Territorial Filipino - Recently Updated Pages

ABSTRACT

territorialfilipino — Thu, 24 Sep 2009 23:04:47 CDT

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Territorial Filipinos are Filipinos born during the American territorial period (1898-1946) in the Philippine Islands after the United States purchased and ceded Las Islas Filipinas from the Spanish Crown under the 1898 Treaty of Paris.

The Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution that was ratified in 1868 reads:

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

Under U.S. v. Wong Kim Ark (1898), the phrase "and subject to the jurisdiction thereof," enclosed within a pair of commas (the first comma before the conjunction "and," the second before the linking verb "are"), is viewed as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States."

With due respect, it is this MONUMENTAL READING ERROR in Wong Kim Ark of the phrase "and subject to the jurisdiction thereof" in the Citizenship Clause that justified the DENIAL of U.S. citizenship to Territorial Filipinos, after Downes v. Bidwell (1901) held that the territories ceded under the Treaty of Paris were "unincorporated territory," merely "appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution."

But take careful note that Downes v. Bidwell was about "the revenue clauses"--not "the Citizenship Clause."

Relying on this Doctrine of Incorporated Territory, Rabang v. INS (1994) opined that:

"... birth in the Philippines during the territorial period does not constitute birth 'in the United States' under the Citizenship Clause of the Fourteenth Amendment, and thus does not give rise to United States citizenship.”

But even if the U.S. territory of the Philippine Islands was regarded as "not a part of the United States," this paper will argue, nonetheless, that the author of the Citizenship Clause in Sec. 1 of the Fourteenth Amendment, Sen. Jacob Merritt Howard (and the 39th Congress for that matter), had it all figured out earlier. For, in the words of Senator Howard in his sponsorship speech, the all-embracing Clause he proposed:

“... is simply declaratory of what I regard as the law of the land already ... by virtue of natural law and national law, a citizen of the United States ... [and] will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States." This has long been a desideratum in the jurisprudence and legislation of this country.” (bold added)

Note that at the time Senator Howard drafted the Clause in 1866, the children of U.S. citizens born abroad out of the limits of the United States--other than those "born in the United States"--were already declared and recognized "by virtue of ... national law" (the Naturalization Acts since 1795) to be citizens of the United States (even as "natural-born" in the original Act); but does the Wong Kim Ark Reading include these children?

And so, since the Wong Kim Ark view does NOT "include every other class of persons," it fails to satisfy fully what Senator Howard said in his speech that the Clause he proposed "settles the great question of citizenship and removes all doubt as what persons are or are not citizens of the United States."

This paper will, therefore, argue that the phrase, "and subject to the jurisdiction thereof," was intended to act, not as a "qualifying" phrase of the element preceding it, but as the SECOND SUBJECT of the compound Sen. Howard structured as an "ELLIPTICAL" for the complete construction, "and [all persons] subject to the jurisdiction thereof," with the repeated main noun phrase, "all persons,"common to both subjects in the compound, OMITTED rather than stated, for brevity or style, recoverable or inferable from the same main noun phrase,"All persons," in the first subject it is coordinate with, joined together by the conjunction "and."

Senator James Doolittle, during the debate, directly quoted (in quotation marks), how “the language” of the phrase "and subject to the jurisdiction thereof" in the Citizenship Clause was understood to convey:

"Mr. DOOLITTLE ... But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language which he [Senator Howard, the author] uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does ..." (bold added)

To repeat what Senator Doolittle quoted--"all persons subject to the jurisdiction of the United States."

Yet, this all-important quotation that appears in the internet accessible Congressional Globe records of the Citizenship Clause debate (39th Congress, 1st Session, May 30, 1866) affirming a SECOND CATEGORY of citizens of the United States has never been subjected to the scrutiny it deserves.

But the crucial question that this paper proposes to resolve persists to this day, and that question is: Does the prevailing Wong Kim Ark reading of the Citizenship Clause that views the phrase between commas, "and subject to the jurisdiction thereof," as a mere qualifier of the element preceding it, "all persons born," satisfy fully Senator Howard's avowed intent that the Clause he authored "removes all doubt as to what persons are or are not citizens of the United States"?

The Wong King Ark view certainly does not; it instead magnifies "all doubt," by excluding children of U.S. citizens born abroad already recognized at the time Senator Howard proposed the Clause in 1866 to be citizens of the United States at birth "by virtue of natural law and national law" as early as 1790 yet.

In the author's own words, the Clause was primarily intended to recognize the conferment of U.S. citizenship, not only upon the class of "persons born in the United States," but also upon "every other class of persons," or upon "all persons," from and after the moment they become "subject to the jurisdiction of the United States," either at birth (natural-born) or after birth (naturalized), though born or residing in territory or in any place out of the limits of the United States, however the term "in the United States" may be defined later--as in the Insular Cases--to exclude ceded territory regarded merely as "appurtenant and belonging to the United States, but not a part of the United States."

In a word, the Second Category is simply a general comprehensive definition of who a citizen of the United States is.

This paper will therefore argue that, aside from a specific First Category conferring U.S. citizenship upon the jus soli class of "All persons born in the United States," it is the laudable inclusion of what is actually a definition of citizenship of the United States under a generic Second Category that virtually confirms in no uncertain terms what Senator Howard boldly highlighted during his sponsorship speech that the Clause he submitted is a proposal that finally "settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."

This paper will conclude that Territorial Filipinos, among others (particularly the children of U.S. citizens born abroad, out of the limits of the United States, already declared "by virtue of national law" as citizens of the United States at birth under the Naturalization Acts since1790--including Senator John McCain born in the Panama Canal Zone), belong to this still-unrecognized, now-forgotten SECOND CATEGORY of citizens of the United States the Citizenship Clause confers--

"all persons subject to the jurisdiction of the United States," at birth, even after birth.
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territorialfilipino — Thu, 26 Mar 2009 06:18:15 CDT

A MONUMENTAL READING ERROR!

That's how to describe, without intending disrespect, the over-a-century-old grammatically incorrect view laid down in U.S. v. Wong Kim Ark (1898) of the phrase enclosed between a pair of commas, "and subject to the jurisdiction thereof," in the Citizenship Clause of the Fourteenth Amendment; and it is this erroneous reading of the phrase that conveniently justified the racism, the birthplace prejudice of denying the recognition--as citizens of the United States--of persons born or residing in the Philippine Islands, a territory over which the United States exercised all rights of sovereignty and jurisdiction during the American territorial period (1898-1946), following its acquisition by purchase from the Spanish Crown for $20 million under Article III of the 1898 Treaty of Paris (with Puerto Rico and Guam ceded as "spoils of war").
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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

“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.”
--Justice Horace Gray in U.S. v. Wong Kim Ark (1898)

"Enclose parenthetic expressions between commas."
“If a parenthetic expression is preceded by a conjunction, place the first comma before the conjunction, not after it.”
--William Strunk, Jr. in The Elements of Style (1918)

“In the grammar of a sentence, an ellipsis or elliptical construction is a construction that lacks an element that is, nevertheless, recoverable or inferable from the context. The elliptical construction is a sequence of words in which some words have been omitted. Because of the logic or pattern of the entire sentence, it is easy to infer what the missing words are.”
--See Wikipedia, Ellipsis (Linguistics) http://en.wikipedia.org/wiki/Ellipsis_(linguistics)

"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 Jacob Merritt Howard, author of the Citizenship Clause] uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does."
--Senator James Doolittle of Wisconsin, Citizenship Clause debate (1866)

FIRST QUESTION PRESENTED

Rather than act as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States," as viewed in U.S. v. Wong Kim Ark (1898), was the phrase, "and subject to the jurisdiction thereof," in the Citizenship Clause of the Fourteenth Amendment--that Senator James Doolittle of Wisconsin quoted during the debate to read "all persons subject to the jurisdiction of the United States"--intended grammatically to act instead as the SECOND of a COMPOUND subject of the clause that the author, Senator Jacob Merritt Howard of Michigan, structured as an ELLIPTICAL, by enclosing the phrase between a PAIR OF COMMAS and inserting the crucial FIRST comma before the conjunction "and" (the second before the linking verb "are"), thereby allowing the main noun phrase, "all persons," common to both subjects, to be omitted rather than to be stated or repeated for brevity or style?
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It is neither the climate nor the soil but allegiance and obedience that make the subject born."
--Sir Edward Coke in Calvin's Case (1608)

"... a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term 'citizenship."
--Justice Samuel Sewall (Massachusetts) in Gardner v. Ward (1805)

"All persons born in the allegiance of the United States are natural born citizens."
--Justice Hoah Haynes Swayne in U.S. v. Rhodes (1866)

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

"... though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England."
--A. V. Dicey in Conflict of Laws (1896)

"The fundamental principle of the common law with regard to English nationality was birth within the allegiance."
--Justice Horace Gray in U.S. v. Wong Kim Ark (1898)

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)

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

SECOND QUESTION PRESENTED

Other than the category of "All persons born or naturalized in the United States," is the "language which he [Senator Jacob Merritt Howard of Michigan, the author of the Citizenship Clause] uses"--"and subject to the jurisdiction thereof," that Senator James Doolittle of Wisconsin quoted to read "all persons subject to the jurisdiction of the United States" and Senator Lyman Trumbull of Illinois clarified to mean "Not owing allegiance to anybody else"--intended, grammatically, to define a still-unrecognized, sadly overlooked SECOND category of citizens of the United States: "All persons subject to the jurisdiction of the United States"--or all persons owing allegiance to the United States--AT BIRTH or AFTER BIRTH, rather than to act as a "qualifying" phrase of the element preceding it, “All persons born or naturalized in the United States" as claimed in Wong Kim Ark?
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"The first amendment is to section one, declaring that "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 words "or naturalized" are not included.")
--Senator Jacob Merritt Howard of Michigan, Author, Citizenship Clause (1866))

"I move, therefore, to amend the amendment--I presume he will have no objection to it--by inserting after the word "thereof" the words "excluding Indians not taxed." The amendment would then read:

"All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the State wherein they reside."
--Senator James Doolittle of Wisconsin, Citizenship Clause Debate (1866)

"Suppose we adopt the amendment as suggested by [Senator Doolittle] … all that would remain to be done on the part of any State would be to impose a tax upon the Indians … in order to make them citizens of the United States … That would be the direct effect of his amendment if it should be adopted. It would, in short, be a naturalization, whenever the State saw it fit to impose a tax upon the Indians."

“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."

"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.”
--Senator Jacob Merritt Howard of Michigan, Author, Citizenship Clause (1866)

"I desire to insert in the first section, 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." ("The amendment was agreed to.")
--Senator William Pitt Fessenden of Maine, Amendment to Citizenship Clause (1866)

THIRD QUESTION PRESENTED

Since the words "or naturalized" were not included in the original draft of the Citizenship Clause that was debated and "agreed to" during the same day the author, Senator Jacob Merritt Howard of Michigan, submitted it on May 30, 1866, and were inserted only a week later on June 8, 1866, upon motion of Senator William Pitt Fessenden of Maine, why would the author contradict himself by mentioning the term "naturalization" several times over during the debate in objecting to Wisconsin Senator James Doolittle's proposal to insert the words "excluding Indians not taxed" in his draft of the Clause, arguing that the “direct effect” of 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,” which, as defined, is the process of acquiring citizenship only AFTER BIRTH, if, as claimed under Wong Kim Ark, the phrase "and subject to the jurisdiction thereof" in the clause acts merely as a "qualifying" phrase of the element preceding it, "All persons born," or AT BIRTH? Is it because the author was actually referring instead to those who belong to the SECOND category of the clause he crafted, particularly--"all persons subject to the jurisdiction of the United States" AFTER BIRTH--who would automatically be "naturalized" by virtue of Senator Doolittle's proposed amendment, "excluding Indians not taxed," the moment a State imposes a tax upon the Indians (already "born") residing there?
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"The Philippines thereby ceased, in the language of the treaty [of Paris] to be foreign country ... The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection."
-- Chief Justice Melville Fuller in Fourteen Diamond Rings v. U.S. (1901)

"... the government of the Philippines owes its existence wholly to the United States, and its judicial tribunals exert all their powers by authority of the United States. The jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount."
--Justice John Marshall Harlan in Grafton v. U.S. (1907)

“NOW, THEREFORE, I, HARRY S. TRUMAN, President of the United States of America … do proclaim that … The United States of America hereby withdraws and surrenders all rights of possession, supervision, jurisdiction, control, or sovereignty now existing and exercised by the United States of America in and over the territory and people of the Philippines.”
--U.S. President Harry S. Truman, Proclamation 2695 (1946), Independence of the Philippines

FOURTH QUESTION PRESENTED

Does this now-forgotten SECOND category of citizens of the United States the Citizenship Clause confers--"All persons subject to the jurisdiction of the United States"--apply to the "native inhabitants" of the Philippine Islands whose "allegiance became due to the United States" (Fourteen Diamond Rings v. U.S.) upon the exchange of ratifications of the Treaty of Paris and to their children as well born subsequent thereto throughout the entire American territorial period (1898-1946), during which "the jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government [was] paramount" (Grafton v. U.S.), having exercised during that period "all rights of possession, supervision, jurisdiction, control, or sovereignty ... in and over the territory and people of the Philippines" (President Truman, Independence of the Philippines Proclamation)?
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"All citizens of the Philippine Islands shall owe allegiance to the United States ...

"For the purposes of … all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands … shall be considered as if they were aliens. For such purposes the Philippine Islands shall be considered as a separate country ...

"Upon the final and complete withdrawal of American sovereignty over the Philippine Islands the immigration laws of the United States (including all the provisions thereof relating to persons ineligible to citizenship) shall apply to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries."
--Philippine Independence Act or the Tydings-Mcduffie Law (1934)

“(1) Everyone has the right to a nationality.
”(2) No one shall be arbitrarily deprived of his nationality …”
--Section 15, Universal Declaration of Human Rights, UN General Assembly (1948)

“The child shall be entitled from his birth to a name and a nationality.”
--Principle 3, Declaration of the Rights of the Child, UN General Assembly (1959)

"People may also be stateless if they are members of a group which is denied citizen status in the country on whose territory they are born."
--See Wikipedia, Statelessness, http://en.wikipedia.org/wiki/Statelessness

“In this great struggle of the Pacific, the loyal Americans of the Philippine Islands are called upon to play a crucial role ... It is not for me or for the people of this country to tell you where your duty lies. We are engaged in a great and common cause. I count on every Philippine man, woman, and child to do their duty. We will do ours.”
--President Franklin D. Roosevelt, Message of Support to the Philippines, December 28, 1941 (two weeks after the Japanese sneak attack on Pearl Harbor)

FIFTH QUESTION PRESENTED

Since the Philippine Islands under the Tydings-McDuffie Law "shall be considered as a separate country" (although still an "insular possession" of the United States and not yet independent at the time the law was enacted in 1934) and the "citizens of the Philippine Islands ... shall be considered as if they were aliens" (subject to harsh U.S. immigration laws and worded strangely enough in the subjunctive mood, "as if ... were," contrary to fact), yet, unbelievably, mandated under this same law to continue to "owe allegiance to the United States," such that, under this law, "persons who were born in the Philippine Islands are to be considered to the same extent as in the case of [birth occurring in] other foreign countries" (again, contrary to fact, for the Philippine Islands was not yet recognized as a "foreign" country at the time they "were born"); so, disowned and despised, designated with the unique oxymoron "identity" of "aliens owing allegiance to the United States," in what country were "citizens of the Philippine Islands" born (as differentiated, of course, from citizens of the Republic of the Philippines, an independent country, separate from the United States, recognized only in 1946 after all of them "were born") or, simply put, even if it be conceded that the law had declared them all as having been "born stateless"--legally, that is, but enacted ex post facto, after they "were born"--what was their historical "country of birth," a "country" they could actually call as their own at the moment of birth, a "country" whose President called upon "every Philippine man, woman, and child" during the Second World War "to do their duty" of sacrificing their lives, their fortunes, willingly, to defend the U.S. territory and "insular possession" of the Philippine Islands against the onslaught of an invading army, unquestionably a higher Call to Duty they were all bound to obey as "the loyal Americans of the Philippine Islands"?
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Domingo T. Arong
Fermin T. Rotea
Vicente F. Gambito
Joseph M. Baduel
Jose M. Caminade
Augustus L. Momongan
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Alumni Members
The U.P. Brotherhood of the Filipinos’55
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Arthur Robert B. Arong
Editor/Researcher

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Original:17 November 2003
Revised:14 April 2008
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BACKGROUND

territorialfilipino — Mon, 12 Jan 2009 18:33:00 CST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” (bold added)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Mr. DOOLITTLE ... But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language which he [Senator Howard, the author] uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does ..." (bold added)

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

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

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

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

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

“Mr. HOWARD. This amendment which I have offered is simply declaratory of what I regard as the law of the land already ... by virtue of natural law and national law, a citizen of the United States ... [and] will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States." This has long been a desideratum in the jurisprudence and legislation of this country.” (bold added)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Upon the other hand, the 14th Amendment, upon the subject of citizenship, declares only that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place 'subject to their jurisdiction.'”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Unconstitutional precedents create constitutionality."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Even for this alone, America should be ashamed!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

territorialfilipino — Mon, 12 Jan 2009 02:28:12 CST

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A. TERRITORIAL FILIPINOS MANDATED BY LAW TO OWE ALLEGIANCE TO THE UNITED STATES ARE AMERICAN NATIONALS AT BIRTH NOT ALIENS OF FOREIGN BIRTH
By Article III of the 1898 Treaty of Paris (30 Stat. 1754), concluded 08 December 1898:

"Spain ceded to the United States the archipelago known as the Philippine Islands, and the United States agreed to pay Spain the sum of $20,000,000 within three months. The treaty was ratified; Congress appropriated the money; the ratification was proclaimed. The treaty-making power, the executive power, the legislative power concurred in the completion of the transaction. The Philippines thereby ceased, in the language of the treaty, 'to be Spanish.' Ceasing to be 'Spanish,' they ceased to be foreign country. They came under complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection." (Fourteen Diamond Rings, 183 U.S. 176, 1901)

In 1902, after a period of military rule in the Philippines, the United States Congress enacted the Philippine Government Act (32 Stat. 691), and--

“it was declared that all inhabitants continuing to reside therein who were Spanish subjects on April 11, 1899, and then resided in the Islands and their children born subsequent thereto, 'shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain,' according to the treaty. The citizens of the Philippine Islands are not aliens. See Gonzales v. Williams, 192 U.S. 1, 13 , 24 S. Ct. 177. They owe no allegiance to any foreign government. They were not eligible for naturalization under section 2169 because not aliens and so not within its terms …” (Toyota v. U. S., 268 U.S. 402, 1925)

The U.S. Supreme Court in Barber v. Gonzalez, 347 U.S. 637 (1954) opined that, as regards the respondent, Gonzalez, who “was born in the Philippine Islands in 1913 … It is conceded that respondent was born a national of the United States; that as such he owed permanent allegiance to the United States, including the obligation of military service.”

In support of its view, the Court at Footnote (1) reiterated the pronouncements in several previous decisions:

"From the Spanish cession in 1898 until final independence in 1946, the Philippine Islands were American territory subject to the jurisdiction of the United States." See Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945); "persons born in the Philippines during this period were American nationals entitled to the protection of the United States and conversely owing permanent allegiance to the United States." See Gonzales v. Williams, 192 U.S. 1 (1904); Toyota v. U.S., 268 U.S. 402 (1925)."

In the celebrated case of Decano v. State, 7 Wn.2d 613, 627, 110 P.2d 627 (1941), the Court cited the following decisions:

"Alien is commonly understood and has been judicially defined to be a person who owes allegiance to a foreign government. Ex parte Fung Sing, 6 F. (2d) 670. The 1937 law, as we have pointed out, applies to native Filipinos, although it is well known that, since the Spanish-American War, they have owed allegiance only to the United States. Regardless of whatever uncertainty may have existed as to their precise status, whether quasi-citizens or American nationals, the United States supreme court, in effect, held, as early as 1904, in the case of Gonzales v. Williams, 192 U. S. 1, 48 L. Ed. 317, 24 S. Ct. 177, that they are not aliens.

“In that case, it was decided that citizens of Porto Rico (whose status, with reference to United States nationality, is substantially identical with that of citizens of the Philippine Islands) were not aliens within the meaning of the Federal immigration laws.

“In Toyota v. United States, 268 U. S. 402, supra, decided in 1925, the same court said: "The citizens of the Philippine Islands are not aliens. See Gonzales v. Williams, 192 U. S. 1, 13."

“In 1935, the United States circuit court of appeals for the ninth circuit squarely held, in De La Ysla v. United States, 77 F. (2d) 988, supra, that citizens of the Philippine Islands of the Filipino race are not aliens because, in the language of the opinion: "They owe no allegiance to any foreign government, but do owe allegiance to the United States.’

Other Court opinions have consistently declared that Territorial Filipinos, like the “citizens of Porto Rico, whose permanent allegiance is due to the United States; who live in the peace of the dominion of the United States; the organic law of whose domicile was enacted by the United States, and is enforced through officials sworn to support the Constitution of the United States, are not 'aliens,' and upon their arrival by water at the ports of our mainland are not 'alien immigrants,' within the intent and meaning of the act of 1891“ (Gonzalez v. Williams, 192 U.S. 1, 1904).

So, the Court’s view is clear: Territorial Filipinos are “not aliens,” they are “American nationals” and, upon arrival at a U.S. port of entry, they are to be regarded not as “alien immigrants”; and hence “not eligible for naturalization.”

B. THE STATUS OF TERRITORIAL FILIPINOS AS “NON-CITIZEN NATIONALS OF THE UNITED STATES” AT BIRTH WAS A “CONVENIENT CONSTRUCT” AND “A TERM OF ART” TO RECOGNIZE THEM AS “MEMBERS OF THE NATIONAL COMMUNITY” AND TO DISTINGUISH THEM FROM “ALIENS” OF FOREIGN BIRTH
Oddly enough, the term "national" does not appear in the U.S. Constitution as a definition of political status; rather, under it, one is either a "citizen" or, if not, an "alien."

As defined under the United States Code, specifically Title 8 (Aliens and Nationality), Chapter 12 (Immigration and Nationality), Subchapter I (General Provisions), Section 1101 (Definitions), (a):

“(3) The term ‘alien’ means any person not a citizen or national of the United States.

"(21) 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.

"(23) The term ‘naturalization’ means "the conferring of nationality of a state upon a person after birth, by any means whatsoever."

"(31) The term ‘permanent’ means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.”

Note that the term "permanent" as used in the U.S. Code above does not convey the same meaning the dictionary defines it to be, but a “term” coined to denote its ANTONYM, since the permanence of the “relationship of continuing or lasting nature” can still be “dissolved,” in the same way that the solemn vow “till death do us part” Americans pledge during marriage ceremonies can still be untied by simply filing for a “divorce,” if pleaded “in accordance with law.”

”The term ‘national’ referred to non-citizen inhabitants of territories that the United States had acquired outside of its continental limits who nevertheless owed permanent allegiance to the United States and who were entitled to the United States' protection.“ (See 4 Charles Gordon et al., Immigration Law and Procedure, Sec. 91.01[3][b], at 91-5, rev. ed. 1997.)

The status was a "convenient construct for those who favored territorial expansion but did not wish to make the people of the new territory citizens of the United States 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).

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, cited in Marquez-Almanzar v. INS, 2003).

"The term 'non-citizen national' developed within a specific historical context and denotes a particular legal status. The phrase 'owes permanent allegiance '... is thus a term of art that denotes a legal status for which individuals have never been able to qualify by demonstrating permanent allegiance, as that phrase is colloquially understood." (Ibid.)

In short, the special status of "non-citizen national" conferred upon Territorial Filipinos was a "convenient construct,” a “term of art” applicable only to the people of the newly-ceded territories, recognizing them as “members of the national community”--but not citizens of the United States---to distinguish them from the only other status, “aliens.”

C. UNDER THE 1934 PHILIPPINE INDEPENDENCE ACT, TERRITORIAL FILIPINOS WHO ACQUIRED AMERICAN NATIONALITY AT BIRTH ARE MANDATED TO CONTINUE TO “OWE ALLEGIANCE TO THE UNITED STATES” BUT, UNBELIEVABLY, ARE ALSO TO “BE CONSIDERED AS IF THEY WERE ALIENS”
In 1934, thirty-five years after the United States acquired the Philippines from Spain, Congress adopted the Philippine Independence Act which provided for the adoption of a Philippine Constitution and the withdrawal of United States sovereignty ten years thereafter. (Philippine Independence Act, ch. 84, § 10(a), 48 Stat. 456, 463, 1934, codified as amended at 22 U.S.C. § 1394).

Section 8(a) of the Act states that:

"(1) For purposes of the Immigration Act of 1917 ... and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For such purposes, the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty..."

Section 2 (1) of the same Act, oddly enough, commands that:

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

Thus, under the Act, “citizens of the Philippine Islands,” or Territorial Filipinos, continue to be obligated to “owe allegiance to the United States” and, therefore, remain to qualify as defined to be "nationals" of the United States.

However, there is the glaring anomaly under the same Act which provides that Territorial Filipinos “shall be considered as if they were aliens” and, therefore, subject to “laws of the United States relating to the immigration, exclusion, or expulsion of aliens.”

What is significant in the phraseology employed in Section 8(a)1 is that the words “as if” means “as would be the case if” or ”on the condition or supposition that.” Bartleby.com tells us that the past subjective “were” appears chiefly in “if” clauses … expressing hypothetical conditions” and is used “to describe an occurrence that you have presupposed to be contrary to fact.”

Accordingly, the phrase “as if they were aliens” as used in the Act is obviously intended to convey the sense that “they”--referring to Territorial Filipinos--are NOT, in reality, “aliens.” Designating them under the Act as “aliens” is, therefore, “contrary to fact.” And the fact is that a person who is not an “alien” must be a “national.”

Similarly, the clause “the Philippine Islands shall be considered as a separate country” is merely a supposition “contrary to fact,” since the Philippine Islands at the time the Act was passed in 1934 (until 1946 for that matter) was actually still a U.S. territory “subject to the jurisdiction of the United States.”

The term "naturalization," to repeat for emphasis, means "the conferring of nationality of a state upon a person after birth, by any means whatsoever" and the term "alien" means "any person not a citizen or national of the United States."

So, by definition alone, Territorial Filipinos--who are “American nationals” AT BIRTH for the simple reason that they “owe allegiance to the United States”--can never be classified by any stretch of linguistic imagination as “aliens.” Nor can they be regarded as “alien immigrants,” subject to “the immigration laws of the United States.”

Thus, the Act intentionally creates a confusing, oxymoron status—Aliens owing allegiance to the United States, or American nationals (at birth) eligible to be naturalized (after birth).

For while Territorial Filipinos are commanded in Sec. 2(1) of the Act to "owe allegiance to the United States," and thus qualify as American "nationals" at birth; yet, in Section 8(a)(1) of the very same Act, Territorial Filipinos are to "be considered as if they were aliens" since “the Philippine Islands shall be considered as a separate county,” justifying, as a consequence, the declaration that "the immigration laws of the United States shall apply to persons born in the Philippine Islands," including “naturalization.”

D. DESIGNATING TERRITORIAL FILIPINOS AS ALIENS IN THE PHILIPPINE INDEPENDENCE ACT WAS INTENDED TO ANNUL AND INVALIDATE COURT DECISIONS RECOGNIZING THEIR STATUS AS AMERICAN NATIONALS AT BIRTH
Under the Philippine Independence Act, Territorial Filipinos, mandated to continue to “owe allegiance to the United States,” are the only class of persons who can qualify to be designated the status of both a "national" and an "alien" at the same time!

The underlying intention of those who schemed to downgrade the status of Territorial Filipinos from “American nationals” at birth to the contradiction of “as if they were aliens” was to forbid or deny the “entry” into the United States of Territorial Filipinos.

So, by the Act, Americans were able to enjoy literally the best of both worlds—The “allegiance” of “aliens” together with “Power without Resposibility.” But the clincher to all this inanity is yet to unfold at Section 16 of the Act, declaring that:

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

In other words, “persons who were born in the Philippine Islands,” or Territorial Filipinos,” become subject to “the immigration laws of the United States,” including “all the provisions thereof relating to persons ineligible to citizenship.”

It is obvious that, together with Section 8(a)(1) earlier discussed, this provision was intended to nullify and invalidate altogether at one fell swoop Court decisions that recognized Territorial Filipinos to be “American nationals” at birth and not as “aliens.”

This cleverly-worded provision in Section 16 legalizes the status of Territorial Filipinos as “aliens” not by expressly designating them to be what the U.S. Court decisions have repeatedly declared that they are not, but by subtly inserting the “killer” clause that “persons who were born in the Philippine Islands” were persons born “to the same extent as in the case of other foreign countries,” and hence subject to “the immigration laws of the United States.”

So, to legitimize relegating Territorial Filipinos to the status of “Aliens,” the U.S. Congress simply employed the past tense “were born” and declared the Philippine Islands, the place where they “were born,” to be “to the same extent as in the case of other foreign countries,” even though the Philippine Islands was unarguably not a “foreign” country at the time Territorial Filipinos, and to use the language of the Act, “were born.”

Section 16 amounts to this: Territorial Filipinos “were born” in a “foreign” country; hence, “aliens” subject to U.S. laws on immigration.

But the incongruity is inescapable: The territory of the Philippine Islands became the Republic of the Philippines only on 04 July 1946---after all Territorial Filipinos “were born” already; and this means that all of them “were born” during the period that the Philippine Islands was still undeniably a U.S. territory.

Besides, how can the Philippine Islands be considered as being “to the same extent as in the case of other foreign countries” when the very same Section 16 also speaks of the “withdrawal of American sovereignty in the Philippine Islands”?

The Philippine Islands (from the U.S. viewpoint) became a “foreign” country only after “the withdrawal of American sovereignty” on 04 July 1946. Thus, only Filipinos born after that cut-off date--or the “postnati” (as understood in Calvin’s Case)--should have been the persons placed subject to “the immigration laws of the United States,” not the “antenati,” or Territorial Filipinos, already born “American nationals” before that deciding cut-off date.

So, if the Philippine Islands was to be regarded “to the same extent as in the case of other foreign countries,” what “American sovereignty in the Philippine Islands” was there to “withdraw” if, indeed, the Philippine Islands was really a “foreign” country?

Can the claim of “American sovereignty” legally exist or be exercised in a territory the Americans themselves by a provision of law designate to be a “foreign” country?

Americans may have disowned Territorial Filipinos under the Philippine Independence Act; but the "Philippine Islands" still appears listed (as of 2006) in the United States Code under Title 48 (Territories and Insular Possessions), Chapter 5 (Sections 1001 - 1276e, now "omitted" or "transferred") with the following Chapter Notes:

"Philippine Independence - Independence of the Philippine Islands recognized and American sovereignty withdrawn by Proc. No. 2695, eff. July 4, 1946, 11 F.R. 7517, 60 Stat. 1352, issued pursuant to section 1394 of Title 22, Foreign Relations and Intercourse, under that section."

The above note alone stating that “American sovereignty withdrawn by Proc. No. 2695, eff. July 4, 1946” can only mean one thing: America exercised the rights of sovereignty in and over the territory of the Philippine Islands before “Proc. No. 2695” was issued. And during the time the United States was sovereign (from 1898 to 1946), the Philippine Islands was undeniably not a “foreign” country as declared in the Philippine Independence Act, but a territory or insular possession of the United States.

To appreciate fully the extent and consistency of Court decisions recognizing Territorial Filipinos as “American nationals” that the provisions in the Act invalidated on the basis of a “supposition,” read the following litany of citations already quoted earlier:

--“[The Philippine Islands] ceased to be foreign country. They came under complete and absolute sovereignty and dominion of the United States, and so became territory of the United States”
--“The citizens of the Philippine Islands are not aliens … They owe no allegiance to any foreign government. They were not eligible for naturalization under section 2169 because not aliens and so not within its terms”
--"The Philippine Islands were American territory subject to the jurisdiction of the United States"
--"Persons born in the Philippines 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"
--“Regardless of whatever uncertainty may have existed as to their precise status, whether quasi-citizens or American nationals, the United States supreme court, in effect, held, as early as 1904 … that [Territorial Filipinos] are not aliens.”
--“Citizens of the Philippine Islands were not aliens within the meaning of the Federal immigration laws”
--"The citizens of the Philippine Islands are not aliens”
-- “Citizens of the Philippine Islands of the Filipino race are not aliens because, in the language of the opinion: ‘They owe no allegiance to any foreign government, but do owe allegiance to the United States’
--“[Territorial Filipinos, like the] citizens of Porto Rico, whose permanent allegiance is due to the United States are not 'aliens,' and upon their arrival by water at the ports of our mainland are not 'alien immigrants’“
--The term "National" was "originally intended to account for the inhabitants of … the Philippines, Guam, and Puerto Rico … 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"

Yet, owing to provisions in the Philippine Independence Act, an “American national” at birth, or a Territorial Filipino, is barred from “entry” into the United States without a U.S. Visa and become subject to arrest and deportation if “overstaying.”

The grim irony of this humiliation is that Territorial Filipinos, proudly bearing the Stars and Stripes, validated their allegiance to the United States in gory battlefields of WWII, defending American territory from the onslaught of Japanese invaders, tantamount to barring "aliens" from the land of the rising sun to "enter" the U.S. territory of the Philippine Islands--without a U.S. visa.

E. TERRITORIAL FILIPINOS ARE STATELESS AT BIRTH AND SLAVE-BORN
Actually, at that time in 1934, there would not have been any need for inserting the “supposition” in the cited provisions of the Philippine Independence Act at all; the U.S. Congress could have simply proclaimed that it possesses the power to declare the “political status” of Territorial Filipinos as “aliens;” even if they were born in territory over which the United States is sovereign.

Possession of that awesome power to designate the “political status” of inhabitants in ceded territories is basically what America was claiming under the “Doctrine of Incorporation” at the beginning of its regime in the Philippine Islands, a claim the Courts reluctantly recognized and upheld in the “Insular Cases.”

Territorial Filipinos now challenge that claim.

But why have Territorial Filipinos allowed this injustice, this glaring denial of the privileges and immunities of "American nationals” at birth, to fester unresolved for so long now?

Territorial Filipinos certainly respect, and prefer not to question, the "wisdom" of an Act of the U.S. Congress, as upheld by the Courts, that renders concededly "American Nationals" at birth unduly subject to the "immigration laws of the United States."

Territorial Filipinos have long accepted the reality that America can very well continue the discrimination and the injustice they have openly inflicted upon two generations of Territorial Filipinos born from 1899 to 1946, and continue to disown their status and ignore their existence.

Rather, what Territorial Filipinos are now seeking from America is the recognition of their status at birth, having been born "in territory over which the United States is sovereign," mindful that, unless Congress clothes itself with the robe of the omnipotent "Creator," Territorial Filipinos cannot be commanded to be born again!

They cry for clarification, since the one festering question lingers: To what state were two generations of "Territorial Filipinos" born in during the American Territorial Period from 1899 to 1946 in the light of the fact that America, the sovereign at their place of birth, formally declared the U.S. territory of the Philippine Islands as a separate and independent state--the Republic of the Philippines--only on 04 July 1946?

It is, therefore, safe to conclude that the provisions of the Philippine Independence Act, discussed and cited, intentionally rendered Territorial Filipinos stateless at birth.

The Act may also be regarded as having viewed Territorial Filipinos, not as persons, not even as “colonial subjects,” but simply as “other Property” (as in Dred Scott), incident to, or part and parcel of, the purchase and cession of a “territory.”

For under the Act, the U.S. Congress relegated Territorial Filipinos to a class comparable to a “human chattel,” or to persons who, having been purchased (in this instance for $20 million), are “the legal property of another or others and [are] bound to absolute obedience” (synonymous with “permanent allegiance”), which, mind you, is the dictionary meaning of the term eerily familiar in U.S. history, law, constitution, custom, and tradition, and that is, a “slave” in the sense of involuntary “absolute obedience” or legally mandated “permanent allegiance,” as distinguished from the equally obnoxious term “slavery,” generally defined as "involuntary servitude.”

So, having been born unwanted, disowned, abandoned and neglected by the sovereign at their place of nativity, these questions remain to haunt:

Were Territorial Filipinos born stateless (unrecognized by their state of birth)? Were Territorial Filipinos slave-born (bound at birth to involuntary permanent allegiance and absolute obedience to their state of birth)?

Not content with having coined the absurd status of “non-citizen national of the United States” to designate Territorial Filipinos relying on the "myth" of the "unincorporated territory" doctrine, Congress under the Philippine Independence Act finally relegated them to the status of an “alien,” having been born supposedly in a “foreign” country.

Yet, Court decisions have always conceded that, the territory of the Philippine Islands was “subject to the jurisdiction of the United States,” over which the United States was sovereign and that Territorial Filipinos were “American nationals” mandated to ”owe allegiance to the United States.”

Why, then, were Territorial Filipinos--having acquired their U.S. nationality at birth and, in the words of the U.S. Supreme Court, "entitled to the protection of the United States"--made subject to U.S. immigration laws on the mere supposition (contrary to fact) as worded in the Act that they were “aliens”?

The reason why? Racism, Discrimination and Birthplace Prejudice aborting Birthright Citizenship!

In this regard, the U.S. Congress should be ashamed each time a Territorial Filipino is arrested, humiliated, handcuffed, detained and deported--or, in short, terrorized--for violating U.S. immigration laws, on the basis of a provision that is undeniably a “supposition” embedded in the Philippine Independence Act.

This is the grand “supposition” earlier discussed, arbitrarily designating “American nationals” at birth--Territorial Filipinos--as “aliens” and the U.S. territory of their nativity--the Philippine Islands--as a “foreign” country, designations Congress merely “presupposed contrary to fact,” but to be applied nonetheless with the full force of the law even though inapplicable to them sans that “supposition.”

The U.S. Congress understandably remains adamant and unperturbed, pointing to the myth of “unincorporated territory,” the “Territorial Clause,” the 1898 Treaty of Paris, and the official and judicial reading of the Citizenship Clause to legitimize the glaring racism, discrimination and birthplace prejudice of their acts.

Anyway, to the U.S. Congress, a few more years (it’s now 2006), and Territorial Filipinos will have been all gone to meet their Creator, the Almighty above and beyond, who gifted them with the precious circumstances of their birth--indelible, invulnerable.

To put it bluntly, the U.S. Congress clearly abhorred the idea of assimilating Territorial Filipinos; it was interested only in the territory but not its inhabitants. This view is best expressed in the remarks of Senator G.G. West--typical of those who voted against the ratification of the Treaty of Paris (see Objections to Annexing the Philippines, The North American Review, Vol. CLXVIII, No. 506, 1898):

“I vote against annexing the Philippines because such annexation makes the people of those islands ultimately citizens of the United States, and necessitates the admission of the territory thus acquired a State.

“The idea of conferring citizenship upon the half-civilized, piratical, muck-running inhabitants of two thousand islands, seven thousand miles distant, in another hemisphere and creating a state of the Union from such materials, is so absurd and indefensible that the expansionists are driven by the necessity of advocating the colonial system of Europe …

“… whatever may be the status as to citizenship of the older inhabitants, their children born after annexation are citizens and voters … It being certain from [the Fourteenth and Fifteenth Amendments] that the children of the Filipinos will be citizens and voters, in case of annexation, it follows that they must be educated and civilized in order to fit them for the duties imposed by our jurisdiction over the country.”

“Let the flag of our Republic not be ‘hauled down,’ but brought back to congenial soil where it will wave over freemen, instead of floating over conquered islands in another hemisphere and ten million half-barbarians bought for two Dollars each.”

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SUMMARY

territorialfilipino — Mon, 12 Jan 2009 02:18:31 CST

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)

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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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PART TWO: PERSONS SUBJECT TO THE JURISDICTION ARE PERSONS OWING ALLEGIANCE

territorialfilipino — Sun, 11 Jan 2009 22:34:01 CST

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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

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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:

“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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PART ONE: TERRITORIAL FILIPINOS

territorialfilipino — Sun, 11 Jan 2009 22:32:33 CST

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"A large part of the motivation for the passage of this bill is presumed relief to certain American agricultural industries from competition by Philippine products. We are trustees for these people and we must not let our selfish interest dominate that trust … If we are to predicate the fate of 13,000,000 people upon this motive we should at least not mislead our farmers about it."
-- Pres. Herbert Hoover, Veto Message to Hare-Hawes-Cutting Bill (providing for independence of the Philippine Islands), January 13, 1933, and overriden by Congress on January 17, 1933, but the Philippine Legislature rejected it.

"Citizens of the Philippine Islands shall be considered as if they were aliens."
-- The Philippine Independence Act or Tydings-McDuffie Law (1934)

"In this great struggle of the Pacific, the loyal Americans of the Philippine Islands are called upon to play a crucial role … It is not for me or for the people of this country to tell you where your duty lies. We are engaged in a great and common cause. I count on every Philippine man, woman, and child to do their duty. We will do ours.”
-- Pres. Franklin Delano Roosevelt, Message to the Filipino People, Dec. 28, 1941, after the Japanese attack on Pearl Harbor and Sangley Point, Dec. 7-8, 1941, and before the Fall of Bata-an, April 9, 1942

“I cannot possibly do that, because if I do so, I will be violating my oath of allegiance to the United States”
-- Commonwealth of the Philippine Islands Supreme Court Chief Justice Jose Abad Santos before his execution by the Japanese Imperial Army in May 1942, for refusing to collaborate and join the Puppet Republic.

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A. CESSION BY PURCHASE, NOT AS “SPOILS OF WAR”
The Spanish-American War brings America into Manila Bay to annihilate the Spanish armada commanded by Admiral Patricio Montojo y Pasaron. A “mock battle,” staged later--to uphold “Spain’s honor”--facilitates U.S. occupation of Manila, involving a “secret” deal Belgian Consul "for the last sixteen years in Manila," Edward A. Andre, mediates between Spanish Governor-General Fermin Jaudenes y Alvarez and American Admiral George Dewey.

But the farce is performed a day after the Protocol of Peace is signed; and so, under the Treaty of Paris, while cession of Puerto Rico and Guam, even of Cuba, could be regarded as “spoils of war” (from the distinctively American proverb, “To the victor belong the spoils”); “the Philippines could not be demanded as a war trophy.” Spanish negotiators “eventually yielded” to America’s $20 million bid to purchase and assume “All rights of possession, supervision, jurisdiction, control and sovereignty … in and over the territory and people of the Philippines”--as “prime real estate for coaling stations.”

Filipinos--now also transformed into “prime property” Dred Scotts--are cast into the quagmire America earlier dumps African Blacks and Indian Aboriginals, as Territorial Filipinos “subject to the jurisdiction” of, and obligated to “owe allegiance” to, the new Sovereign and colonizer, America--the return for which the Citizenship Clause “by virtue of natural law” vests the reciprocal obligation of U.S. citizenship upon each and everyone of them so obliged.

Unlike those inked with Indian Aboriginals, the Treaty denies Filipino representation, although Patriot “Katipuneros” of the 1896 Philippine Revolution to oust Spain’s 350-year Rule already encircle what remains of the Spanish forces in Intramuros.

In fact, a few months earlier, Independence of what was then Las Islas Filipinas is proclaimed, a Constitution, a Bill of Rights promulgated, a Republic, a National Flag, a National Anthem inaugurated--a Filipino First in all of Asia until America intervenes.

Denied Treaty participation, Filipinos protest as betrayal American occupation, invoking a Right basic to Democracy, America grossly violates—the consent of Filipinos before being obligated by Treaty to owe allegiance to a new colonizer and sovereign.

B. PHILIPPINE INSURRECTION OR PHILIPPINE-AMERICAN WAR?
The Filipino Revolutionary leader, General Emilio Aguinaldo, determined to pursue Nationhood aspirations, declares "war," for the honorable, righteous recourse left open to peaceful, freedom-loving non-white Filipinos is to owe allegiance by conquest rather than bow and consent in silent, slavish submission to imperialist adventurism.

The U.S. National Archives & Records Administration tags the war merely as the "Philippine Insurrection" by “Insurrectos” who refuse to owe allegiance to the United States and to renounce their loyalty to the Philippine Republic, with the lofty aim to "Christianize" (but Filipinos were Roman Catholics since 1521) and to "civilize" (but University of Santo Tomas is older than Yale and Harvard).

To Mark Twain, it was pure and simple “Imperialism,” or was it genocide? Andrew Carnegie, the steel magnate who financed the Anti-Imperialist League “believed that taking the Philippines was one of the great historic mistakes in American history. And, in fact, Carnegie had the peculiarly American solution for taking the Philippines, what he suggested to McKinley was that he, Carnegie, would personally pay McKinley $20 million to buy the Philippines and then he'd turn them back to the Filipinos. McKinley turned this particular offer down.” (see Anti-Imperialism in the United States, Walter LaFeber, pbs.org)

The Philippine-American War Body Count is grim: Filipinos--200,000 "collateral" Innocents, 20,000 Patriots; Americans--5,000 invaders. The fact that a total of 69 U.S. Army servicemen were awarded the Medal of Honor during the hostilities alone is a sad reminder of its savage ferocity, not to mention the documented cruelties committed.

C. “CRUELTY IS NO LONGER DENIED. IT IS NOW AVOWED AND JUSTIFIED”
In April of 1902, the Philippine Investigating Committee in the U.S. Senate was formed to investigate and publicize U.S. military atrocities in the Philippines. A brief for the Committee, completed on August 29, 1902 and prepared by legal counsels Moorfield Storey and Julian Codman, details the atrocities committed, in particular “water cure” or, it’s current term as used in Iraq, “water-boarding”: (http://en.wikisource.org/wiki/Secretary_Root%27s_Record:%22Marked_Severities%22_in_Philippine_Warfare)

Among the several documents presented is the letter A. A. Barnes, of Battery G, Third United States Artillery, wrote to his brother, March 20, 1899:

“The town of Titatia was surrendered to us a few days ago, and two companies occupy the same. Last night one of our boys was found shot, and his stomach cut open. Immediately orders were received from General Wheaton to burn the town and kill every native in sight, which was done to a finish. About one thousand men, women, and children were reported killed. I am probably growing hard-hearted, for I am in my glory when I can sight my gun on some dark skin and pull the trigger."

Some of the more startling conclusions in the counsel’s brief include:

--“That the destruction of Filipino life during the war has been so frightful that it cannot be explained as the result of ordinary civilized warfare.”
--“That at the very outset of the war there was strong reason to believe that our troops were ordered by some officers to give no quarter [or take no prisoners].”

--“That from the beginning of the war the practice of burning native towns and villages and laying waste the country has continued.”
--“That from a very early day torture has been employed systematically to obtain information.”
--“That the Secretary of War never made any attempt to stop this barbarous practice …”
--“That the statements of Mr. Root’s, whether as to the origin of the war, its progress, or the methods by which it has been prosecuted, have been untrue.”
--“That he [Mr. Root] has shown a desire not to investigate, and, on the other hand, to conceal the truth touching the war and to shield the guilty, and by censorship and otherwise has largely succeeded.”
--“That Mr. Root’s, then, is the real defendant in this case. The responsibility for what has disgraced the American name lies at his door.”

“Cruelty is no longer denied. It is now avowed and justified … The administration has not been sitting in darkness. The Department of War must have known what has been going on. If it has not it can hardly put forward so gross a dereliction of its duty as an excuse for what has been done. Let the opposition keep their eyes on the men in Washington. Then if there is any blood to be shed as payment for maladministration, it will not be the vicarious blood of men who have honestly and bravely done their duty as they saw it.”

(NOTE: SeeBenevolent Assimilation: The American Conquest of the Philippines, 1899-1903 (1984) by Stuart Creighton Miller; The Philippine War, 1899-1902 (2002) by Brian McAllister Linn; and A War of Frontier and Empire: Philippine-American War, 1899-1902 (2008) by David J. Silbey)

(NOTE: See a recent detailed discussion of the atrocities and cruelties by Paul Kramer, The Water Cure at http://www.newyorker.com/reporting/2008/02/25/080225fa_fact_kramer?currentPage=all)

Apologies, anyone? America, of course, continues to confront the horrors of its past, for instance:

The Civil Liberties Act of 1988 granted reparations to Japanese-Americans who had been interned by the United States government during World War II. The Act was signed into law by Pres. Ronald Reagan on Aug. 10, 1988 and granted each of the 60,000 surviving internee about US$20,000 in compensation for actions that were based on "race prejudice, war hysteria, and a failure of political leadership."

The "Apology Resolution" to Native Hawaiians passed by Congress and signed by Pres. William J. Clinton on November 23, 1993 to acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawaii, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii.

D. COMPELLED TO OWE ALLEGIANCE TO THE UNITED STATES
The Political Cartoon in the Philadelphia Inquirer of May 23, 1901 depict “Philippine General Emilio Aguinaldo” (referred to as "Aggie"), following his capture after three bloody years of the Philippine-American War, being forced to read the "Oath of Allegiance" to the United States with the accompanying caption:

“Now let the Boston insurgents follow Aggie's example and take the Oath of Allegiance”

Another Political Cartoon that appeared in Harper's Weekly of April 13, 1901 shows a dejected Aguinaldo holding a poster emblazoned with the “Oath of Allegiance with this caption:

"Now, boys, sign this with me."

The "Boston insurgents" (Inquirer) and "the boys" (Harper's) in the captions of both Political Cartons derisively refer to the Anti-Imperialist League members who opposed annexation of the Philippine Islands and America's War of Conquest.

So, it is clear that the war was, after all, about allegiance--the allegiance Territorial Filipinos were compelled to owe their new sovereign, the United States, the allegiance America bought for $20 million from Spain under a treaty signed and ratified without their participation or consent that their new sovereign was expectedly determined to enforce by whatever means, illegal or immoral.

But the loyalty that allegiance obligates pertains to matters of the mind and heart, of emotions or feelings, as love or hate, even of faith or disbelief, and may thus be likened to Judge Learned Hand’s “The Spirit if Liberty”; and to paraphrase what he said in this regard in 1944 at the height of WWII--

“Liberty [like allegiance] lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”

So, if allegiance, like liberty or even love, “lies in the hearts of men and women,” can the law compel it?

Chief Justice Melville Weston Fuller in Fourteen Diamond Rings (1901) said that, under the provisions of a treaty, allegiance can be coerced, and in the particular case of the Philippine Islands, by purchase:

“By the 3d article of the treaty Spain ceded to the United States 'the archipelago known as the Philippine islands,' and the United States agreed to pay Spain the sum of $20,000,000 within three months. The treaty was ratified; Congress appropriated the money; the ratification was proclaimed. The treaty making power, the executive power, the legislative power, concurred in the completion of the transaction.

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

In fact, a provision in the Tydings-McDuffie Act (1934) expressly commands that “All citizens of the Philippine Islands [Territorial Filipinos] shall owe allegiance to the United States.”

E. BIRTH “IN THE ALLEGIANCE OF THE UNITED STATES ARE NATURAL-BORN CITIZENS”
Nationality attaches at birth, either by place of birth (jus soli) or by blood (jus sanguinis); otherwise, born stateless.

During the same year the 39th Congress enacted the Citizenship Clause in Section1 of the Fourteenth Amendment, Justice Noah Haynes Swayne in U.S. v. Rhodes (1866) held that:

“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.” (bold added)

And he concluded:

“We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”

Birthright rule, of course, comes from English common law. In Calvin’s Case (1608), it established that under English common law, “a person’s status was vested at birth, and based upon place of birth--a person born within the king’s dominion owed allegiance to the sovereign, and in turn, was entitled to the king’s protection.” But “place of birth” must, at the time of birth, occur “within the king’s dominion.” For “Birth and allegiance,” to Justice Swayne, “go together.”

Thus, Calvin’s case declared:

“Neither the climate nor the soil but obedience and still allegiance that makes the subject born.”

In fact, Chief Justice Waite in Minor v. Happersett (1874) said:

“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)

So, to repeat: “All persons born in the allegiance of the United States are natural-born citizens.”

Sadly at that time, Jim Crow was still “separate but equal” with anti-miscegenation and “white supremacy” still the prevailing law of the land. Or is it still, even more?

F. “SHALL BE CONSIDERED AS IF THEY WERE ALIENS,” CONTRARY TO FACT
Not content with that, the U.S. Congress enacted a law inexplicably phrased in the subjunctive mood, which provided that “citizens of the Philippine Islands shall be considered as if they were aliens” or aliens by supposition, contrary to fact. And It is precisely the misreading of the Citizenship Clause that legitimized that “supposition” and rendered them--stateless, without any country, at birth!

The U.S. Congress, of course, was well aware that using words in the classic subjunctive mood, “as if … were,” is a supposition contrary to fact. But its malicious employment (in a provision of law at that) betrays the racist intent, since Territorial Filipinos who were viewed by the Courts as “American nationals” at birth would thereafter be subject to harsh immigration laws applicable only to “aliens.”

G. “LOYAL AMERICANS OF THE PHILIPPINE ISLANDS”
In the early morning hours of Dec. 8, 1941 after devastating the U.S. Pacific Fleet anchored at Pearl Harbor in what was then the U.S. territory of Hawaii, Japanese Zero fighters swooped down and attacked Subic Bay and Sangley Point in the Philippine Islands, another U.S. territory.

America declares war with Japan. Barely two weeks later, 28th December, President Franklin Delano Roosevelt in a Message to the Filipino People--now surprisingly named “the loyal Americans of the Philippine Islands” rather than “the loyal aliens” of a “foreign country”--were called upon “to do their duty” of defending American territory against the onslaught of an invading army (http://www.presidency.ucsb.edu/ws/?pid=16076):

“News of your gallant struggle against the Japanese aggressor has elicited the profound admiration of every American … In this great struggle of the Pacific, the loyal Americans of the Philippine Islands are called upon to play a crucial role. They have played, and they are playing tonight, their part with the greatest gallantry. As President I wish to express to them my feeling of sincere admiration for the fight they are now making … It is not for me or for the people of this country to tell you where your duty lies. We are engaged in a great and common cause. I count on every Philippine man, woman, and child to do their duty. We will do ours.”(bold added)

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

H. ALLEGIANCE VALIDATED IN THE CRUCIBLE OF WAR
These “aliens” performed their “crucial role” admirably well, even to the extent of obeying “Beyond the Call,” validating and ennobling the allegiance they owed to the United States; for these “aliens,” in obedience to the President’s Call to Duty, refused to yield, despite the tragic Fall of Bata-an and the ensuing Death March, while all the other South East Asian colonials crumbled and bowed.

American sovereignty, its constitution and standard, were nowhere in sight, suspended, all over the Land. And, as in every hostile occupation, there will always be the pariah of collaborators; but the open resistance countrywide was totally unexpected by the Japanese. For having been branded by law “as if they were aliens,” Territorial Filipinos certainly had nothing to lose. In fact, it was not their “war” anyway; it was a “war” the United States, their sovereign, declared against Japan. As “aliens,” they could have simply played it safe and cooperated with the invaders, who immediately promised them the “independence” they fought for against the Americans only 40 years earlier.

But, upon Gen. Jonathan Wainwright’s surrender at “the final stand on beleaguered Corregidor,” reflecting “the high morale of American arms in the face of overwhelming odds” (from his Medal of Honor citation); Territorial Filipinos, undaunted, bearing proudly the Stars and Stripes Japan humiliated, spit and torn, unleashed all over the Land a relentless Guerrilla War of Resistance for well over three bloody years--a feat unparalleled in the documented annals of unconventional warfare--opening the window for Gen. Douglas McArthur who fled to Australia to regroup and rearm, counterattack and hasten V-J Day.

I. AMERICANIZED BUT WERE NEVER HISPANIZED
So, why did they not simply toe the line and cooperate? Can this deep loyalty of Territorial Filipinos to their sovereign be attributed to President William McKinley’s oft-quoted imperial policy of “Benevolent Assimilation”--the “Americanization”--of Filipinos, Spain Christianized but miserably failed to hispanize?

For, inexplicably, on the one hand, unlike natives in all of Spain's South American colonies who were completely transformed (including even their aboriginals) into Hispanics during the same colonial period as the Philippines; Filipinos, on the other, fiercely retained their hodgepodge of regional dialects and were never hispanized after close to four centuries of total Spanish domination; but in only less than half a century of United States rule, Territorial Filipinos were totally “Americanized”!

In a word, if “colonial mentality” is to be forever relied on as the convenient scapegoat to justify the “Americanization” of Territorial Filipinos, why did that same “mentality” fail to hispanize the “colonial” Indios in Las Islas Filipinas during the longer, though equally cruel and discriminatory, Spanish period?

Of course, this “assimilation” could only have been made possible by the pioneering saga of the “Thomasite” teachers, who arrived in 1906 to recreate “In Our Image” (Stanley Karnow, 1990) our “Little Brown Brother” (Leon Wolff, 1960), instilling in English democratic aspirations, ideals, values--virtues, mind you, innate to Filipinos (ask Lapu-Lapu, Dagohoy, Andres Bonifacio, Jose P. Rizal, Jose Abad Santos, even Benigno Aquino)--to uphold and revere, to defend and to willingly sacrifice their lives for.

J. LOYALTY AND PALABRA DE HONOR
So, was the steadfast loyalty Territorial Filipinos displayed during the horrors of the Japanese occupation merely a confirmation of Justice Hand’s notion cited earlier here that allegiance, indeed, “lies in the hearts of men and women” and that, “while it lies there it needs no constitution, no law, no court to save it”?

In fact, it was not so much in the tenacity by which Territorial Filipinos struggled to defend American territory (which they regarded rightly as their own as well), but more so in the stoic refusal of Territorial Filipinos countrywide to collaborate with the Japanese--the declared enemy of the sovereign they owed allegiance to, an allegiance owed they were bound to honor, instinctively as Filipinos, and to uphold, even to die for.

And it is in this context that Jose Abad Santos, Supreme Court Chief Justice, Commonwealth of the Philippine Islands, exemplified what the Spanish Palabra de Honor (“word of honor”) meant to Territorial Filipinos (and continues to mean to their posterity as well) in their bold and firm resolve to honor their word once vowed and to redeem their allegiance, as a Call to Duty, whenever pledged.

In May of 1942, before being executed by the Japanese for refusing to head the “puppet” republic his captors would soon be establishing, Chief Justice Abad Santos calmly replied, as he stood beside his son now unabashedly weeping:

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

Indeed, for as Judge Learned Hand continues in “The Spirit of Liberty” cited:

“… yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me and pledge our faith in the glorious destiny of our beloved country.”

So, if the allegiance Territorial Filipinos owed their sovereign, the United States, already lies embedded “in the hearts of men and women”--which “lies hidden in the aspirations of us all” and “for which our young men are at this moment fighting and dying”--can such matters purely emotional as allegiance be just as easily terminated unilaterally by the mere mandate of a law, without even according each and every one of them the opportunity to voluntarily renounce or preserve the allegiance they owed at birth and the birthright it automatically confers--an allegiance owed they defended and preserved proudly in the face of a brutal enemy occupation?

Territorial Filipinos, no doubt, were “persons born in the allegiance of the United States,” an allegiance that was validated and ennobled in the crucible of WWII. Both the Courts and the law agree. But was the Philippines Islands, over which the United States exercised the rights of sovereignty and jurisdiction, included in the phrase “in the United States” in the context of the phrase “All persons born in the United States” appearing in the Citizenship Clause of the Fourteenth Amendment?

K. U.S. SUPREME COURT DECLARES THAT TERRITORIAL FILIPINOS, ALTHOUGH BORN U.S. NATIONALS, BECAME ALIENS ON JULY 4, 1946.
Justice William Brennan in Rabang v. Boyd (1957) said:

“In the Independence Act, the Congress granted full and complete independence to the Islands, and necessarily severed the obligation of permanent allegiance owed by Filipinos who were nationals of the United States. Anything less than the severance of the ties for all Filipinos, regardless of residence in or out of the continental United States, would not have fulfilled our long-standing national policy to grant independence to the Philippine people. See Hooven & Allison Co. v. Evatt, 324 U.S. 652, 674. Section 14 of the Independence Act in clear language applies "to persons who were born in the Philippine Islands." This language demonstrates, and we hold, as did the courts below, that persons born in the Islands, and who thereby were nationals of the United States, became aliens on July 4, 1946, regardless of permanent residence in the continental United States on that date.”

So, under the Independence Act or Tydings-McDuffie law, “persons who were born in the Philippine Islands” and “who thereby were nationals of the United States became aliens on July 4, 1946.”

L. U.S. SUPREME COURT AFFIRMS THAT THE POWER TO ACQUIRE TERRITORY CARRIES WITH IT THE POWER TO PRESCRIBE STATUS OF INHABITANTS, SEVERING TIE OF ALLEGIANCE OWED
Justice Brennan in Rabang continues:

“But the fallacy in the petitioner's argument is the erroneous assumption that Congress was without power to legislate the exclusion of Filipinos in the same manner as "foreigners." This Court has held that ". . . the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be . . . ." Downes v. Bidwell, Congress not only had, but exercised,the power to exclude Filipinos in the provision of 8 (a) (1) of the Independence Act, which, for the period from 1934 to 1946, provided:

"For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except section 13 (c)), this section, and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For such purposes the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty ..."

So, the Court relies on Downes v. Bidwell (1898), declaring that “the power to acquire territory by treaty” implies the power “to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be.” The Court also cites the provision in the Tydings-McDuffie law declaring that Territorial Filipinos “shall be considered as if they were aliens” and the Philippine Islands “as a separate country” with an immigration “quota of fifty.”

However, Justice Douglas dissenting said:

“This Filipino came to the United States in 1930 and he has never left here. If the spirit of the 1931 Act is to be observed, he should not be lumped with all other "aliens" who made an "entry." The Filipino alien, who came here while he was a national, stands in a class by himself and should remain there, until and unless Congress extends these harsh deportation measures to his class."

So, to Justice Douglas, “[t]he Filipino who came while he was a national” belongs to “a class by himself and should remain there.”

M. U.S. CIRCUIT COURTS REJECT THE INTERPRETATION THAT THE WORDS “IN THE UNITED STATES” IN THE CITIZENSHIP CLAUSE INCLUDE THE U.S. TERRITORY OF THE PHILIPPINE ISLANDS
In another case involving the same surname of Rabang, Rabang v. INS (9th Circuit, 1994), similarly in Valmonte v. INS (2nd Circuit, 1998), several Filipino Plaintiffs argued that the words “in the United States” in the Clause include within its coverage the U.S. Territory of the Philippine Islands.

Sadly, the Circuit Courts rejected the validity of that reading; the cases were dismissed, and the Plaintiffs deported. In affirming the harsh deportation in Rabang, the Court said:

“Supreme Court precedent compels a conclusion that persons born in the Philippine Islands during the territorial period were not “born … in the United States,” within the meaning of the Citizenship Clause of the Fourteenth Amendment and are thus not entitled to citizenship at birth.”

In his stirring dissent in Rabang, however, Judge Pregerson asserted forcefully:

“… all persons born within the territory of a sovereign nation and who owe complete allegiance to that nation are deemed “natural born” for purposes of citizenship. Thus, I would hold that persons born in the Philippines during the territorial period--between December 10, 1898 and July 4, 1946--should be considered United States citizens within the meaning of the Fourteenth Amendment’s Citizenship Clause.” (bold added)

And he concluded:

“A review of the relevant authorities ineluctably leads me to conclude that the District Court erred in dismissing Plaintiffs complaints for failure to state a claim, and that the majority opinion erroneously affirms that dismissal. Persons born in the Philippines during the territorial period indisputably were born within the dominion of the United States, and therefore were born ‘in the United States’ within the meaning of the Citizenship Clause. Moreover, neither congressional power to control naturalization and regulate territories, nor the now disfavored doctrine of territorial incorporation, authorizes this Court to deny to the Plaintiffs what the people of this country sought to ensure under the Fourteenth Amendment—the inviolability of the fundamental right to citizenship at birth.”

The authors applaud the depth of Judge Pregerson’s dissent (which covers more pages than the majority decision) and his concern towards rectifying the injustice in depriving “the fundamental right to citizenship at birth” Territorial Filipinos were entitled to.

N. TERRITORIAL FILIPINOS NOW CHALLENGE THE PREVAILING OFFICIAL AND JUDICIAL READING OF THE CITIZENSHIP CLAUSE
It was the Pregerson dissent in Rabang that inspired the authors to embark on a journey of scrutinizing a fundamental right denied to Territorial Filipinos.

What the authors gathered during the studies conducted is that, grammatically read,what SenatorHoward, the author, intendedthe Clause to convey has altogether been incredibly overlooked--a misreading of the phrase “and subject to the jurisdiction thereof” the legal community already reveres as gospel truth.

Unshaken, Territorial Filipino, challenge this official and judicial view of the Citizenship Clause--now stare decisis for well over a hundred years, mindful that:

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

The authors insist that it is a grammatically erroneous reading, emboldened by the words of Irving Brant:

"The most ancient errors are hardest to correct, partly because they become indurated by their antiquity."--The Bill of Rights: It's Origin and Meaning, p. 502 (1967)

Truly, “by their antiquity,” for Territorial Filipinos belong, historically, to a different yet almost forgotten breed of Filipinos, portrayed in many ways to be--

--Filipinos born during the American territorial period between April 11, 1899 and July 04 1946 following the ratification of the Treaty of Paris (concluded December 10, 1898) and the cession of Las Islas Filipinas by the Spanish Crown to the United States of America for 20 million Dollars;
--Filipinos born in the outlying possession and U.S. territory of the Philippine Islands and, by 1934, in the Commonwealth of the Philippines, over which the United States was sovereign;
--Filipinos mandated to “owe allegiance to the United States” and, conversely, “entitled to the protection of the United States”;
--Filipinos over whom the United States exercised the rights of sovereignty and jurisdiction under a policy of “Benevolent Assimilation”;
--Filipinos designated by U.S. laws with the racist oxymoron status of non-citizen ”American nationals” at birth, but to be “considered as if they were aliens” of foreign birth (legalizing a “supposition contrary to fact”), with the sole intent of placing them all, now regarded by law as “aliens by supposition,” and hence subject to U.S. immigration laws.
--Filipinos who validated their “allegiance to the United States,” ennobled its tie to birthright, by defending, as a Call to Duty, American territory against the onslaught of Japanese invaders in gory battlefields of WWII and, proudly bearing the Stars and Stripes Japan humiliated after Bata-an Fell, waged a relentless Guerilla War of Resistance unparalleled in the annals of unconventional warfare.
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NOTES

territorialfilipino — Mon, 27 Oct 2008 07:11:37 CDT

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NOTE A: ON THE CONSISTENCY OF THE LANGUAGE USED IN BOTH POST CIVIL-WAR AMENDMENTS, 13TH AND 14TH
With the Citizenship Clause grammatically read, the two post-Civil War Amendments, 13th (1865) and 14th (1868), can now be viewed to convey consistency, oneness of intent--Equal Protection in TWO areas of concern in relation to the person--“the sanctity of the person”: (1) "in the United States"; and (2) "subject to the jurisdiction of the United States.”

THIRTEENTH: The abolition of Slavery or involuntary servitude inflicted upon persons:
(1) "within the United States"; or
(2) "any place subject to their jurisdiction."

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

Thus, had the Clause been grammatically read as intended, Justice Henry Brown in Downes v. Bidwell (one of the Insular Cases) would not have been justified in arguing that:

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

“Upon the other hand, the 14th Amendment, upon the subject of citizenship, declares only that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place 'subject to their jurisdiction.'”

On the contrary, the Clause Senator Howard and the 39th Congress crafted imposes no “limitation” at all, for under its Second category, citizenship of the United States is “extended” not only to “persons born or naturalized in the United States,” but also upon “all persons” born or residing, “everywhere” (Senator Trumbull) who--in the phraseology of the Thirteenth--are “subject to their jurisdiction.”

NOTE B: ON THE APPLICATION OF JUS SANGUINIS
The legal principle of Jus soli bases “citizenship on place of birth” while Jus sanguinis on the “nationality of one's parents.” (Black's Law Dictionary 775, 5th ed. 1979)

Laudably, the Second category--insofar as the children of U.S. citizens “born abroad” not “in the United States” are concerned--may be viewed in a way as having constitutionally justified the jus sanguinis feature of pre-Fourteenth Amendment laws conferring citizenship status upon children of U.S. citizens “born abroad” under the series of naturalization acts.

This jus sanguinis feature of the Second category is what Chief Justice William Howard Taft also mentioned in Weedin v. Chin Bow (1927), regarding Chief Justice Fuller’s remarks in Wong Kim Ark:

“The attitude of Chief Justice Fuller and Mr. Justice Harlan [in Wong Kim Ark] was that at common law the children of our citizens born abroad were always natural-born citizens from the standpoint of this government, and that to that extent the jus sanguinis obtained here.”

In William Blackstone, Commentaries (1765), the jus sanguinis aspect in English Common Law was also recognized:

“To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”

Thus, recognizing the application of jus sanguinis in the Second category to children of U.S. citizens “born abroad” is still consistent with Senator Howard’s declaration that his draft “will include every other class of persons” and “removes all doubt as to what persons are or are not citizens.”

NOTE C: ON THE TERRITORIAL CLAUSE
Territorial Clause:

"Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."

Clearly, the power granted under the Territorial Clause is delimited only to "the Territory or other Property belonging to the United States," with "Territory"--being joined by the conjunction "or"--merely one kind of a specified "Property," among several unnamed “other Property.”

Is this the general, albeit implied, power over "Territory” or "other Property"--Congress strained taut as mandate—to encroach upon the Sanctity of Persons born in or inhabiting such territory and to arbitrarily "dispose of" them as if these persons were one kind of "Property," like the "Property" named "Dred Scott"?

In Dred Scott v. Sandford (1857), Justice Roger Taney declared that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."

In fact, Justice Edward White in Downes v. Bidwell said that Congress’ power to “dispose of” territory under the Territory Clause refers only to “a mere transfer of rights of property. “
In short, under the Insular Cases, inhabitants and those born in ceded territories are to be treated, not as persons, but as disposable, movable “Property,” for they had “no rights which the white man was bound to respect,” alluding to the manner in which blacks were being treated under Dred Scott.

Justice Brown in Downes added:

“It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people” and that “If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.”

He concluded:

“… the power to acquire territories by treaty implies, not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the ‘American Empire'.”

Congress is concededly empowered under the 1787-framed Territorial Clause to "dispose of and make all needful Rules and Regulations respecting the Territory ... belonging to the United States."

By 1868, however, upon the ratification of the Fourteenth Amendment and in view of the Citizenship Clause in Section 1 thereof (grammatically read), the rules were modified. For even granting such “rules” could be implied in the first place, Congress is now clipped off its power to even imagine that it can still “dispose of” “all persons subject to the jurisdiction of the United States” in “territory … belonging to the United States,” for they are persons the Citizenship Clause in Section 1 of the Fourteenth Amendment now shields with the constitutional armor of inviolability and declared to be "citizens of the United States.”

NOTE D: ON CALVIN'S CASE
As already cited earlier here, “Calvin's Case addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered ‘subjects’ in England.”

The post nati were persons born in Scotland following the descent of the English crown to King James, and, under Calvin's Case, these children were considered “subjects” in England at birth. The parents of these children, or those already “born” and residing in Scotland prior to the descent of the English Crown to King James VI, were the antenati, and it was ruled in Calvin’s Case that the antenati were not to be regarded as “subjects” in England.

Apparently, the same question of the antenati and post nati status of Scottish subjects that hounded Calvin’s Case was readily resolved by Senator Howard’s inclusion of a Second category, for under this category of the Clause, both the post nati and the antenati acquire citizenship of the United States, and in the words of Justice Harlan in Elk, “from and after the moment they become subject to the complete jurisdiction of the United States” at birth or after birth.

NOTE E: ON THE POWER TO NATURALIZE
Chief Justice Fuller, dissenting in Wong Kim Ark cited earlier here, stressedthat:

"... those born [abroad of American parents] are not citizens at all unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized 'in the United States.’” (bold added)

Thus, to Chief Justice Fuller, the authority embodied in the original Constitution was modified by the inclusion of the words “or naturalized in the United States” in the Citizenship Clause, restricting its application only to persons (specifically to “aliens”) “in the United States”--and nowhere else--at the time of their application for naturalization,

Justice Black, with whom Justice Douglas and Justice Marshall join, dissenting in Rogers v. Bellei (1971) similarly argues:

“The majority opinion appears at times to rely on the argument that Bellei, while he concededly might have been a naturalized citizen, was not naturalized "in the United States." This interpretation obviously imposes a limitation on the scope of the Citizenship Clause which is inconsistent with the conclusion expressed above that the Fourteenth Amendment provides a comprehensive definition of American citizenship, for the majority's view would exclude from the protection of that Clause all those who acquired American citizenship while abroad.” (bold added)

So, owing to the conjunction “or,” defined as “introducing the second of two alternatives,” in the phrase “born or
naturalized in the United States,” which joins together the word “born” and the alternative, “naturalized” with the phrase “in the United States” as the determinant for both alternatives, the insertion of the words “or naturalized” may be regarded as having restricted or delimited the power of naturalization only to persons already “in the United States” and not to persons anywhere else--consistent with the reading that only those “born in the United States” are citizens of the United States, however the phrase “in the United States” may be defined by law to mean.

Thus, if a person is deemed not to qualify as a “citizen of the United States” for having been “born” in a place designated as outside of, and not in, “the United States”; that same person who remains in that place so designated as outside of obviously does not also qualify to be “naturalized,” since to be “naturalized” is the “second of two alternatives” of the status conferred by the same determinant “in the United States” and joined to the first alternative “born” by the conjunction “or” which the person is already deemed ineligible to be conferred with under.

Strangely enough, this consistency has not been made to apply in the particular case of the inhabitants of the U.S. territories of the Commonwealth of Puerto Rico and of Guam.

For insofar as the phrase “born … in the United States” is concerned, Puerto Ricans and Guamanians are deemed not qualified to be “citizens of the United States” having been “born” in a place designated as outside of, and not in, “the United States,” being merely “unincorporated” territories; however, as regards the alternative, “naturalized in the United States”--joined by the conjunction “or”-- Puerto Rico and Guam are considered, this time around, to be a place already “in the United States.”

Hence, the inhabitants of both territories are deemed qualified to be “naturalized (although are not qualified to be “born”) in the United States--under what the U.S. Congress refers to as “collective naturalization”--and become statutory, but not Fourteenth Amendment, “citizens of the United States.”

What this means is that: For purposes only of determining “place of birth,” Puerto Rico and Guam are deemed outside of, and not in “the United States”; but for purposes of “naturalization,” they are now suddenly found lying squarely “in the United States.”

Do you not find the logic of this selective application of a constitutional provision somewhat bizarre, even comical ... not to mention racist?

NOTE F. ON THE POWER TO NATURALIZE EVEN "AT BIRTH"
The U.S. Code defines the term “naturalization” to mean “the conferring of nationality of a state upon a person after birth, by any means whatsoever.”

Note it well the limiting keywords “after birth.” Thus, “Collective Naturalization” should cover only those already “born,” say the inhabitants of (or those already “born” in) a newly-ceded territory upon annexation, but definitely the power to naturalize can not include the naturalization of persons at birth, or of those yet to be “born.”

One question, it seems, is enough to underline the incongruity of the power exercised: Even assuming that persons are “in the United States” for purposes of “naturalization,” can the U.S. Congress confer “Collective Naturalization” upon Puerto Ricans and Guamanians “at birth,” when “naturalization” is applicable only “after birth”?

The answer is, unbelievably, Yes! For under the Immigration and Nationality Act (INA), as codified in the United States Code (U.S.C.), the U.S. Congress, indeed, can:

Sec. 302 (8 U.S.C. 1402) declares:

"All persons born in Puerto Rico on or after April11, 1899 ... subject to the jurisdiction of the United States ... are hereby declared to be citizens of the United States."

To that, add Sec. 307 INA (8 U.S.C. 1407):

"(b) All persons born in the island of Guam on or after April 11, 1899 (whether before or after August 1, 1950) subject to the jurisdiction of the United States are hereby declared to be citizens of the United States."

So, does the Territorial Clause, notwithstanding the Citizenship Clause in Sec. 1 of the Fourteenth ratified in 1868, empower Congress to naturalize persons in ceded territories even at birth?
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CONCLUSION: TERRITORIAL FILIPINOS ARE NATURAL-BORN CITIZENS OF THE UNITED STATES

territorialfilipino — Thu, 25 Sep 2008 06:22:03 CDT

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This paper concludes that Territorial Filipinos, or Filipinos born in the U.S. territory of the Philippine Islands during the American territorial period between 1898 and 1946, are natural-born citizens of the United States for the following reasons:

--Territorial Filipinos were all born "subject to the jurisdiction of the United States" and, reciprocally, born "in the allegiance of the United States."

--Territorial Filipinos were all born in territory over which the United States was sovereign, exercising "all rights of possession, supervision, jurisdiction, control or sovereignty in and over the territory and people of the Philippine Islands."

Territorial Filipinos belong to the still-unrecognized, now-forgotten SECOND category of citizens of the United States under the Citizenship Clause of the Fourteenth Amendment, correctly read as the author, Senator Jacob Merritt Howard, intended the Clause he authored to convey--

"All persons subject to the jurisdiction of the United States" at birth or after birth.

Unless voluntary renounced, Territorial Filipinos retain their status they all acquired at birth under the Citizenship Clause of the Fourteenth Amendment as natural-born citizens of the United States.
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