In his sponsorship speech of what is now regarded as the citizenship clause that was to be inserted in Sec. 1 of “House joint resolution No. 127” (H.R. 127, a resolution “proposing an amendment of the United States Constitution” later ratified in 1868 as the Fourteenth Amendment), the words “or naturalized” do not appear in the proposed clause the author, Senator Jacob Merritt Howard of Michigan, submitted for consideration to the Senate of the 39th Congress on May 30, 1866:
“Mr. HOWARD. 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.” (Cong. Globe, 39th Congress, 1st Session, p. 2890, 2nd col., May 30, 1866)
NOTE: To access the Congressional Globe, go to: http://lcweb2.loc.gov/ammem/amlaw/lwcglink.html and jump to “39th Congress, 1st Session” and click on the appropriate page number range; then go to the Search Page and type the desired page number in the box and then click on “Turn to image.” The Senate debate begins at p. 2890 and ends at p. 2897.
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').”
The words “or naturalized” were inserted a full week later on June 8, 1866 "after the word 'born'" (3040, 2nd col.), upon motion of Senator William Pitt Fessenden of Maine (Chair of the Joint Committee on Reconstruction) and "agreed to," without any debate, "by general consent."
Hence, sans the words “or naturalized,” the clause Senator Howard proposed that was debated and "agreed to" (2897, 3rd col.) on the same day he submitted it on May 30, 1866 (2890, 2nd col.) simply read as:
“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.”
What readily becomes manifest once the words "or naturalized" are omitted in the clause is the innocuous PAIR OF COMMAS Senator Howard enclosed the phrase “and subject to the jurisdiction thereof” with.
It is in this regard that, hopefully, the Supreme Court will now take advantage of the opportunity afforded by the lawsuits questioning president-elect Obama’s “natural born” status to study more thoroughly the reason behind why Senator James Doolittle of Wisconsin during the debate read the phrase between the commas in this manner:
"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 ..." (2897, 1st col., 2nd par.)
To repeat for emphasis the phrase printed in quotation marks Senator Doolittle quoted as “the language which he [Senator Howard, the author] uses”:
"All persons subject to the jurisdiction of the United States"
Now why would Senator Doolittle ADD the words “all persons” between the conjunction “and” and the words “subject to the jurisdiction thereof”?
Earlier during the debate, Senator Doolittle warned repeatedly of the consequences of "the very language" Senator Howard used:
"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.)
Surprisingly, Senator Doolittle’s direct quotation (printed in quotation marks) of how the phrase was understood to be read in the clause has never been accorded the critical attention and widespread scrutiny it deserves and remains to this day lamentably unnoticed.
In fact, Justice Gray in Wong Kim Ark viewed the phrase “and subject to the jurisdiction thereof” merely as a qualifier of the line preceding it to exclude the “recognized exceptions”--to the extent that "All persons born … in the United States" must at the moment of birth 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.”
Earlier, Justice Samuel F. Miller in the Slaughterhouse Cases (1872) likewise opined:
“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.”
In his sponsorship speech, however, Senator Howard already made it clear that his draft of the clause “will not, of course, include” the “recognized exceptions” Justice Gray speaks of:
“Mr. HOWARD … This amendment which 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, but will include every other class of persons.” (2890, 2nd col.)
So, why would Senator Howard still provide six wasted words in all, at that, to account for “exceptions” already “recognized,” in the words of Justice Gray himself, “from the time of the first settlement of the English colonies in America”--“exceptions,” he emphasized, even “as old as the birthright rule itself”?
Actually, Senator Howard’s remark on the exclusion of the “recognized exceptions” was merely a reiteration of what was already discussed a week earlier (May 23, 1866), concerning a somewhat similar amendment Senate President pro Tempore, Senator Benjamin Franklin Wade of Ohio, proposed to be inserted to the same H.R. 127 that also included a terse definition of citizenship:
"Mr. WADE … No state shall make or enforce any law which shall abridge the privileges or immunities of persons born in the United States or naturalized by the laws thereof.” (2768, 3rd col.)
NOTE: Justice Hugo Black cited Senator Wade's remarks, dissenting in Rogers v. Bellei (1971).
Senator Wade’s proposal was calendared for printing (2770, 1st col.) and referred to the Joint Committee on Reconstruction (set up five months earlier in December 1865 with fifteen members, nine from the House and six from the Senate); thus, Senator Howard’s report on behalf of the committee which included the citizenship clause in section one was basically about Senator Wade’s referred amendment to H.R. 127.
In explaining his proposal, Senator Wade clarified his intent:
“Mr. WADE … In the first section of the proposition of the committee, the word “citizen” is used. That is a term about which there has been a great deal of uncertainty in our government. The courts have stumbled on the subject, and even here, at this session, that question has been up and it is still regarded by some as doubtful … In the first clause of the amendment which I have submitted, I strike out the word “citizen,” and require the States to give equal rights and protection of person and property to all persons born in the United States or naturalized under the laws thereof.” (2769, 1st col.)
And in reply to a 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.)
The Latin maxim quoted, “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 Melville Fuller also had in mind, dissenting (with Justice John Marshall Harlan concurring) in Wong Kim Ark, concerning the “recognized exceptions”:
“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."
So, was the phrase Senator Howard enclosed between the pair of commas in the clause he proposed (that Senator Doolittle quoted) actually intended instead to define another separate, now forgotten, category of citizens of the United States--“All persons subject to the jurisdiction of the United States”--to read:
“All persons born in the United States, and [all persons] subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
If so, then, grammatically analyzed, the phrase, "and subject to the jurisdiction thereof," was deliberately punctuated to act, not as a qualifying phrase of the element preceding it (“All persons born in the United States”) as mistakenly viewed in Wong Kim Ark, but as the SECOND of a COMPOUND SUBJECT in the clause that Sen. Howard structured as an ELLIPTICAL for the complete construction Senator Doolittle quoted, "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, recoverable or inferable from the same main noun phrase, "All persons," in the FIRST subject of the compound it is coordinate with, joined together by the conjunction "and."
NOTE: An “ellipsis” is defined as “the omission of a word or words readily understood from the context.”
NOTE: A “comma-plus-coordinating-conjunction (…and…)” is “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.” [Robert Brittain [sic] in Correct Punctuation (1997)]
Understandably faced with the difficulty encountered in phrasing a "repeated subject" in a "coordinate” configuration, Senator Howard enclosed the phrase, "and subject to the jurisdiction thereof," between a PAIR OF COMMAS (inserting the crucial FIRST COMMA before the coordinating conjunction "and" to avail of the grammatical device of an ELLIPTICAL) to underline his intention that the phrase is to be read as "NON-RESTRICTIVE," to distinguish it from being confused later as "RESTRICTIVE" (without the commas)--grammatically, a qualifier of the element preceding it--which is how Wong Kim Ark erroneously read the phrase, despite the pair of commas enclosing it.
NOTE: “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.” [The Elements of Style by Strunk (1918)]
In this context, a "restrictive" phrase is what Senator Lyman Trumbull of Illinois, employed in a similar clause in the Civil Rights Act of 1866 that the same 39th Congress enacted (overturning President Andrew Johnson’s veto) barely two months earlier, by omitting the comma before the conjunction "and" (http://www.supremelaw.org/ref/1866cra/1866.cra.htm):
"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."
Owing to the omission of the comma before the conjunction "and" in the Act, the phrase "not subject to any foreign power" following it is undoubtedly to be regarded as "restrictive," a "qualifying" phrase of the element preceding it, "All persons born," which is how the author intended it to be read.
Incidentally, it is the synonymity of the phrases “and subject to the jurisdiction thereof” in the clause with that in the Civil Rights Act, “and not subject to any foreign power” enacted two months earlier that was cited to justify the “qualifying” phrase reading in Wong Kim Ark, particularly the remarks of Senator Reverdy Johnson of Maryland during the debate:
"Mr. 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. (2893, Col. 02)
On the other hand, however, the author of the Civil Rights act himself and co-author of the clause as Judiciary Committee Chair, Senator Trumbull, insisted in response that--
"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.)
Senator Johnson, of course, was merely voicing his opinion:
"Mr. JOHNSON. But at any rate, without expressing any decided opinion to that effect, as I would not do when the honorable member from Illinois [Senator Howard] is so decided in the opposite opinion, when the honorable member from Wisconsin [Senator Doolittle], to say nothing of myself, entertain a reasonable doubt.” (2893, 3rd col.)
Even if both phrases appearing in the clause and in the Act (negatively worded) are deemed synonymous (and they indeed are); however, what matters is how they are employed grammatically as punctuated. Thus, enclosing the phrase “and subject to the jurisdiction thereof” in the Clause within 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.
But, as it turns out now, it may just have been this very perception of synonymity between the two phrases in the clause and the Act that may have contributed greatly to the confusion and the mistaken reading of the phrase in the clause (that may yet turn out to be a monumental reading error).
Actually, not content with just one elliptical, there is a second; for Senator Howard employed another ELLIPTICAL in structuring the other compound in the clause--the COMPOUND object of the linking verb “are”--"citizens of the United States and [citizens] of the State wherein they reside," with the second REPEATED object “citizens,” common to both and likewise joined together by the coordinating conjunction “and,” OMITTED rather than stated or repeated, again, for brevity or style, as in the compound subject of the clause.
Senator 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.
(NOTE: See English Grammar rules at http://englishplus.com/grammar/00000088.htm and http://encyclopedia.thefreedictionary.com/Elliptical+construction)
This matter, of course, should best be left to grammarians to definitively resolve; but since it was the same 39th Congress and its Committee on Style that edited these similarly-phrased provisions in the Act and the clause, written barely two months apart, would they have applied the same elementary English grammar rule selectively?
What needs to be stressed is that the phrase Senator Doolittle quoted, “All persons subject to the jurisdiction of the United States” is actually the generic definition of what constitutes citizenship of the United States (call it a SECOND category) that even includes within its reach the jus soli (call it the FIRST) category in the draft of the clause Senator Howard proposed: “All persons born in the United States.”
It is generic in the sense that there is no territorial or time limitation whatsoever; for, irrespective of whether the person is “in the United States” (however defined) or in any place elsewhere, the phrase proclaims that “all persons subject to the jurisdiction of the United States” AT BIRTH (natural born) or AFTER BIRTH (naturalized) are citizens of the United States.
In fact, a SECOND category recognizing as citizens of the United States “all persons subject to the jurisdiction of the United States,” in particular AFTER BIRTH, obviously explains the reason behind why, as earlier discussed, Senator Howard did not bother to include the words “or naturalized” in his draft (although Senator Wade’s referred proposal that was the subject of Senator Howard's report already included these words); for its inclusion would have provoked a superfluity, since aliens applying to become "naturalized citizens of the United States" (after birth) are actually petitioning to be placed “subject to the jurisdiction thereof.”
Interestingly, the most telling argument for the recognition of a Second category comes from the remarks of no other than the author, Senator Howard, himself concerning this omission of the words “or naturalized” in his draft. For in the course of his objection to Senator Doolittle’s proposal to insert the words, “excluding Indians not taxed” (2890, 3rd col.), Senator Howard mentions “naturalization” several times over during the debate--although the words “or naturalized,” to repeat, were inserted a full week later, after the debate:
“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.)
“Mr. HOWARD … 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. (2895, 2nd col.)
“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.)
“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.)
Note that Senator Howard here speaks of "the whole Indian population"--which obviously refers to Indians already born--to be naturalized "in the shape of the imposition of a tax" AFTER BIRTH.
So, if, as claimed under Wong Kim Ark, the phrase “subject to the jurisdiction thereof” merely acts as a qualifier of the element preceding it, “All persons born” or AT BIRTH--which was proposed to be qualified further by Senator Doolittle’s amendment, “excluding Indians not taxed”--why would Senator Howard contradict himself by 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” of persons already born or AFTER BIRTH?
In fine, if the clause Senator Howard proposed, as claimed, is solely about the status that initially attaches AT BIRTH, why would he mention over and over the term “naturalization”--the status acquired AFTER BIRTH--as the “direct effect” of a phrase that Wong Kim Ark opined was intended merely to qualify the circumstance AT BIRTH?
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 “qualifying phrase” to “All persons born in the United States,” but as a distinct and separate SECOND category of citizens of the United States at birth or after birth.
This is precisely what Justice John Marshall Harlan (Justice William Woods concurring), dissenting in Elk v. Wilkins (1884), said in response to the majority holding 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.”
To buttress his dissent, Justice Harlan cited the remarks during the debate of the co-author of the clause as Judiciary Committee Chair and sponsor of the 1866 Civil Rights Act, Senator Lyman Trumbull of Illinois:
“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 birth; rather, they all point to persons already born, “who come completely within,” or are “brought under,” the jurisdiction of the United States after birth.
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.”
Also worthwhile mentioning at this point is this statement by Senator Howard a week before he submitted the clause and prior to Senator Wade’s proposal cited earlier here (May 23, 1866):
“MR. HOWARD. With a view … to put the citizens of the several States on an equality with each other as to all fundamental rights, a clause was introduced in the Constitution declaring that ‘citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.’
“The effect of this clause was to constitute ipso facto the citizens of each one of the original States citizens of the United States. And how did they antecedently become citizens of the several States? By birth or naturalization. They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States as were born in the country or were such by naturalization.” (p. 2765, 2nd col.)
Take careful note of the phrase “in virtue of national, or rather of natural law” which is practically what Senator Howard also said in his sponsorship speech a week later, particularly the line that follows:
“… which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States as were born in the country or were such by naturalization.”
Here, underscore the line “persons born within the jurisdiction of every country as being subjects or citizens of that country.” Is this not what the second category in the clause likewise recognizes as citizens of the United States: “All persons subject to the jurisdiction of the United States”?
Note, too, that, as in the clause he drafted a week later, Senator Howard already recognizes the other categories--“as were born in the country or were such by naturalization.”
This reading of the clause recognizing TWO categories of U.S. citizenship acquisition 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.”
The SECOND category, to repeat, declares that: “all persons subject to the jurisdiction of the United States” at birth or after birth are citizens of the United States, which no doubt satisfies fully the criteria Senator Howard himself proclaimed in his speech above; for, other than those “born in the United States,” this category alone--
--“will include every other class of persons”
--“settles the great question of citizenship”
--“removes all doubt what persons are or are not citizens of the United States”
In fact, overly confident of the all-embracing reach of the phraseology in the clause he crafted, Senator Howard during the debate underscored the importance of this “great question of citizenship” that his draft was intended to resolve once and for all, by bluntly reminding his colleagues that the sanctity of citizenship of the United States would now be finally enshrined in the Constitution, well “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.” (p. 2896, 3rd col.)
Senator Howard’s remark is clearly a broadside on Sen. John Caldwell Calhoun's theory of citizenship ("Slavery A Positive Good," 1837) that “States were sovereign entities”; hence, "National citizenship depended upon state citizenship" and, slaves, being held as "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. Sen. Calhoun, of course, based his theory on the claim that, “since blacks were not citizens of the southern states, they could not claim national citizenship.”
Justice Miller in the Slaughterhouse Cases mentioned Sen. Calhoun's "doctrine":
“The doctrine of the 'States-Rights party,' led in modern times by Mr. Calhoun, was that there was no citizenship in the whole United States, except sub modo and by the permission of the States … The fourteenth amendment struck at, and forever destroyed, all such doctrines … The tie between the United States and every citizen in every part of its own jurisdiction has been made intimate and familiar.”
So, is the Wong Kim Ark view which reads the phrase enclosed between the pair of 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 of the United States"?
Unfortunately, the Wong Kim Ark view, on the contrary, unsettles rather than "settles" and intensifies rather than "removes all doubt" concerning "the great question of citizenship."
Besides, does the Wong Kim Ark reading include “every other class of persons” already declared or recognized at that time in 1866 to be citizens of the United States, other than the class of “persons born in the United States”?
Certainly, it does not. For. other than the already “recognized exceptions,” 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 (anchor babies included), irrespective of parentage, race, color, creed or purse.
In this regard, take careful note that, at the time the clause was debated in 1866, “by virtue of … national law” (the Naturalization Act of 1855, amending similar “national laws” since 1795), the class of children of U.S. citizens “born out of the limits and jurisdiction of the United States shall be considered as citizens of the United States.”
Sadly, as read under Wong Kim Ark, these children “born abroad” may not be, owing to the conjunction “or” joining the two alternatives “born” and “naturalized” (inserted later) with a common prepositional phrase modifier “in the United States”; and the reason, grammatically, is that, if these children do not qualify as having been “born … in the United States,” they are similarly required under the clause to be “in the United States” at the time they petition to be “naturalized in the United States”--and not anywhere else abroad “out of the limits and jurisdiction” thereof.
And this is what Chief Justice Fuller observed, dissenting, in Wong Kim Ark:
“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.”
Chief Justice Fuller later clarifies his grim assessment concerning the class of children of U.S. citizens born abroad “because,” in his words, “they are not naturalized 'in the United States”:
“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.'”
Justice Harry Blackmun in Rogers v. Bellei (1971) held that same view: “born abroad”; hence, “not naturalized in the United States”:
“The central fact, in our weighing of the plaintiff's claim to continuing and therefore current United States citizenship, is that he was born abroad. He was not born in the United States. He was not naturalized in the United States …”
In other words, as provided in the citizenship clause, a person (an alien) must be "naturalized in the United States"--not abroad but only "in the United States" at the time of naturalization--in the same way that a person must be "born ... in the United States" not abroad at the moment of birth.
So, under the Wong Kim Ark reading of the clause, was Senator McCain "born ... in the United States"? If not, could he claim to having been "naturalized in the United States" at the time he was born in the Panama Canal Zone? But does the power to naturalize, as defined, carry with it the authority to naturalize persons at birth?
In any case, bound by stare decisis, the “qualifying phrase” view Wong Kim Ark enunciated 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 denial of the Right to Citizenship of a still-unrecognized, over-looked category of now-disowned constitutional citizens of the United States at birth.
And these include President-elect Barack Obama (born in Kenya?) and Senator John McCain (born in the Panama Canal Zone), who are lumped together with the children of U.S. citizens “born abroad” and regarded merely as revocable “statutory” citizens of the United States, not to mention those born or residing in ceded territory--incorporated or unincorporated (Insular Cases) notwithstanding--from and after the moment they become “subject to the jurisdiction of the United States” by treaty, purchase or conquest.
Nonetheless, in the light of what has been presented here, it is clear that the author, Senator Howard had it all figured out, by wisely providing in the clause what should constitute citizenship of the United States, other than those “born in the United States,” by proposing a SECOND category of citizens of the United States--“all persons subject to the jurisdiction of the United States,” at birth or after birth, that Senator Doolittle directly quoted during the debate, which is the complete construction for the elliptical Senator Howard employed in his draft, “subject to the jurisdiction thereof” and Justice Harlan, dissenting in Elk, suggested, at least “in respect of persons born” in the United States.
Thus, the original draft of the clause Senator Howard proposed that the Senate “agreed to” on May 30, 1866 and subsequently ratified in 1868 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.”
To digress, Senator Howard may have been prodded to include in his draft of the clause the phrase “[citizens] of the State wherein they reside” (left out earlier in the Civil Rights Act) by the speech Senator Garrett Davis of Kentucky delivered on April 6, 1866 in support of President Johnson’s veto of the Civil Rights Bill:
“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 … 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)
Thus, the TWO categories of citizens of the United States conferred under Senator Howard's proposal are:
First category – All persons born in the United States
Second category – All persons subject to the jurisdiction of the United States
And by the insertion of the words “or naturalized” after the word “born” upon its amendment a week later on June 08, 1866, a third category was included:
Third category – All persons naturalized in 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 and national law":
AT BIRTH (Natural born):
01. Persons born abroad of U.S. citizens (either or both parents).
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.
AFTER BIRTH (Naturalization):
01. Inhabitants residing 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 who opt to renounce (rather than preserve) the allegiance they owe 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.
Thus, collating, the clause Senator Howard proposed, indeed, “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States” by consolidating “every other class of persons,” apart from “All persons born in the United States,” already recognized “by virtue of natural law and national law” at that time in 1866 to be citizens of the United States, into just one separate Second category. And, by “the very language” he crafted to define them with, Senator Howard was able to achieve the sought-for “desideratum in the jurisprudence and legislation of this country” by declaring that--
All persons subject to the jurisdiction of the United States at birth or after birth are citizens of the United States.
With the Citizenship Clause grammatically read as Senator Howard intended it to mean, 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"
Senator Howard in his sponsorship speech contends that the citizenship conferred under the clause he proposed “is simply declaratory of what I regard as the law of the land already … by virtue of natural law”:
“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." (2890, 2nd col.)
But what “natural law” is Senator Howard talking about?
During the debate, Senator Trumbull (co-author as 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 ... 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.)
Senator Trumbull’s definition of the phrase as equivalent, negatively, to “not owing allegiance to anybody else” is significant considering that, during the same year the clause was debated and “agreed to” in 1866, Justice Noah Haynes Swayne “sitting in the circuit court” in U.S. v. Rhodes, as cited in Wong Kim Ark, 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), also cited in Wong Kim Ark, 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."
Justice Gray further cites “The supreme judicial court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall” in Gardner v. Ward (1805):
“… 'that 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 Gray then cites 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.”
Justice Gray in Wong Kim Ark (1898) confirms “the fundamental principle” of “birth within allegiance”:
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance … of the king … Such allegiance and protection were mutual.”
Justice Gray, of course, was relying on Blackstone’s, 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 … Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.”
"This fundamental principle,” in the words of Justice Gray in Wong Kim Ark, “was clearly, though quaintly, stated in the leading case known as 'Calvin's Case,' or the 'Case of the Postnati,' decided in 1608 … and reported by Lord Coke.”
As regards Calvin’s Case, Polly J. Price in Natural Law and Birthright Citizenship in Calvin’s Case (9 Yale J.L. & Human, 1997) noted: (http://www.uniset.ca/naty/maternity/9YJLH73.htm)
“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.”
In Calvin’s Case (Calvin v. Smith, 77 Eng. Rep. 377, 1608), Sir Edward Coke held: (http://www.uniset.ca/naty/maternity/77ER377.htm):
--“That ligeance or obedience of the subject to the Sovereign is due by the law of nature.”
--“That they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens.”
--“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.”
Thus, in Calvin’s Case, persons “born” under the “allegiance” that “is due by the law of nature,” meaning "natural allegiance," are “natural subjects” or “NATURAL BORN.”
Lord Coke summarized “this fundamental principle” of the common law by proclaiming:
“… it is nec cœlum, nec solum, neither the soil, but ligeantia and obedientia that make the subject born” or, in short:
“It is neither the climate nor the soil but allegiance and obedience that make the subject born.”
Lord Coke’s "belief on the authority of divine law," as the basis for his 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 “Divine Right of Kings” during that historical period.
As in the notion behind the term "natural born"--the "compulsion of obedience" by the "legitimation of authority" ("allegiance and obedience that make the subject born")--the doctrine of "Divine Right of Kings," or "the idea that monarchs are divinely chosen," was similarly “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” as espoused by James VI of Scotland (later to be crowned James I of England too) in "The Trew Law of Free Monarchies: The Reciprock and mutuall duetie betwixt a free King and his naturall Subjects," published in 1598.
(http://history.wisc.edu/sommerville/367/367-04.htm)
In the light of these citations, what Senator Trumbull was actually conveying in his definition of the phrase is that “owing allegiance” is the “reciprocal obligation” mandated "by virtue of natural law" in return for the “protection” extended to persons “subject to the jurisdiction of the United States” and, additionally, in compensation for the attendant rights, privileges and immunities citizenship of the United States guarantees such persons to enjoy at birth or those admitted after birth.
What can gleaned from all this is that the definition of the term “natural born” is rooted, after all, in the notion of ALLEGIANCE--the “allegiance” a person is obligated “by virtue of natural law” (Senator Howard), or the “allegiance” that “is due by the law of nature” (Lord Coke), to owe the Sovereign at birth (“birth and allegiance go together”), which, of course, means that the term “natural born” is actually a shortened form of “natural [law] born.”
Thus, the term “natural born citizen” of the United States as used in Article II in relation to the clause may be defined as a person, by virtue of NATURAL LAW, BORN obligated to owe allegiance to the Sovereign, the United States, in return for the reciprocal protection the United States, as the Sovereign, affords persons subject to their jurisdiction and in compensation for the attendant rights, privileges and immunities the status of citizen of the United States guarantees persons so obligated to owe allegiance thereto at birth, reciprocally, to enjoy.
Allegiance owed to the United States, in fact, becomes the unifier, the equalizer, of the two distinct class of citizens--the natural born and the naturalized--for the obligation of allegiance that initially attaches “by virtue of natural law” to the "natural born citizen" at birth is the same obligation of allegiance an alien is mandated “by virtue of national law” to pledge under oath to be admitted as a "naturalized citizen" after birth, renouncing the allegiance the alien owes to any other.
Allegiance, therefore, may be regarded as the sole, generic determinant to citizenship of the United States, for it is this allegiance pledged to the United States that distinguishes a citizen of the United States--natural born (allegiance owed at birth) or naturalized (allegiance sworn to after birth)--from an alien who owes allegiance to a foreign power.
Thus, having been born of parents "subject to the jurisdiction" and, “by virtue of natural law,” reciprocally, "in the allegiance," of the United States, which falls squarely under the still-unrecognized category enclosed between a pair of commas in the Citizenship Clause of the Fourteenth Amendment, grammatically read as the author, Senator Jacob Merritt Howard, intended it to convey--
President-elect Barack Obama and Senator John McCain are "natural born” citizens of the United States.
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NOTE: NON-CITIZEN NATIONAL OF THE UNITED STATES
Under current law, 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.”
For, 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.
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." [Charles Gordon et al., Immigration law and procedure (1997), cited in Marquez-Almanzar v. INS (2003)].
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 (1978)].
[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)]
By brashly denying citizenship to a defined class of persons who “owes permanent allegiance to the United States,” this designation openly mocks the constitutional significance of allegiance to citizenship.
It was imperative that this unwanted class of despised persons--who are doubtless "subject to the jurisdiction of the United States" and, reciprocally in return, owe allegiance thereto--had to be assigned an "identity," other than citizen or alien, as a legal way of segregation; otherwise, STATELESS at birth, even after birth, since they could not anymore be regarded under the Thirteenth Amendment as "property."
In any case, this degradation is pure and simple RACISM.
What is disconcerting to note is that aliens who renounce their allegiance to a foreign power they acquire AT BIRTH and apply for naturalization by pledging allegiance to the United States AFTER BIRTH become Fourteenth-Amendment-naturalized-citizens-of-the-United-States.
So what is the difference between the allegiance an alien pledges AFTER BIRTH and the allegiance a non-citizen national owes AT BIRTH?
Is the "intensity" of the allegiance to the United States aliens are mandated to owe after birth superior to (or greater than) that of the allegiance to the United States "non-citizen nationals" owe at birth?
And since allegiance is an emotional state of mind--a feeling, a sentiment--how is the "intensity" of the allegiance a person owes the United States measured? Will it be determined on the "rational basis" of race, color, creed, or purse, even "place of birth"?
More incongruous, even comical, is the case of the “non-citizen national” at birth who applies for naturalization to be admitted as citizen of the United States after birth.
Will the “non-citizen national”--who already owes “permanent allegiance” to the United States” at birth--be required to take the oath of allegiance again after birth?
Besides, what allegiance to a foreign power will the “non-citizen national” be required to renounce in order to be admitted as citizen of the United States?
Thus, by coining the term "non-citizen national of the United States," allegiance has ceased to become the determinant to citizenship, although "birth within the allegiance," as reiterated in Wong Kim Ark, is "the fundamental principle in common law" and aliens can only become citizens once they swear to owe that same allegiance.
In any case, note that, persons who owe allegiance to the United States--the “natural born” (including the "anchor babies" of undocumented aliens), the "naturalized" and the "non-citizen national"--are equally obligated, among other duties and responsibilities, to:
--“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.”
This litany of reciprocal duties and obligations imposed individually upon ALL persons owing allegiance to the United States seems to have been conveniently ignored and forgotten by those advocating the denial of U.S. citizenship to "non-citizen nationals" and the “anchor babies” of undocumented aliens.
These different class of persons have one thing in common--violation or betrayal of the allegiance they owe to their sovereign, the United States, is TREASON.
Lawmakers should thus heed Senator Howard's caveat during the debate:
"Mr. HOWARD ... We desired to put this question of citizenship and the rights of citizenship and freedmen beyond the legislative power."
The status of "non-citizen national of the United States," as defined, is an oxymoron and should be deleted!
