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SUMMARY
Cartoon of Aguinaldo asking U.S. anti-imperialists to sign the Oath of Allegiance.
Harper's Weekly, April 13, 1901, reprinted Literary Digest, April 20, 1901.
(http://historicaltextarchive.com/images/aguioath.gif)
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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 Sec. 1 of the Fourteenth Amendment (1868)
"What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means."
--Judiciary Committee Chair Senator Lyman Trumbull during the Citizenship Clause debate, 39th Congress, 1st Session (1866)
“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."
-- Sir William Blackstone, Commentaries on the Laws of England (1765)
“It is neither the climate nor the soil but allegiance and obedience that make the subject born.”
--Sir Edward Coke, Calvin’s Case (1608)
"The Philippines thereby ceased, in the language of the treaty [of Paris], 'to be Spanish.' Ceasing to be Spanish, they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States … although there was no stipulation that the native inhabitants should be incorporated into the body politic … Their allegiance became due to the United States, and they became entitled to its protection."
--Chief Justice Melville Fuller, The Fourteen Diamond Rings (1901)
“SECTION 1. Every person resident in the Philippine Islands, owing allegiance to the United States or the Government of the Philippine Islands, who levies war against them, or adheres to their enemies, giving them aid and comfort within the Philippine Islands or elsewhere, is guilty of treason.”
--The Treason Act of 1901 enacted by the United States Philippine Commission under authority of the President of the United States
“All citizens of the Philippine Islands shall owe allegiance to the United States.”
--The Philippine Independence Act or Tydings-McDuffie Law (1934)
"Every officer of the government of the Commonwealth of the Philippine Islands shall … take and subscribes an oath of office, declaring, among other things, that he recognizes and accepts the supreme authority of and will maintain true faith and allegiance to the United States."
--The Philippine Independence Act or Tydings-McDuffie Law (1934)
"Persons born in the Philippine Islands during [the American territorial] period, were American nationals entitled to the protection of the United States and conversely owing permanent allegiance to the United States."---------------------------------------------------------------------
--Chief Justice Earl Warren, Barber v. Gonzalez (1954)
A. This Paper argues that allegiance in return for protection is the sole determinant--Blackstone's "tie, or ligamen"--to citizenship at birth or after birth and that a "natural-born citizen" of the United States is best defined as a person "born in the allegiance of the United States."
In 1866, during the same year Congress debated and approved the Citizenship Clause, 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." (bold added)
Chief Justice Morrison R. Waite in Minor v. Happersett (1874), in this regard, 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)
Justice Swayne and Chief Justice Waite are, of course, merely echoing what Sir William Blackstone in Commentaries on the Laws of England (1765) said concerning the relationship between "natural-born" and allegiance:
"Natural-born subjects are such as are born within the dominions of the crown of England, that is, within … the allegiance of the king … Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject."
Earlier, it was Sir Edward Coke in Calvin’s Case (1608) who first articulated the significance of the relationship between "natural-born" and allegiance to the common-law principle on birthright:
"It is neither the climate nor the soil but allegiance and obedience that make the subject born."
Allegiance acts as the unifier of the two distinct class of citizens--the "natural-born" and the "naturalized"--and it is this allegiance owed that marks the citizen off from an "alien" subject to a foreign power.
Allegiance, in fact, becomes the equalizer. For the obligation of allegiance that attaches to the child at birth ("Birth and allegiance go together," U.S. v. Rhodes, otherwise born stateless) in compensation for "protection" afforded (Minor v. Happersett), 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, under oath, to be admitted as a "naturalized citizen."
Thus, to repeat the basic argument in this paper: Allegiance owed best defines the citizen--both the "natural-born," either by jus soli or jus sanguinis, and the "naturalized." In a word, a person owing allegiance to a state at birth or after birth is a citizen thereof.
During the Citizenship Clause debate, Senator Lyman Trumbull, Judiciary Committee Chair and author of the 1866 Civil Rights Act, defined 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." (bold added)What Senator Trumbull is, of course, conveying in his definition of the phrase is that “owing allegiance” is simply the "reciprocal" obligation in return for "protection" (Minor v. Happersett) extended to persons “subject to the jurisdictionwithin the jurisdiction" of the United States, which refers to “anyone, citizen or stranger who is subject to the laws of the State” (Plyler v. Doe, 1982).
More significant during the debate, Senator James Doolittle directly quoted (shown printed in quotation marks in the scanned original Congressional Globe transcript) how “the language” of the phrase, "subject to the jurisdiction thereof," that Senator Howard authored, was understood to be read:
"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 [the author, Senator Howard] 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 words printed in quotation marks Senator Doolittle refers to as "the language" the author of the Clause, Senator Howard, used: "all persons subject to the jurisdiction of the United States"
Now why would Senator Doolittle add the words "all persons" to the phrase "subject to the jurisdiction of the United States"?
Did Senator Howard, the author, intend the phrase to be read in this way or, reciprocally, as Senator Trumbull defined it during the debate, cited earlier above--"All persons owing allegiance to the United States"? Is this not what Justice Noah Haynes Swayne in U.S. v. Rhodes similarly declared during the same year the Clause was debated in 1866, also cited above--“All persons born in the allegiance of the United States are natural-born citizens"?
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.
For under U.S. v. Wong Kim Ark (1898), the phrase "and subject to the jurisdiction thereof" is viewed, on the contrary, as "restrictive," or merely as a "qualifying phrase" of the element preceding it, "All persons born or naturalized in the United States," to exclude the already "recognized exceptions"--"the children born of alien enemies in hostile occupation and children born of diplomatic representatives of a foreign state."
What is distressing to note is that the “qualifying phrase” view is now the accepted gospel truth; thus, to claim or even suggest an altogether different reading of the phrase in the context of the Clause is unthinkable (even idiotic?).
Perhaps, the related issue concerning Senator John McCain's "natural-born" status and his eligibility to the presidency may yet turn out to be the opportunity to take a closer look at the over-century old Wong Kim Ark reading of the Clause.
B. This paper argues that the Wong Kim Ark reading of the phrase, "and subject to the jurisdiction thereof," in the Citizenship Clause is grammatically incorrect,
Note that the words "or naturalized" in the Clause as ratified do not appear in the draft the author, Senator Jacob Merritt Howard, proposed that was debated and "agreed to" on the same day he submitted it on May 30, 1866. 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."
Take careful note, too, that the phrase “and subject to the jurisdiction thereof” is enclosed within a pair of commas. And the relevant punctuation rule in elementary English grammar is clear: “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.”
In fact, a "restrictive" phrase is precisely what the same 39th Congress employed in a similar clause in the 1866 Civil Rights Act it enacted barely two months earlier by omitting the comma before the conjunction "and":
"All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."
Here, owing to the omission of the comma before the conjunction "and," the phrase "not subject to any foreign power" is undoubtedly "restrictive," a "qualifying phrase" of the element preceding it, "All persons born."
But the phrase "and subject to the jurisdiction thereof" in the Clause (even if synonymous to that in the Civil Rights Act) is enclosed between a pair of commas, which, as defined, is "non-restrictive"; so, why is it read under Wong Kim Ark as "restrictive," a qualifier of the element preceding it, ignoring altogether the commas?
Although this matter is best left to grammarians to definitively resolve; nonetheless, the fact remains that, 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?
Thus, in the case of the Citizenship Clause, by inserting the first comma before the coordinator "and," and the second before the linking verb "are," the author is grammatically conveying the intention that the phrase he enclosed between the commas, "and subject to the jurisdiction thereof," is "non-restrictive."
What this means, of course, is that the Clause Senator Howard framed consists instead of a compound subject and that he purposely enclosed the phrase, "and subject to the jurisdiction thereof," within a pair of commas (with the crucial first comma before the coordinator "and") so as not to be mistakenly confused later as "restrictive," a "qualifying phrase" of the element preceding it, and to grammatically identify the "non-restrictive" phrase enclosed between the commas as the second subject of the compound.
Structured, therefore, as the second of a compound subject, joined in coordinate configuration to the first by the conjunction "and," the phrase is worded as the elliptical for the complete construction "and [all persons] subject to the jurisdiction of the United States"--with the main noun phrase "all persons" omitted rather than stated or repeated for brevity or style, inferable from the main noun phrase in the first subject it is coordinate with, "All persons born in the United States," (sans the words "or naturalized" which was inserted a week later), defining a still-unrecognized category of citizens of the United States.
Hence, grammatically analyzed, "the language" that the author, Senator Howard, employed in his draft of the Clause that Senator Doolittle cited refers to a separate, still unrecognized category of citizens of the United States-"All persons subject to the jurisdiction of the United States"--at birth or after birth!
Justice John Marshall Harlan in Elk v. Wilkins (1884) argues a somewhat similar view, compelling even in dissent:
“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 from and after the moment they become subject to the complete jurisdiction of the United States.” (bold added)
that they may claim the rights of national citizenship
Thus, 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 “from and after the moment they become subject to the complete jurisdiction of the United States” or after birth,“ in respect of persons born in this country.”
This long-overlooked reading Senator Doolittle cited that Justice Harlan echoed in dissent harmonizes with the intent the author, Senator Howard, 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, 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... This ... 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, since there can only be one class of “persons born in the United States"--birthright under jus soli being a unique status vested at birth, upon the indelible circumstance of place of birth, irrespective of parentage, race, color, creed or purse (the slave-born and anchor babies included)--the question is:
At that time in1866, who belonged to this category of "every other class of persons" already recognized "by virtue of natural law and national law" to be citizens of the United States that the author himself declared his draft "will include" in order to settle with finality "the great question of citizenship" and remove "all doubt as to what persons are or are not citizens of the United States"?
Those belonging to this category of "every other class of persons" would, of course, include persons (among others, perhaps) already declared under the Naturalization acts as citizens of the United States--children of U.S. citizens born abroad and aliens naturalized (even though the words "or naturalized" were inserted later).
Under the Wong Kim reading, however, citizenship of the United States is severely restricted only to those "born or naturalized in the United States" (and nowhere else, other than "in the United States") who must--at the moment of birth or naturalization--be "subject to the jurisdiction thereof" or owe allegiance thereto.
So, contrary to the intent Senator Howard declared during his sponsorship speech, the Wong Kim Ark reading does not "include every other class of persons" already conferred "by virtue of natural law and national law" to be citizens of the United States at the time the Clause was debated in 1866, apart from the class of persons "born in the United States."
If so, then, the Wong Kim Ark reading fails utterly to satisfy what the author intended it achieve, which is that his draft--"settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."
In this light, the phrase "and subject to the jurisdiction thereof" in the Clause should have been read instead to signify what the author, Senator Howard, grammatically intended it to convey, which is the "language" Senator Doolittle during the debate directly cited and Justice Harlan in Elk v. Wilkins similarly advocated--to include a separate category of "every other class of persons" already recognized "by virtue of natural law and national law" to be citizens of the United States, 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," and that is, "All persons subject to the jurisdiction of the United States"--at birth or after birth.
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” already recognized and qualified "by virtue of natural law and national law" 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.” (bold added)
C. This paper argues that, grammatically read as the author, Senator Jacob Merritt Howard, intended it to convey, the Citizenship Clause of the Fourteenth Amendment proclaims that:
"All persons born or naturalized 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."
Sadly, owing to its misreading of the Citizenship Clause, the Court in virtually all its decisions has relied on the Insular Cases (1902) which, in turn, leans on the U.S. v. Wong Kim Ark (1898) view of the Clause to the effect that the phrase, “and subject to the jurisdiction thereof,” is intended to qualify the element preceding it, “All persons born or naturalized in the United States.”
The Territorial Clause provides that:
"Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"
Article IX of the 1898 Treaty of Paris stipulates that;
"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress."
Under this Treaty ending the Spanish-American War, Spain ceded the territories of Puerto Rico and Guam, and sold for $20 million the territory of the Philippine Islands, to the United States.
Upon these two provisions (Territorial Clause and Art. IX of the Treaty of Paris), the U.S. Supreme Court in the Insular Cases, particularly Downes v. Bidwell (1902), enunciated the Doctrine of Incorporated Territory. This doctrine declares that
“[T]he power to acquire territory by treaty [under the Territorial Clause] implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be.” (bold added)
The doctrine thereby asserts that territories Congress has deemed to be “unincorporated,” such in particular as the territories ceded under the Treaty, are to be regarded merely as “appurtenant and belonging to the United States, but not a part of the United States.”
Thus, claiming further the authority granted under the Naturalization Clause, Congress conferred U.S. citizenship by “collective naturalization,” upon those born or residing in Puerto Rico (1917) and Guam (1950) and designated those born or residing in the Philippine Islands with a newly-coined legal status of “non-citizen national,” since under the U.S. Constitution, a person is either a “citizen” or an “alien.”
And upon the withdrawal of U.S. sovereignty and jurisdiction in and over the territory and its people, the U.S. Supreme Court in U.S. v. Rabang (1957) opined that:
“[P]ersons who were born in the Philippine Islands” and “who thereby were nationals of the United States became aliens on July 4, 1946.” (bold added)
The U.S. 9th Circuit Court of Appeals, in Rabang v. INS (1994), interpreted the phrase, “in the United States,” as employed in the Clause, to embrace only the fifty States of the Union and the District of Columbia, but not without the spirited dissent by Judge Harry Pregerson who insisted that the Philippine Islands was part of the “dominion of the United States,” and thus persons born there are U.S. citizens.
In 1998, the U.S. 2nd Circuit Court of Appeals in Valmonte v. INS (with Atty. Elly Velez Pamatong as counsel for Petitioner) unanimously dismissed a similar claim, citing the 9th Circuit arguments in Rabang.
But, without intending disrespect, these Court decisions were based on a MONUMENTAL READING ERROR of the Citizenship Clause. For, grammatically read as the author, Senator Jacob Howard, intended it to convey, the Clause also confers citizenship upon the still-unrecognized category defined as: "All persons subject to the jurisdiction of the United States," or upon "All persons owing allegiance to the United States," at birth or after birth.
Thus, the U.S. Supreme Court in The Fourteen Diamond Rings cited here held that:
"The Philippines thereby ceased, in the language of the treaty [of Paris], 'to be Spanish.' Ceasing to be Spanish, they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States … although there was no stipulation that the native inhabitants should be incorporated into the body politic … Their allegiance became due to the United States, and they became entitled to its protection." (bold added)
The Tydings-McDuffie Law reiterates the obligation of allegiance Territorial Filipinos owed the United States:
“Citizens of the Philippine Islands shall owe allegiance to the United States.” (bold added)
With the Citizenship Clause grammatically read as intended, the two post-Civil War Amendments, 13th (1865) and 14th (1868), can now be viewed to convey consistency, oneness of intent--Equal Protection in two areas of concern in relation to “the sanctity of the person”: (1) "in the United States"; and (2) "subject to the jurisdiction of the United States”:
THIRTEENTH: The abolition of Slavery or involuntary servitude inflicted upon persons:
(1) "within the United States"; or
(2) "any place subject to their jurisdiction."
FOURTEENTH: The rights, privileges and immunities U.S. Citizenship confers upon persons:
(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof"
D. THIS PAPER CONCLUDES THAT, UNDER THE CITIZENSHIP CLAUSE IN SEC. 1 OF THE FOURTEENTH AMENDMENT, PERSONS BORN IN THE U.S. TERRITORY OF THE PHILIPPINE ISLANDS BETWEEN APRIL 10, 1899 AND JULY 04, 1946 WERE “PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES” AT BIRTH OR PERSONS "BORN IN THE ALLEGIANCE OF THE UNITED STATES"; HENCE, NATURAL-BORN CITIZENS OF THE UNITED STATES.
The authors, of course, entertain no illusions about, and are, in fact, fully cognizant of, the difficulties that need to be surmounted in challenging what is already stare decisis in American jurisprudence.
But, to the authors, this Paper is merely the first of so many hurdles to overcome.
They are confident, nonetheless, that other Territorial Filipinos will augment and refine the arguments already collated. And they remain hopeful that their posterity--equally concerned, committed and involved--will continue the advocacy they have now ignited to vindicate a Fundamental Right the evil of racism, discrimination and intolerance unjustly denied to two generations of Territorial Filipinos, constitutionally entitled to be conferred with, and thereby to enjoy the rights, privileges and immunities such conferment guarantees to citizens of the United States at birth or after birth.
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