Copy and Send this to Your Congressmen

Citizenship at Birth, or Organized Invasion

citing blackstone

A Few Words About ‘Citizenship at Birth’

The feudal concept of allegiance to a Lord or King by birthplace is from medieval times when wealth was solely in the hands of royalty and the church. The peasant class, or ‘villeins;’ owed complete subjection to the landowner in exchange for protection.

The U.S. Supreme Court changed citizenship law in 1898 relying on old English law, but England had made statutory departures from the feudal concept of allegiance from ‘place of birth’ as far back as 1351. (25 Edw. 3, stat. 2, et seq.) The legal tenet of natural born subjects by sanguinity, through father and mother, was essential to the English Empire while pursuing foreign commerce and colonialism.

The ‘Law of Nations’ by Vattel, a legal authority on Nationality law, noted that a country could only replenish itself with children of its own citizens (§ 212). Both the British Nationality Act of 1772 and our First Uniform Naturalization Act of 1790 determined citizenship of a child followed that of the father, not place of birth. Under both British and U.S. law, a child born on U.S. soil to a British subject was not a U.S. citizen, but British.

In fact, the only reason the ‘jus soli’ was invoked seventy-six years later in the 1866 Civil Rights Act and the 14th Amendment was because freed slaves had no nationality to confer by blood (sanguinity). As property they were determined to be stateless, non-citizens. Citizenship was granted ‘post nati’ because they were ‘born in the United States’ with no ‘foreign subjection,’ and were allegiant to the Union.

However, thirty-years after the ‘born in the United States’ citizenship clause became part of the Reconstruction Acts and our constitution, the U.S. Supreme Court in Wong Kim Ark (1898) decided to abrogate existing treaty with China (The Burlingame Treaty) and statute (Exclusionary Acts, Cooley Act) in order to create a new naturalization law; citizenship at birth to children of alien parents.

In the Wong Kim Ark case (a Chinese cook in his twenties) the court was catering to the Chinese Six Companies, wealthy from the California Gold Rush and commerce, whose great enterprise required more access to Chinese immigrants, and freer passage to and from China. This was hindered by treaty and statute, so the Chinese Companies sued, using Wong Kim Ark as plaintiff.

Original Intent of Congress

When the 14th Amendment was proposed and the ‘citizenship clause’ debated, one senator’s comment illustrates the confusion, even then, over what was the legal foundation for citizenship at birth:

The ancient and indisputable citizenship rule of the British common law was the jus soli, under which a person’s nationality is determined by the place of his birth…. It is clear, of course, that the American colonies and the nation they ultimately established had accepted the precepts of the English common law, as part of the heritage from the mother country. Cong. Globe, 39th Congress, 1st Sess. 1262 (1866) (Congressman Broomall)

However, Congressman Broomall was wrong. How? First, as discussed above, even British law from 1351 to 1772 recognized the rightful inheritance of ‘leigance’ from the father, regardless of place of birth. Secondly, the American states barred reliance on English ‘common law’ as precedent unless specifically codified. And, thirdly; the U.S. Constitution enumerated (Art. I, Sec. 8 Cl. 4) congress plenary power over Uniform Naturalization, not to be revised or misinterpreted by common law or the judiciary.

There were competing opinions then, as now, but in the end the Senate approved the ‘citizenship clause’ determining that the citizenship clause of the 1866 Civil Rights Act defined it correctly:

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 good 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. I regard it as settled by the civil rights bill, and, indeed, in my judgment, it was settled before. . . The Senator from Maine suggests to me, in an undertone, that persons may be born in the United States and yet not be citizens of the United States. Cong Globe 39th Congress (1866) 2768, 2769 Pres. pro tem Senator Wade (OH)

Here is case law, Elk v. Wilkins, 112 U.S. 94 (1884); cited by Wong Kim Ark (1898) but for some reason not followed as precedent:

The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes ( 60 U. S. 73; Strauder v. West Virginia,@ 100 U. S. 303, 100 U. S. 306. This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, [emphasis added]  or collectively, as by the force of a treaty by which foreign territory is acquired. (p. 111) It is also worthy of remark that the language used about the same time by the very Congress which framed the Fourteenth Amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 14 Stat. 27; Rev.Stat. § 1992. (p. 103)

I emphasized ‘proceedings’ because Justice Horace Gray used this word as a logical fulcrum point to move the law in a different direction. However, ‘proceedings’ was perhaps a poor choice of words because while naturalization law proceedings definitely applied to adults changing nationality of their own free will, the new nationality of the parent could have the effect of naturalizing their children and wives. The children did not participate in any ‘proceedings,’ but by natural law and statute followed the allegiance of the father. (The Wong Kim Ark court actually created a conflict of law, dual nationality; a conundrum that continues to complicate Nationality law.)

In 1940, a child born to a U.S. citizen mother abroad to a foreign father could acquire U.S. citizenship, but only if the mother returned to the U.S. and the child completed 5-years continuous residency. However, in 1952 the residency requirement was repealed and the child acquired a ‘post nati’ citizenship at birth. Statutory ‘citizenship at birth’ was discretionary, but no Act of Congress or case law was required if the child was born to a U.S. citizen father, a natural born citizen.

Many fail to make this distinction, conflating for convenience ‘natural born’ and ‘at birth.’ They are different, however; one by Natural Law and the other by statute. This distinction exists and yet the courts and congress refuse to address it.

The point is that the statutes required legal naturalization and residency. Until the Wong Kim Ark case, U.S. naturalization law never conferred citizenship automatically to aliens, be they domiciled legally or illegally.

The Reconstruction Acts of 1866 introduced ‘born in the United States’ in the manner of the ‘jus soli’ for only one reason; because freed slaves as property had no citizenship or nationality to confer to their children. Thus, the language of the 1866 Civil Rights Act specified ‘not subject to any foreign power,’ which is what ‘under jurisdiction thereof’ meant as well in the 14th Amendment.

Here is a law school professor who got it right, very clearly stated, and properly citing the Slaughter-House cases and Elk vs Wilkins, John Eastman, Henry Salvatori Professor of Law and Community Service, at Chapman University’s Fowler School of Law:

Subject to the jurisdiction” means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else. (See in the quote from Sen. Wade where he admits the Civil Rights Act’s ‘without allegiance to any foreign power’ settled the matter of which children born on U.S. soil were not granted citizenship.) New York Times UPDATED December 22, 2015  https://tinyurl.com/ydczevzt
See also http://ashbrook.org/publications/oped-eastman-04-hamdi/

‘Jurisdiction’ is another word abused by the courts. The intent of the lawmakers choosing it was as the converse of ‘not subject to any foreign power.’ Diplomats have almost complete immunity to U.S. law as they are under total jurisdiction of their home country. Native Americans, ‘not taxed,’ had similar sovereignty protections. Travelers and those establishing ‘domicile’ have varying degrees of jurisdiction from both their home country and the United States. They are subject to U.S. criminal code and some tax laws, but they cannot be drafted into military service except by their home country. There is a process required for long term residency and naturalization, and as for any children born in the United States, regardless of any conflicting interpretation of the citizenship clause, the nationality of the parent is still conferred to the child.

Immigrants? Or, Invaders!

A category rarely mentioned, immune to nationality laws, are foreign military forces. My point being, that aliens who enter illegally in order to seek employment, social services, commit crimes, and abuse the misinterpretation of the citizenship clause are no better than invading foreign forces and should be repelled, and not given quarter nor benefits of ‘domicile.’

And ‘invasion’ is not a hyperbole! The illegal immigrant movement is organized both North and South of the border, even helped along by the Mexican government. After all, they are not only infiltrating the United States culturally and politically, but hundreds of billions of dollars come back into their economy every year, and that is not accounting for drug cartels.

A copy of this article should be sent to every congressman, and the president.

Leonard A. Daneman

 

One Response to “Copy and Send this to Your Congressmen”

  1. arnash Says:

    That kind of covers all the high-lites of the matter in the most economical length possible. You are well aware that each of your points could alone occupy an entire exposition, as we’ve both learned by writing extensively on them. The degree of ignorance of our ‘leaders’ is frightening and no doubt non-remedial. But I applaud you effort to shed some badly needed light.

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