadly, he adds, these foreign-born could only be “naturalized in the United States”--and could not possibly be “naturalized” if they happen to be somewhere else at the time of naturalization--with the rather grim caveat that “no statutory provision to the contrary is of any force or effect.”
Chief Justice Fuller, of course, was merely reiterating what Justice Samuel Miller earlier said in The Slaughter House Cases (1873):
“The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States.” (bold added)
The stark reality of excluding "the children of aliens" Chief Justice Fuller raised as the more reasonable ground behind the inclusion of the phrase--and its reciprocal relation to allegiance--to account for "exceptions" is no doubt the one seemingly insurmountable consequence of the Wong Kim Ark reading that needs to be convincingly explained, since the reading of the phrase to account for already "recognized exceptions" that can later on be stretched to even include "the children of aliens" or of "citizens or subjects of foreign states" would ran counter to the basic common law principle behind the jus soli rule, to the effect that the status of the child does not depend upon parentage but upon the place of birth alone.
Ineligible to the presidency. What really bothered Chief Justice Fuller was the manner in which foreign-born children of American parents were shabbily treated as “aliens,” when he compared them with “children who are aliens by descent, but born on our soil [who] are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court” and “eligible to the presidency, while children of our citizens, born abroad, were not.”
Justice Gray's majority opinion in Wong Kim Ark added a more disturbing note:
“In 1802, all former acts [of 1790 and of 1795] were repealed, and the provisions concerning children of citizens were re-enacted in this form ‘… the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.' Act April 14, 1802, c. 28, 4 (2 Stat. 155) …
“But the provision concerning foreign-born children, being expressly limited to the children of persons who then were or had been citizens, clearly did not include foreign-born children of any person who became a citizen since its enactment. 2 Kent, Comm. 52, 53; Binney, Alienigenae, 20, 25; 2 Am. Law Reg. 203, 205. Mr. Binney's paper, as he states in his preface, was printed by him in the hope that congress might supply this defect in our law. (bold added)
”It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad, during that period, of American parents who had not become citizens of the United States before the act of 1802; and that the act of 1855, like every other act of congress upon the subject, has, by express proviso, restricted the right of citizenship, thereby conferred upon foreign-born children of American citizens, to those children themselves, unless they became residents of the United States.”
So, to Justice Gray, “during the half century intervening between 1802 and 1855,” foreign-born children of American parents who had not become U.S. citizens before the act of 1802 would be regarded as aliens.
This defect in our law. Note that “this defect in our law,” with “no legislation whatever for the citizenship of children born abroad” Justice Gray refers to that lasted well over half a century, was supplied by law only in 1855, and would still have been fresh in the minds of the 39th Congress eleven years later in 1866, since Senator Howard, in his sponsorship speech, underscored that the draft he proposed--
Mr. HOWARD. "... 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.” (2890, 2nd col., bold added)
So, is the phraseology in Senator Howard's draft of the Clause the "desideratum" intended to correct "this defect in our law”--which allows a mere act of congress to restrict "the right of citizenship" to children of U.S. citizens born abroad--from ever recurring?
"The law does not concern itself with trifles." A week before the Clause was debated, Senator Benjamin Franklin Wade proposed to insert a similar line, which read:
"Mr. WADE ... persons born in the United States or naturalized by the laws thereof.” (2769, 1st col., May 23, 1866)
And in reply to the question Senator Fessenden posed--“Suppose a person is born here of parents from abroad temporarily in this country”--Senator Wade argued:
“Mr. WADE. The Senator says a person may be born here, and not be a citizen. I know that is so in one instance, in the case of foreign ministers who reside ‘near’ the United States, in the diplomatic language. By a fiction of law, such persons are not supposed to be residing here, and under that fiction of law, their children would not be citizens of the United States, although born in Washington. I agree to that, but my answer to the suggestion is that that is a simple matter, for it could hardly be applicable to more than two or three or four persons; and it would be best not to alter the law for that case. I will let it come under that well-known maxim of the law, de minimis lex non curat, It would make no difference in the result. I think it is better to put this question beyond all doubt and all cavil by a very simple process.” (2769, 1st col., May 23, 1866)The Latin maxim “de minimis lex non curat” means: “The law does not concern itself with trifles.”
A misplaced concern with “trifles” that “could hardly be applicable to more than two or three or four persons” was obviously what Chief Justice Fuller also had in mind when he said what was earlier cited above in his Wong Kim Ark dissent: “There was no necessity as to them for the insertion of the words, although they were embraced by them."
"Born subject to the jurisdiction of the United States." Justice Harlan (Justice William Woods concurring) argued a different view which I regard as compelling, even in dissent, in response to the majority holding in Elk v. Wilkins (1884) that: “Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof.”
“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)
So, mark this: To Justice Harlan, dissenting, persons acquire “the rights of national citizenship” under the Clause not only at birth, “born in the United States”; but also, more importantly, “from and after the moment they become subject to the complete jurisdiction of the United States,” meaning after birth. “in respect of persons born in this country.”
In a word, the Clause is not just about jus soli, after all; for what Justice Harlan is saying here is that the Clause should be read as likewise conferring citizenship upon persons who “become subject to the complete jurisdiction of the United States” after birth.
To buttress his dissent, Justice Harlan cited the remarks of Judiciary Committee Chair Senator Trumbull, during the debate (alluding to aboriginal Indians):
“Mr. TRUMBULL … It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens” (2893, 2nd col.) … “We propose to make citizens of those brought under our jurisdiction in that way." (2893, 3rd col.)
The phrases cited, “persons who come completely within our jurisdiction” and “those brought under our jurisdiction,” obviously do not refer to persons at the time of birth; rather, Senator Trumbull’s remarks no doubt point to persons already born, “who come completely within,” or are “brought under,” the jurisdiction of the United States after birth.
A monumental reading error. If Chief Justice Fuller (with Justice Harlan concurring) disagrees with the Wong Kim Ark reading that the phrase “and subject to the jurisdiction thereof” refers to “the recognized exceptions” and Justice Harlan in Elk (with Justice Woods concurring) asserts that the Clause itself confers citizenship not only at birth but also after birth, how is the phrase “subject to the jurisdiction thereof” to be read?
Is the Wong Kim Ark reading that views the phrase “and subject to the jurisdiction thereof” as a qualifier of the line preceding it, “All persons born,” a monumental reading error?
E. PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES
Immediately after the author’s sponsorship speech, Senator James Doolittle proposed "to amend” Senator Howard’s draft “by inserting after the word 'thereof' the words 'excluding Indians not taxed'" (2890, 3rd col.).
In fact, it was the ensuing discussion of Senator Doolittle’s proposal on “excluding Indians” that the eight 3-column pages (2890-2897) in the Congressional Globe of the debate were devoted solely to.
Fearful of the consequences of "the very language" Senator Howard used, Senator Doolittle warned:
"Mr. DOOLITTLE ... My friend from Michigan will not contend that an Indian can be taxed if he is not subject to the State or to the United States; and yet if they are subject to the jurisdiction of the United States they are regarded by the very language of this amendment to be citizens … Why, sir, what does it mean when you say that a people are subject to the jurisdiction of the United States." (2896, 1st col., bold added)
Remarkably, at page 2897, 1st col., 2nd par., as the debate was about to close that day, Senator Doolittle directly quoted (shown printed in quotation marks in the scanned original transcript) how “the language” of the phrase was understood to mean, and the reason behind why he had proposed to amend it:
"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 Senator Doolittle quoted as "the language which he [Senator Howard, the author] uses":
"All persons subject to the jurisdiction of the United States"
And to underscore Senator Doolittle's persistence concerning the "very language" the author, Senator Howard, used, compare his other remarks cited earlier above (2896, 1st col., bold added):
"... and yet if they are subject to the jurisdiction of the United States they are regarded by the very language of this amendment to be citizens."
"Why, sir, what does it mean when you say that a people are subject to the jurisdiction of the United States."
The Congressional Globe transcripts of the debate will show that “the language” Senator Doolittle directly quoted was accepted, unchallenged; Senator Howard, in fact, in his reply to Senator Doolittle, did not object to the citation nor offer any correction.
Surprisingly, Senator Doolittle’s direct quotation of how the phrase was understood to be employed in the Clause has never been accorded the critical attention and widespread scrutiny it deserves and remains to this day lamentably unnoticed.
F. GRAMMATICAL ANALYSIS
Now why would Senator Doolittle add the words “all persons” to the phrase “subject to the jurisdiction thereof” in Senator Howard’s draft? Was the phrase intended to be read in this way?
Shorn of all modifiers, while leaving punctuation marks intact, Senator Howard’s draft (originally, without the words "or naturalized") would have simply read:
Persons born, and subject to, are citizens.
Let's analyze its construction.
Non-restrictive element is set off by a pair of commas. Note that the phrase “and subject to the jurisdiction thereof” is enclosed between a pair of commas.
The relevant punctuation rule in elementary English grammar says: “if it can be omitted,” which means that the element is “non-restrictive, it can be set off by commas”; if not, which means that the element is “restrictive, it should not be set off by the comma.”
In placing the first comma before the coordinator “and,” the rule laid down in The Elements of Style by Strunk (1918) applies: “If a parenthetic [or non-restrictive] expression is preceded by a conjunction,” the rule is “place the first comma before the conjunction, not after it.”
And, in the case of the second comma placed before the linking verb “are,” “Grammar English's Famous Rule of Punctuation” is: “Never use only one comma between a subject and its verb.”
So, parsing it consistent with these rules: Were the commas Senator Howard, the author, inserted between the words, "and subject to the jurisdiction thereof," intended to identify and distinguish it as a non-restrictive phrase, precisely to avoid the confusion of being mistaken later as “restrictive” or a modifier (read as such under Wong Kim Ark) of the element preceding it, "All persons born in the United States"?
Coordinating conjunction “and" creates a compound. Then there is the coordinating conjunction “and,” which, as defined, connects “words, phrases or clauses that are of equal importance or have the same grammatical structure within a sentence.” In particular, a “compound subject” is defined as “two or more noun phrases (and their modifiers, if any) joined together with a coordinating conjunction.”
So, by placing the first comma before the coordinator “and” and inserting the second before the linking verb “are,” effectively enclosing the phrase “and subject to the jurisdiction thereof,” is Senator Howard conveying, grammatically, the intention that his draft consists of a compound subject “that are of equal importance” conjoined by the coordinator “and,” with a common predicate, depicted as--
First subject: “All persons born in the United States,” and
Second subject: “subject to the jurisdiction thereof”
Second subject of the compound is an elliptical. But why is the main noun (or pronoun) in the second subject missing? There is actually none to speak of. But since the phrase, “and subject to the jurisdiction thereof,” is the second of a compound subject; then, it is doubtless structured as an elliptical, defined as “grammatical structures that omit words that they would usually include.” The “missing subject of the elliptical clause should always be the same as the explicit subject of the main clause.”
Having been joined together by the coordinating conjunction “and,” the compound subject of the Clause is in a “coordinate configuration”; hence, the unexpressed element, or the main noun “missing,” in one subject of the compound is meant to be understood, rather than to be stated or repeated--recoverable or inferable from the context of the other subject it is coordinate with.
The “missing” main noun between the word “and” and the phrase “subject to” in the second subject, “and subject to the jurisdiction thereof”--Senator Howard enclosed within a pair of commas, with the first comma placed before the coordinator “and”--should thus be the same as the “explicit” main noun of the first subject, “All persons born in the United States,” which is “All persons,” acting as the antecedent, common to both the two subjects in “coordinate configuration” in the compound.
So, since the grammatical subject of the Clause is structured as a compound in a “coordinate configuration,” is the second subject, "and subject to the jurisdiction thereof,” the elliptical for the complete construction, "and [all persons] subject to the jurisdiction thereof"--with the main noun phrase "all persons" in the second, common to both, omitted or understood rather than stated or repeated for brevity or style and inferable from "All persons" in the first subject it is coordinate with?
The other elliptical. As if to emphasize the author’s reliance on the grammatical device of an elliptical (to those, perhaps, who may be reluctant to concede its use later) as the means to convey his intent in describing a compound in “coordinate configuration”; there is this second elliptical Senator Howard employed in structuring the other compound in the Clause. And this is the compound object of the linking verb “are”
"citizens of the United States and [citizens] of the State wherein they reside."
Here, the Second object, "citizens," common to both, and similarly joined to the First by the coordinator “and,” is likewise omitted rather than stated or repeated for brevity or style and inferable from the same object, "citizens," in the First it is coordinate with.
Another elliptical in Sec. 1 of the Fourteenth. In fact, the Second negative in the penultimate line in Sec. 1 of the Fourteenth (the same section as the Clause) is likewise structured as an elliptical, with the omission of the phrase "shall any State" (auxiliary verb and subject inverted), for brevity or style and inferable from that in the First negative also introduced by the conjunction "nor"--"nor shall any state deprive ...":
“nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.” (bold added)
Senator Howard's intent. Thus, grammatically read as intended by the author, Senator Howard, the complete construction of the Citizenship Clause (consisting of a compound subject and a common predicate) that the Senate debated and approved on May 30, 1866 (without the phrase “or naturalized” which was inserted later on June 8th) is:
“All persons born in the United States, and [all persons] subject to the jurisdiction thereof, are citizens of the United States and [citizens] of the State wherein they reside.”
First subject– “All persons born in the United States”
Second subject – “[All persons] subject to the jurisdiction thereof”
NOTE: Senator Howard could have easily avoided using the elliptical structure for the second subject of the compound and inserting the comma before the coordinator grammatically required to allow the omission of words, by instead availing of the applicable plural pronoun, “those,” which is the antecedent of the “explicit” main noun phrase in the subject of the first, “All persons,” to read: “and those subject to the jurisdiction thereof.” But the word, “those,” is a vague indefinite pronoun, which Senator Howard understandably refrained from employing, since indefinite pronouns are deemed inappropriate in formal or legal writing.
NOTE: The punctuation mark Senator Howard employed in the grammatical subject of his draft allowing the use of the elliptical to avoid a “repeated subject” is what Robert Brittain [sic] in Correct Punctuation (1997) identifies as a “comma-plus-coordinating-conjunction (…and…).” He defines it as “a single mark composed of two symbols, one which we normally think of as a punctuation symbol and the other as a word symbol” and can be used “if you only have one subject but want to tell the reader two different things about that subject,“ yet “dislike the effect of a repeated subject.”
NOTE: A “gapping comma” is meant “to show that one or more words have been left out when the missing words would simply repeat the words already used earlier in the same sentence,” and It “indicates that you have decided not to repeat some words which have already occurred in the sentence.”
NOTE: An innocuous comma is often crucial--even fatal. “Sir Roger Casement was 'hanged by a comma.' This British diplomat was charged with treason during WW I. His trial centered on the question; 'Did the law apply to acts of treason performed abroad?' The answer depended on whether or not there were a pair of commas in the relevant section of the law. It was ruled there were, and Casement was hanged.” (From a book review of Lynn Truss, Shoots, Eats & Leaves, 2004)
Comma omitted before the conjunction “and” in 1866 Civil Rights Act. Assuredly, this trifle concern for a pair of commas enclosing the phrase “and subject to the jurisdiction thereof” is not just nit-picking.
A similar clause in the 1866 Civil Rights Act (which was enacted only two months earlier by the same 39th Congress) omits the pair of commas, particularly the comma placed before the coordinator “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."
NOTE: Text quoted above is taken from the scanned printed original copy of S. 61, Civil Rights Act, Bills and Resolutions, Senate, 39th Congress, 1st Session, March 13, 1866, now 14 Stat. 27-30, April 9, 1866.
Compare the above-cited provision in the Civil Rights Act with Senator Howard's draft of the Citizenship Cause below (without the words "or naturalized") with the phrase "and subject to the jurisdiction thereof" enclosed between a pair of commas:
“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.”
By omitting the comma before the coordinator “and,” the author of the Civil Rights Act (Senator Lyman Trumbull) is conveying the intention that the phrase "not subject to any foreign power" is "restrictive," which means that, grammatically understood, it is intended to modify, qualify or restrict the phrase preceding it, "All persons born in the United States."
And this, in fact, was how it was read and understood to mean, even to this day--as a “qualifying phrase,” owing, to repeat, to the absence of a crucial comma before the coordinator "and,"
But why did Wong Kim Ark read a phrase that is enclosed between a pair of commas likewise as a "qualifying phrase" of the element preceding it?
This matter, of course, should be left to grammarians to resolve.
However, since it was the same 39th Congress and its Committee on Style that edited these similarly-phrased provisions written barely two months apart, would they have applied the same elementary English grammar rule selectively, arbitrarily?
G. "EVERY OTHER CLASS OF PERSONS"
Senator Howard continues with his sponsorship speech:
“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 … This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but 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.” (2890, 2nd col., bold added)
After identifying the exceptions to “persons born in the United States” that his draft “will not, of course, include,” Senator Howard declares that his draft “will include every other class of persons.”
"Every other." The phrase “every other” suggests that his draft “will include” all of several “class of persons,” to the same extent as a similar phrase used in Art. IV, Sec.1 is intended to convey:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
NOTE: Compare the phrases “every other class” with “every other State.”
"Settles the great question of citizenship" and "removes all doubt as to what persons are or are not citizens." If, indeed as claimed, the draft Senator Howard proposed “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States [which] has long been a desideratum in the jurisprudence and legislation of this country”; then, certainly, he would have had written his draft to be so definitively worded as to convey an all-encompassing, comprehensive definition of citizenship of the United States to include "all persons," that is, “every other class of persons” already regarded, or to be recognized, as citizens, and not only those “born in the United States,” to achieve his rather ambitious quest, bold and sweeping as it is, of addressing once and for all “the great question of citizenship” by removing “all doubt as to what persons are or are not citizens.”
So, is the Wong Kim Ark view which reads the phrase enclosed between commas, "and subject to the jurisdiction thereof," as a mere qualifier of the element preceding it, "All persons born or naturalized in the United States," consistent with the author's declaration that his draft "settles the great question of citizenship" and "removes all doubt as to what persons are or are not citizens"?
"By virtue of natural law and national law." Besides, if Senator Howard’s draft is really what he proclaimed it to be anchored upon, which is that, it “is simply declaratory of what I regard as the law of the land already … by virtue of natural law and national law”; then, accordingly, the category of “every other class of persons” Senator Howard refers to in his speech must be read to include all of several class of persons already recognized “by virtue of natural law,” or otherwise declared “by virtue of national law,” to be citizens of the United States at the time he wrote the draft in 1866--and not just the privileged class of jus soli, even assuming that there still were, at that time in 1866, several “other class of persons” born in the United States, already declared to be citizens “by virtue of natural law and national law,” which, as argued above, is highly unlikely.
The IDEAL Citizenship Clause?
Viewing his speech as words that amplify the author’s intent, what all these niceties (“settles the great question of citizenship” and “removes all doubt”) actually imply is that the amendment to the Constitution that Senator Howard proposed in his draft was intended to define what the ideal Citizenship Clause ought to be (“simply declaratory of what I regard as the law of the land already … by virtue of natural law and national law”)--a Clause establishing “a clear and comprehensive definition of citizenship” that recognizes in no uncertain terms "all persons" (“will include every other class of persons”) to be regarded as citizens of the United States.
"Clear and comprehensive definition of citizenship." Justice Hugo Black, with whom Justice William O. Douglas and Justice Thurgood Marshall join, dissenting in Rogers v. Bellei (1971) argues the same observation on a “comprehensive definition” of citizenship that the Clause was intended to confer, citing several sources:
“… In an opinion written shortly after the Fourteenth Amendment was ratified, the Court stated that one of the primary purposes of the Citizenship Clause was ‘to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State.’ Slaughter-House Cases, 16 Wall. 36, 73 (1873). In his study, The Adoption of the Fourteenth Amendment, Professor Flack similarly concluded that the Citizenship Clause ‘put beyond doubt and cavil in the original law, who were citizens of the United States.’ H. Flack, The Adoption of the Fourteenth Amendment 89 (1908). And in Afroyim both majority and dissenting Justices appear to have agreed on the basic proposition that the scope of the Citizenship Clause, whatever its effect, did reach all citizens. The opinion of the Court in Afroyim described the Citizenship Clause as ‘calculated completely to control the status of citizenship.’ And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a ‘declaration of the classes of individuals to whom citizenship initially attaches.’”
In fact, there can only be one class of “persons born in the United States,” since birthright under jus soli is a unique status vested at birth, upon the indelible circumstance of place of birth, irrespective of parentage, race, color, creed or purse--anchor babies included.
So, if those “born in the United States” (the slave-born included) represent only one class of persons, while the category of “every other class of persons” Senator Howard said his draft “will include” implies that there are several others to reckon with; who, pray tell, belongs to this category of “every other class of persons” similarly declared or recognized “by virtue of natural law and national law” to be citizens of the United States at the time the Clause was debated in 1866?
Where are these "other class of persons" now? Where have they all gone?
Non-citizen U.S. nationals owing permanent allegiance. As it is now, there is a statutory class of persons declared as owing “permanent allegiance to the United States” that the law merely regards as “non-citizen nationals.”
Under the United States Code at Chapter 12, Sub-chapter 1, Sec. 1101 (a), owing allegiance to the United States does not guarantee American citizenship:
“(3) The term ‘national’ means a person owing permanent allegiance to a state.
“(22) 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.”
Hence, aside from the constitutionally-recognized status of “citizen” and “alien,” the U.S. Code coined in 1954 an additional legal status, “national of the United States,” a person who “owes permanent allegiance to the United States” but may not be recognized as a citizen of the United States.
NOTE: The term "National" was "originally intended to account for the inhabitants of certain territories--territories said to 'belong to the United States,' including the territories acquired from Spain during the Spanish-American War, namely the Philippines, Guam, and Puerto Rico--in the early twentieth century who were not granted U.S. citizenship, 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." (see Charles Gordon et al., Immigration law and procedure, Sec. 91.01[3][b], at 91-5, rev. ed. 1997, cited in Marquez-Almanzar v. INS, 2003).
NOTE: The status of "National" 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 or otherwise suggest that they might aspire to equality under the American constitutional system." (José A. Cabranes, Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans, 127 U. Pa. L. Rev. 391, 396-97 n.12 , 1978, cited in Valmonte v. INS, 1998 WL 54575, 2nc cir., 11 Feb 1998).
NOTE: For an extended discussion regarding the status of "National," see Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire, 161 (2006)
But would Senator Howard have agreed to a provision of law that openly mocks the constitutional significance of allegiance in the Clause he drafted, by brashly denying citizenship to a defined class of persons who “owes permanent allegiance to the United States” at that?
"Beyond the legislative power." In fact, during the debate, Senator Howard highlighted the importance of this “great question of citizenship” that his draft was intended to resolve, by bluntly reminding his colleagues that the sanctity of citizenship conferred upon “all persons” recognized and qualified would now be finally enshrined in the tabernacle of the Constitution, well beyond the tentacles of 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.” (p. 2896, 3rd col., bold added)
Justice Hugo Black in Afroyim v. Rusk (1967) footnoted Senator Howard's remarks above in saying:
“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.” (bold added)
H. THE AUTHOR'S DRAFT RECOGNIZES A SECOND CATEGORY
In this light, did Senator Doolittle (“all persons subject to the jurisdiction of the United States”) and Justice Harlan (persons acquire “the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States”) read the phrase (“and subject to the jurisdiction thereof”) to mean what Senator Howard may have intended it to convey--the recognition of a Second category of “national citizenship,” other than the category of “all persons born in the United States”?
Of course, bound by stare decisis, the legal community is clueless. Fact is, the “qualifying phrase” view is now the accepted gospel truth; thus, to claim or even suggest that a Second category may exist at all is unthinkable (even idiotic?).
But this is not just about the various legislative proposals to restrict birthright that the “qualifying phrase” reading is now relied on to justify; for this also involves a far more important issue--the possible denial of the Right to Citizenship of a still-unrecognized, over-looked category of now-disowned citizens of the United States.
Certainly, it deserves to be examined more thoroughly, for in the words of Chief Justice Earl Warren, dissenting in Perez v. Brownell (1958):
"Citizenship is man's basic right for it is nothing less than the right to have rights."
So, grammatically analyzed, to repeat: Is the non-restrictive, elliptical phrase defining the Second of the compound subject of the Clause, "and subject to the jurisdiction thereof," meant to be viewed as recognizing a Second category
If so, then, the original draft Senator Howard proposed that the Senate “agreed to” on May 30, 1866 was intended to be read as recognizing two categories of citizens of the United States:
“All persons born in the United States, and [all persons] subject to the jurisdiction thereof, are citizens of the United States and [citizens] of the State wherein they reside.”
First category – All persons born in the United States
Second category – All persons subject to the jurisdiction of the United States
And upon its amendment on June 8th to include the words “or naturalized” after the word “born” a third category is inserted:
Third category – All persons naturalized in the United States
No territorial limitation. As distinguished from the First, “born in the United States”--which identifies a place, “in the United States,” however this phrase may be defined by law to mean--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.
Nor does the Second imply, any such country, state, district or territory Congress or the Court may define as "foreign" or “appurtenant and belonging to the United States, but not a part of the United States” (enunciated under the “occult” doctrine of “incorporated territory” in the Insular Cases), “organized,” “unincorporated,” “ceded,” “annexed,” “contiguous,” “insular,” “occupied,” or any other synonymous term, which is to be regarded as the determinant place of birth or residence in order to qualify.
Rather, irrespective of territory, district, place or country, it is the Sanctity of the Person and the circumstance or privilege of being “subject to the jurisdiction of the United States,” and to use Justice Harlan’s words, “from and after the moment,” that alone matters to qualify under the Second category as a citizen of the United States.
Confers citizenship at birth and after birth. Add to that, the Second category confers U.S. citizenship, not only upon persons born “subject to the jurisdiction of the United States” or “from and after the moment” at birth, as in the First (persons “born”), but also, as Justice Harlan already asserted in Elk, “from and after the moment they become subject to the complete jurisdiction of the United States” or after birth, meaning naturalization.
Senator Howard on naturalization. The United States Code at Sec. 1101 (a), Chapter 12, Sub-chapter 1 defines the term “naturalization”:
“(23) The term ‘naturalization’ means the conferring of nationality of a state upon a person after birth, by any means whatsoever.”
Underscore the limiting keywords “after birth.” Naturalization, therefore, can only be conferred after birth, “by any means whatsoever”; but no person can be “naturalized” at birth, since nationality is created or attaches at birth.
Insofar as naturalization or the acquisition of citizenship after birth is concerned, the most telling argument during the debate for the recognition of a Second category comes from remarks of the author, Senator Howard, no less.
For in the course of his vigorous objection to Senator Doolittle’s proposal to insert the words, “excluding Indians not taxed,” to his draft, Senator Howard mentions “naturalization”--the status that can only be conferred after birth--several times, in this manner:
“Mr. HOWARD … Does he suppose to leave the amendment 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.” (2895, 2nd col., bold added)Senator Howard continues:
“Mr. HOWARD … The great objection, therefore, to the amendment 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.” (2895, 2nd col., bold added)
Note that Senator Howard here speaks of "the whole Indian population"--which obviously refers to aboriginal Indians already born--to be naturalized (after birth) "in the shape of the imposition of a tax."
Senator Howard adds:
“Mr. HOWARD … But the great objection to the amendment 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.” (2895, 3rd col., bold added)
So, if, as claimed under Wong Kim Ark, the phrase “and subject to the jurisdiction thereof” merely acts as a “qualifying phrase” to “All persons born” or at birth--which is proposed to be qualified further by Senator Doolittle’s amendment, “excluding Indians not taxed”--why would Senator Howard, certainly aware that naturalization applies only to persons after birth, contradict himself by arguing that Senator 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,” of persons already born?
In other words, if “naturalization” can only be conferred after birth, why would Senator Howard call as “naturalization” the status conferred at birth--that is, “All persons born in the United States”--who, as claimed under Wong Kim Ark, must at the moment of their birth, be (1) “subject to the jurisdiction thereof” and, had Senator Doolittle’s amendment been accepted, (2) “excluding Indians not taxed”?
And the reason 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,” but as a distinct Second category of citizens of the United States at birth or after birth.
In short, Senator Doolittle’s proposal was directed at qualifying the Second category, to the effect that “all persons subject to the jurisdiction of the United States” must exclude “Indians not taxed.”
Thus, under Senator Doolittle's amendment, the moment a State “imposes taxes upon Indian tribes within her limits,” Indians who are now “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 through the act of taxation, “whenever,” in the words of Senator Howard, “the States saw it fit to impose a tax upon the Indians.”
Senator Howard naturally objected:
“Mr. HOWARD … Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to the full and complete jurisdiction of the United States … The Government of the United States have always regarded and treated the Indian tribes within our limits as foreign Powers, so far as the treaty-making power is concerned, and so far especially as the commercial power is concerned, for in the very Constitution itself there is a provision that Congress shall have power to regulate commerce, not only with foreign nations and among the States, but also with the Indian tribes. That clause, in my judgment presents a full and complete recognition of the national character of the Indian tribes, the same character in which they have been recognized ever since the discovery of the continent and its occupation by civilized men … Our legislation has always recognized them as sovereign Powers.” (2895, 2nd-3rd cols., bold added)
In view of all these, there is, after all, a Second category of citizens of the United States--“all persons subject to the jurisdiction of the United States,” which is the complete construction for the elliptical Senator Howard employed in his draft, “subject to the jurisdiction thereof,” that Senator Doolittle directly quoted, and Justice Harlan, dissenting in Elk, suggested, “in respect of persons born.”
I. WHO WERE THEY AND WHERE ARE THEY NOW?
Senator Howard in his sponsorship speech:
"Mr. HOWARD ...This amendment which I have offered is simply declaratory of what I regard as the law of the land already that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States." (bold added)
1. "BY VIRTUE OF NATIONAL LAW”
Senator Howard posits that the draft he offered “is simply declaratory of what I regard as the law of the land already …… national law.”
But were there “other class of persons” already recognized and declared “by virtue of … national law” to be citizens of the United States at the time the Clause was debated in 1866?
--Civil Rights Act of 1866: “All persons born." As already discussed, the same 39th Congress enacted only a two months earlier a “national law,” the Civil Rights Act of 1866. But the citizenship provision in that Act was what Senator Howard was proposing to revise in his draft which, in fact, was the subject of the debate ongoing.
Even then, the Act similarly declares what the Clause itself also proclaims: “All persons born.”
--Naturalization Act: Children of U.S. citizens “born abroad.” At that time in 1866, a “national law,” the Naturalization Act of 1855 (repealing the first in 1790 and the later amendments in 1795 and 1802), provided that:
by virtue of
“the children of citizens of the United States born out of the limits and jurisdiction of the United States shall be considered as citizens of the United States.”
Under the Second category of the Senator Howard's draft, children of U.S. citizens born abroad are now constitutionally "natural-born"--and not just statutorily to be "considered as"--citizens of the United States
--Naturalization Act: Aliens “naturalized.” To recall, Senator Howard’s draft--that was debated and approved by the Senate--did not include the words “or naturalized.” But his omission of these words does not necessarily imply that aliens “naturalized” are excluded from among those who belong to the class of persons who are not “born in the United States” Senator Howard describes as “every other class of persons” to be recognized likewise as “citizens of the United States.”
Rather, aliens “naturalized” certainly qualify to be included; for, as already cited earlier here, the Naturalization Act--a “national law” in force in 1866 Senator Howard speaks of--already stipulated:
“That any alien, being a free white person, may be admitted to become a citizen of the United States.”
This obviously explains the reason why Senator Howard omitted the words “or naturalized” in his draft, for its inclusion would have provoked an uncalled-for superfluity, since aliens applying for naturalization to be admitted as citizens of the United States are actually petitioning to be placed “subject to the jurisdiction of the United States” and, reciprocally, to pledge allegiance thereto--which precisely falls under the Second category of Senator Howard’s draft.
Class of persons "by virtue of national law." Thus, the Second category includes the following “class of persons” that were already declared or recognized to be citizens of the United States under the Naturalization Act in force in 1866 or, in Senator Howard’s words ”by virtue of national law”:
01. At Birth (Natural-born): Children of U.S. citizens (mother or father) “born abroad” or “born out of the limits and jurisdiction of the United States” are persons born “subject to the jurisdiction of the United States” and hence "born in the allegiance of the United States."
02. After Birth (Naturalization): Aliens naturalized are persons who apply, and are admitted, to become “subject to the jurisdiction of the United States” and pledge to owe allegiance to the United States.
2. “BY VIRTUE OF NATURAL LAW”
Senator Howard in his speech contends further that his draft likewise recognizes the citizenship persons acquire “by virtue of natural law” which, again, “is simply declaratory of what I regard as the law of the land already.”
But what “natural law” is Senator Howard talking about?
Birth within the dominions and birth within the allegiance. A seminal paper Polly J. Price wrote on "the natural law origins of birthright citizenship in the common law" explores “Calvin's Case (1608) and the early modern common-law mind that first articulated a theoretical basis for territorial birthright citizenship” (Natural Law and Birthright Citizenship in Calvin’s Case, 9 Yale J.L. & Human. 73, 82, 1997), and to quote in part the paper’s introduction:
“The roots of United States conceptions of birthright citizenship lie deep in England's medieval past. This Article explores Calvin's Case (1608) and the early modern common-law mind that first articulated a theoretical basis for territorial birthright citizenship. Involving all the important English judges of the day, 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. Calvin's Case determined that all persons born within any territory held by the King of England were to enjoy the benefits of English law as subjects of the King. A person born within the King's dominion owed allegiance to the sovereign and in turn was entitled to the King's protection. Calvin's Case is the earliest, most influential theoretical articulation by an English court of what came to be the common-law rule that a person's status was vested at birth, and based upon place of birth. In the view of Sir Edward Coke, one of the judges deciding Calvin's Case, the court's determination was required by the divine law of nature, which was "indeed … the eternal law of the Creator" and "part of the law of England.
“Coke's report of Calvin's Case was one of the most important English common- law decisions adopted by courts in the early history of the United States. Rules of citizenship derived from Calvin's Case became the basis of the American common-law rule of birthright citizenship, a rule that was later embodied in the Fourteenth Amendment of the U.S. Constitution and which is now the subject of heated political and legal debate. Remarkably, the rule of birthright citizenship derived from Calvin's Case remained a status conferred by the common law, as opposed to statutory or constitutional law, for centuries …”
Justice Gray in Wong Kim Ark, restates the “fundamental principle” 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 …”
“Obedience and allegiance that makes the subject born.” He continues and refers to Calvin’s Case (1608), the case controlling, Polly J. Price also cited:
“This fundamental principle, with these qualifications or explanations of it, was clearly. though quaintly, stated in the leading case known as 'Calvin's Case,' or the 'Case of the Post nati,' decided in 1608, after a hearing in the exchequer chamber before the lord chancellor and all the judges of England, and reported by Lord Coke and by Lord Ellesmere.”
And to quote the footnote citing the principle Calvin’s Case laid down:
“Neither the climate nor the soil but obedience and allegiance that makes the subject born.”
Justice Gray concludes:
“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.”
“Subject to the jurisdiction” means “owing allegiance." Judiciary Committee Chair Senator Lyman Trumbull (author of the Civil Rights Act) explains the meaning of “subject to the jurisdiction of the United States” in the context of the Clause (2893, 1st col.):
"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.”
“Within its jurisdiction.” Embedded in the penultimate line in Sec. 1 of the Fourteenth (the same section as the Citizenship Clause) is the phrase “any person within its jurisdiction”:
“nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.”
Plyler v. Doe (1982) describes the extent of the phrase “within its jurisdiction”:
“Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory.”
In a word, the phrase “within its jurisdiction” refers to “anyone, citizen or stranger who is subject to the laws of the State or the United States”--and hence, owes obedience to their laws.
Evidently, these two terms appearing in section 1 of the Fourteenth--“subject to the jurisdiction” and “within its jurisdiction”--are not synonymous. For, to Senator Trumbull, a person “subject to the jurisdiction of the United States” (Citizenship Clause) owes allegiance thereto, and hence a citizen thereof; while under Plyler v. Doe, a person merely “within its jurisdiction” (Equal Protection Clause) refers to “anyone, citizen or stranger.”
“Subject to the jurisdiction thereof” and “not subject to any foreign power,” synonymous? In his dissent in Wong Kim Ark, Chief Justice Fuller (Justice Harlan concurring), citing the remarks of Senators Trumbull and Reverdy Johnson during the debate, expressed the view that the phrases “subject to the jurisdiction thereof and “not subject to any foreign power” (Civil Rights Act) are “synonymous”:
“Two months after the statute was enacted, on June 16, 1866, the fourteenth amendment was proposed, and declared ratified July 28, 1868. The first clause of the first section reads: 'All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.' The act was passed and the amendment proposed by the same congress, and it is not open to reasonable doubt that the words 'subject to the jurisdiction thereof,' in the amendment, were used as synonymous with the words 'and not subject to any foreign power,' of the act.
“The jurists and statesmen referred to in the majority opinion, notably Senators Trumbull and Reverdy Johnson, concurred in that view, Senator Trumbull saying: 'What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else; that is what it means.' And Senator Johnson: 'Now, all that this amendment provides is that all persons born within the United States, and not subject to some foreign power (for that, no doubt, is the meaning of the committee who have brought the matter before us), shall be considered as citizens of the United States.' Cong. Globe, 1st Sess. 39th Cong. 2893 et seq.”
But, if both phrases are “synonymous,” at least insofar as they are claimed to qualify the phrase “All persons born,” or at birth, why would Senator Trumbull speak of “those persons” (alluding to aboriginal Indians) in this manner?
"Mr. TRUMBULL … It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens" (2893, 2nd col.) … "We propose to make citizens of those brought under our jurisdiction in that way." (2893, 3rd col.)
The phrases cited above, “persons who come completely within our jurisdiction” and “those brought under our jurisdiction,” obviously do not refer to persons at the time of birth; rather, Senator Trumbull’s remarks no doubt point to a still-unrecognized Second category of persons already born, “who come completely within,” or are “brought under,” the jurisdiction of the United States after birth.
NOTE: Justice Harlan cited Senator Trumbull’s remark at p. 2893, 2nd col. to buttress his dissent in Elk, asserting that, as already quoted earlier here, persons “may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States” after birth “in respect of persons born in this country.”
"Language is better than the language employed in the Civil Rights Act." Senator Trumbull compares the "language" used in the Citizenship Clause with that in the Civil Rights Act.
"Mr. TRUMBULL. "I have already replied to the suggestion as to the Indians being subject to our jurisdiction. They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States ... For these reasons, I think this language is better than the language employed by the civil rights bill" (2894, 2nd Col.) ...The language seems to me to be better chosen than it was in the other bill." (2894, 3rd Col., bold added)
"
Pair of commas (again). Then, there is Senator Johnson’s view that Chief Justice Fuller cited, asserting that “all that this amendment provides is that all persons born within the United States, and not subject to some foreign power (for that, no doubt, is the meaning of the committee who have brought the matter before us).”
This, of course, is the correct reading of the phrase without the pair of commas enclosing it, which was how the “synonymous” phrase in the Civil Rights Act was grammatically employed. The “synonymous” phrase Senator Howard used in the Clause, however, is enclosed within a pair of commas.
So, even if both phrases are synonymous, what matters is how they are employed, grammatically.
Enclosing the phrase “and subject to the jurisdiction thereof” in the Clause with a pair of commas (the first before the coordinator “and,” and the second before the linking verb “are”) would necessarily convey an entirely different meaning or intent as the “synonymous” phrase--sans the commas--in the Civil Rights Act; hence, what has, no doubt, lead to all the confusion concerning the author’s intent is the ungrammatical reading of the Clause that disregards or ignores altogether the pair of commas Senator Howard deliberately inserted to enclose the phrase “and subject to the jurisdiction thereof” with.
NOTE: The Congressional Globe transcripts of the debate during the Civil Rights Act and the Clause itself have not been helpful in this regard, for the commas are sometimes omitted and inserted. In fact, with due respect, the first comma before the conjunction “and” is omitted in several instances that the Clause is cited in Rogers v. Bellei. Thus, had the commas been accorded the significance and attention Senator Howard intended it to convey, the Second category would not have been overlooked for so long.
“Within the dominions” (District of Columbia and the territories)
There is another “class of persons” falling under the criteria of “natural law.”
What about those born or residing “within the dominions,” specifically “in the District of Columbia and in the Territories” situated outside of the fifty States “in the United States,” including the inhabitants of ceded territory at the time of annexation (over whom the United States now exercises the rights of sovereignty and jurisdiction), particularly their children, born later, who are already “within the realm and within the allegiance” and “subject to the jurisdiction of the United States”?
Do they qualify or become obligated to belong to Senator Howard’s Second category of “all persons subject to the jurisdiction of the United States“ or to “every other class of persons” his draft recognizes as citizens of the United States “virtue of natural law”?
Acquisition of citizenship, treaty-making power, During the Civil Rights Act debate, Senator Reverdy Johnson discussed the status of inhabitants residing in territory ceded under the treaty-making power (Louisiana and Florida):
“Mr. JOHNSON … How did the residents of Louisiana at the time of the cession in 1803, and the residents of Florida at the time of cession in 1819 became citizens of the United States? It was by treaty. The treaties in these cases provided that all the Inhabitants of the ceded territory should be entitled in the United States to the same privileges, immunities, and rights that belonged to the citizens of the United Sates. No naturalization was ever supposed to be necessary in those cases, and none of those inhabitants have since applied for naturalization; and they have been in the courts time after time and recognized as citizens.” (506, 1st col., January 30, 1866)
Acquisition of citizenship, joint resolution of Congress. Senator Johnson continues with his remarks concerning the status of the inhabitants in Texas conferred “by joint resolution of the two Houses”:
“Mr. JOHNSON … It was proposed at one time to acquire Texas by treaty, but it was subsequently annexed by joint resolution of the two Houses. That establishes the precedent which I was about to supposed might be established under the Constitution. The citizens of Texas, who course were aliens, it has never been doubted became citizens of the United States by the annexation of Texas; and that was not done by treaty, it was done by legislation. If the power was in Congress by legislation to make citizens of all inhabitants of the State of Texas, why is it not in the power of Congress to make citizens by legislation of all who are inhabitants of the United States and who are not citizens? That is what this bill does, or what it proposes to do. There are within the United States millions of people who are not citizens, according to the view of the Supreme Court of the United States. Ought they be citizens? I think they ought.” (506, 1st col., January 30, 1866)“There is no distinctive State citizenship.” In his speech in support of President Johnson’s veto of the Civil Rights Bill, Senator Garrett Davis echoes Senator Johnson’s remarks on acquiring citizenship of the United States and adds a significant note on “State citizenship”:
“Mr. DAVIS … There is, then, but the three modes of becoming citizens of the United States: by birth, according to the naturalization laws passed by the Congress, and by treaty … My further position is that the States have no power whatever over the subject of citizenship. To have perfect uniformity of law upon this important subject, the States by the Constitution surrendered to Government all and exclusive power over It … There is no distinctive State citizenship. There is in our country but one citizenship, that of the United States, and every person that is entitled to the denomination is a citizen of the United States, resident in some particular state or territory.” (182, Appendix, Civil Rights Bill, April 6, 1866)Senator Davis’ remarks that “[t]here is no distinctive State citizenship … but one citizenship, that of the United States, and … resident in some particular state or territory” may have prodded Senator Howard to include in his draft the phrase “[citizens] of the State wherein they reside,” left out in the Civil Rights Act.
The District of Columbia and the territories. In 1872, four years after the ratification of the Fourteenth in 1868, the U.S. Supreme Court handed down its first ruling on the Citizenship Clause in the Slaughter-House Cases, and said:
“The purpose is manifest, to establish through the whole jurisdiction of the United States ONE PEOPLE …It is an act of Union … Under it the fact of citizenship does not depend upon parentage, family, nor upon the historical division of the land into separate States, some of whom had a glorious history, of which its members were justly proud.”
Justice Samuel Miller in Slaughterhouse highlights the diversity of opinions concerning the status of persons in “the District of Columbia or in the Territories” at the time the Clause was debated in 1866:
“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. Whether this proposition was sound or not had never been judicially decided … [but the Clause] “puts at rest both the questions which we stated to have been the subject of differences of opinion.”
Justice Joseph Bradley, dissenting in Wong Kim Ark, argued the same view Justice Miller articulated:
“The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country; and that State citizenship is secondary and derivative … Inhabitants of Federal territories and new citizens by annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, as citizens of the United States, lay claim to every one of the privileges and immunities which have been enumerated."
“To persons everywhere.” Senator Trumbull during the debate, in reply to Senator Johnson, delineated the extent of the reach of the Clause as “everywhere” (comparable to “any place” in the phraseology of the Thirteenth), so long as that person remains “subject to the jurisdiction of the United States,” and to quote:
"Mr. TRUMBULL … The second section [of the Fourteenth] refers to no persons except those in the States of the Union; but the first section [Citizenship Clause] refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia." (2894, 1st col., bold added)“Born within the United States, its Territories, or districts.” Senator Trumbull’s clarification merely affirms what Rep. James Falconer Wilson, Chair of the House Judiciary Committee, said during the Civil Rights Act debate two months earlier, quoting William Rawle, A View of the Constitution of the United States of America (1829) at page 80, “whose constitutional law treatise was one of the most widely respected antebellum works”:
“Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen of the United States in the sense of the Constitution.” (1115, 3rd col., March 01, 1866, bold added)“Natural-born,” “within the dominions” and “within the ligeance.” Earlier during the House debate, Rep. Wilson also cites Sharwood's Blackstone, Vol. 1, p. 364 (1765) to confirm the tie between “natural-born subjects” and “allegiance” in “natural law”:
"Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance of the King; and aliens are such as are born out of it."(1115, 3rd col., March 01, 1866, bold added)Rep. Wilson concludes by stating that ”natural-born” status, as derived from “natural law,” became the “national law”:
"It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, 'founded in reason and the nature of government' … The English Law made no distinction … in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward."(1115, 3rd col., March 01, 1866, bold added)Hence, to the Court, “by virtue of natural law,” under the Clause Senator Howard crafted: “Citizenship of the United States is the primary citizenship … State citizenship is secondary and derivative”; a person may be a citizen of the United States without being a citizen of a State. More importantly, citizenship does not anymore depend upon “the historical division of the land into separate States.”
For, under “natural law,” persons born or residing “within the dominions and within the allegiance” or “those who had been born and resided always in the District of Columbia or in the Territories” are to be regarded as “natural-born” citizens of the United States, particularly “inhabitants of Federal territories and new citizens by annexation of territory …
Territories ceded under the 1898 Treaty of Paris. However, persons born in Puerto Rico and Guam, territories ceded under the 1898 Treaty of Paris, “appurtenant and belonging to the United States, but not a part of the United States” (being “unincorporated” under the “occult” Doctrine of Incorporated Territory the Insular Cases enunciated) are deemed merely as second-class “statutory,” not “Fourteenth Amendment first sentence,” citizens of the United States, a “U.S. citizenship” the Congress--it is claimed--may confer by “collective naturalization” (even “at birth”?) and may unilaterally revoke at its pleasure.
NOTE: Persons born or residing in the U.S. Virgin Islands acquire the same status as Puerto Ricans and Guamanians, while persons born or residing in American Samoa are “non-citizen U.S. nationals.”
Territorial Filipinos, by law in the subjunctive mood, “shall be regarded as if they were aliens.” As regards Territorial Filipinos (Filipinos born in the U.S. territory of the Philippine Islands during the American territorial period between1898-1946 and judicially recognized to be “persons subject to the jurisdiction of the United States”), a separate paper would be required to discuss the blatant denial of their birthright--clearly a glaring case of birthright prejudice aborting birthright citizenship.
For, not content with coining the “legal” oxymoron status of “non-citizen national” of the United States to designate them with, Congress later christened Territorial Filipinos, by law, to be “regarded as if they were aliens,” unbelievably phrased in the classic subjunctive mood, “as if … were,” a supposition contrary to fact and the jurisprudence on their status, not to mention the Citizenship Clause (grammatically read as intended) and natural law as discussed; yet, mandated under the very same law to continue to “owe allegiance to the United States,” thereby creating another incongruous “legal” status for the unwanted, disowned and abandoned outcasts--aliens owing allegiance to the United States.
But several court rulings have consistently held that Territorial Filipinos are not “aliens”; rather, they are “American nationals” at birth; yet, they were never afforded the opportunity to renounce or preserve their nationality at birth, upon the withdrawal of the sovereign at their place of nativity.
Hence, officially, Territorial Filipinos born in the U.S. territory of the Philippine Islands between 1898 and 1946 were stateless at birth, for how can they answer truthfully the question: Country of Birth, if the sovereign at their place of birth disowned them by law, recognizing them merely “as if they were aliens” (intended to place them subject to immigration laws), and the Philippines Islands, their place of birth, became the Republic of the Philippines only upon the withdrawal of U.S. sovereignty in 1946?
Dred Scott II, it seems, came back earlier (1934) in the subtle phraseology of a law, “as if they were aliens” tantamount to “as if they were property”—although a supposition, contrary to fact--and sadly remains to this day to haunt its victims.
In any case, had the Second category been recognized earlier, there would not have been any need for the Congress to invoke legislative “collective naturalization” to confer U.S. citizenship upon persons born or residing in the territories ceded under the 1898 Treaty of Paris--Puerto Ricans and Guamanians, including, of course, Territorial Filipinos even if regarded by law, contrary to fact, “as if they are aliens.”
For, upon the moment of cession, the inhabitants of these territories and those born later there become “subject to the jurisdiction of the United States” and hence qualify under the Second category to be conferred the status of citizens of the United States.
Class of persons "by virtue of natural law." Thus, the Second category includes the following “class of persons” born or residing “within the dominions and within the allegiance” or “those who had been born and resided always in the District of Columbia or in the Territories” and were already declared citizens of the United States” by virtue of natural law”:
01. At Birth (Natural-born): Persons born “subject to the jurisdiction of the United States” or owe allegiance thereto in ceded or annexed territory over which the United States exercises the rights of sovereignty and jurisdiction.
02. After Birth (Naturalization): Persons inhabiting ceded or annexed territory, over which the United States exercises the rights of sovereignty and jurisdiction, who become “subject to the jurisdiction of the United States” (or collectively naturalized) from and after the moment of the formal acquisition or cession by treaty or other means of the territory they were born or residing in, who opt to renounce, rather than preserve, their allegiance to the previous sovereign.
J. A DESIDERATUM IN THE JURISPRUDENCE AND LEGISLATION
In view of all this, it would seem that it was the recognition of a Second category in his draft--“and subject to the jurisdiction thereof”--that Senator Howard felt so confident about, prompting him at the end of his speech to boldly proclaim:
“Mr. HOWARD … This amendment I have offered [which] is simply declaratory of what I regard as the law of the land already … 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.” (2890, 2nd col.)
Actually, the “desideratum” (defined as “something considered necessary or highly desirable”) that “settles the great question of citizenship”--or the ideal Citizenship Clause--Senator Howard was aspiring to achieve would have been readily conveyed as precisely as the very words he framed to define the Second category with--
All persons subject to the jurisdiction of the United States are citizens of the United States and of the State wherein they reside.
Why? The Second already includes the First category, since “All persons born or naturalized in the United States” (First) are unarguably persons likewise “subject to the jurisdiction of the United States” (Second) or, reciprocally, owe allegiance thereto, particularly those “naturalized,” since they are required to take the Oath of Allegiance before they can be admitted as citizens of the United States.
So, by recognizing this Second category of “all persons subject to the jurisdiction of the United States”--at birth or after birth--lying dormant in suspended animation enclosed between a pair of commas in his draft--the festering contradictions engendered by the current misreading of Senator Howard’s intent (and the 39th Congress, for that matter) to frame the ideal Citizenship Clause, “the desideratum in the jurisprudence and legislation of this country,” may now be hopefully resolved once and for all.
“Removes all doubt as to what persons are or are not citizens.” For, read as intended, Senator Howard’s draft indeed “settles the great question of citizenship” and “removes all doubt as to what persons are or are not citizens,” including, for that matter, the recognition of “State citizenship” in relation to citizenship of the United States.
And he wisely tackled this task by consolidating “every other class of persons,” already recognized at that time in 1866 to be citizens of the United States “by virtue of natural law and national law,” into just one separate Second category, thereby achieving, by “the very language” he crafted to define them with the “desideratum in the jurisprudence and legislation of this country,” to embrace all who belong to the following “class of persons”--apart from those already covered under the First category, privileged under just soli to be born in “the historical division of the land into separate States, some of whom had a glorious history, of which its members were justly proud”:
01. Children of U.S. citizens (mother or father) born abroad already recognized under the Naturalization Act
02. Persons born in ceded territory already recognized to be authorized under the treaty-making power together with the Territorial Clause, or by joint resolution of Congress
03. Inhabitants of ceded territory already recognized to be authorized under the treaty-making power together with the Territorial Clause, or by joint resolution of Congress
04. Aliens naturalized already recognized under the Naturalization Act, although later included in the Clause by the insertion of the words “or naturalized” in Senator Howard’s original draft which subsequently modified its application only to aliens "in the United States"
Being a special class of “persons born,” aboriginal Indians are included, and to repeat Justice Harlan’s words in Elk, “from an after the moment they become subject to the complete jurisdiction of the United States” after birth. In fact, in concluding his dissent in Elk, Justice Harlan justified his argument for a Second category, “in respect of persons [aboriginal Indians] born in this country,” by insisting that:
“Born, therefore, in the territory, under the dominion and within the jurisdictional limits of the United States, plaintiff has acquired, as was his undoubted right, a residence in one of the states, with her consent, and is subject to taxation and to all other burdens imposed by her upon residents of every race. If he did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the states, subject to the complete jurisdiction of the United States, then the fourteenth amendment has wholly failed to accomplish, in respect of the Indian race, what, we think, was intended by it; and there is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.”
“Through the whole jurisdiction of the United States ONE PEOPLE.” In the light of all these arguments presented, the true meaning of the Second category in the Citizenship Clause should now be accorded the recognition and significance Senator Howard intended it to convey. For to recall Justice Miller’s words in Slaughterhouse:
“The purpose is manifest, to establish through the whole jurisdiction of the United States ONE PEOPLE ... It is an act of Union.” (bold added)
Nonetheless, without intending disrespect, it is evident that the Justices of the Court, having overlooked the grammatical reading of the phrase as intended, was struggling to explain a phrase they had woefully misread, which was not without contrary yet equally convincing arguments from justices dissenting. And, as to be expected, they were both faced with contradictions in their explanations and the difficulty of reconciling their somewhat flawed justifications.
Must the legal community continue to misread the phrase “and subject to the jurisdiction thereof” in the Clause as a “qualifying phrase” in order to justify already “recognized exceptions” of the ancient common law rule on birthright “as old as the rule itself” which “could hardly be applicable to more than two or three or four persons”?
The authors are hopeful that this different reading of the Citizenship Clause will heighten interest on that “other class of persons”--the unrecognized, the now-forgotten, disowned and abandoned citizens of the United States--Senator Howard in his sponsorship speech boldly proclaimed that his draft “will include.”
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