PART ONE
TERRITORIAL FILIPINOS
AMERICAN NATIONALS AT BIRTH AMERICA DISOWNED
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A. COLONIAL MENTALITY AND THE RIGHT TO U.S. CITIZENSHIP
B. TERRITORIAL FILIPINOS MANDATED BY LAW TO OWE ALLEGIANCE TO THE UNITED STATES ARE AMERICAN NATIONALS AT BIRTH NOT ALIENS OF FOREIGN BIRTH
C. 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
D. 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”
E. 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
F. TERRITORIAL FILIPINOS ARE STATELESS AT BIRTH AND SLAVE-BORN
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PART TWO
TERRITORIAL FILIPINOS
NATURAL-BORN CITIZENS OF THE UNITED STATES
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A. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS READ OFFICIALLY AND JUDICIALLY AS A “QUALIFYING PHRASE” OF THE ELEMENT PRECEDING IT, “ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES”
B. U.S. CIRCUIT COURTS REJECT THE INTERPRETATION THAT THE WORDS “IN THE UNITED STATES” INCLUDE THE TERRITORY OF THE PHILIPPINE ISLANDS
C. TERRITORIAL FILIPINOS CHALLENGE THE PREVAILING OFFICIAL AND JUDICIAL READING OF THE CITIZENSHIP CLAUSE
D. THE CONJUNCTION “OR” JOINS THE WORDS “BORN” AND “NATURALIZED”
E. THE WORDS “OR NATURALIZED” WERE INSERTED LATER
F. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS ENCLOSED WITHIN A PAIR OF COMMAS
G. COMPARING THE CITIZENSHIP CLAUSE WITH A SIMILAR PROVISION IN THE 1866 CIVIL RIGHTS ACT ENACTED TWO MONTHS EARLIER BY THE SAME 39TH CONGRESS
H. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS NON-RESTRICTIVE
I. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS THE SECOND OF A COMPOUND SUBJECT
J. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS AN ELLIPTICAL
K. U.S. SENATE DEBATE CONFIRMS THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” TO BE AN ELLIPTICAL FOR “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
L. THE ELLIPTICAL PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” DEFINES A STILL-UNRECOGNIZED CATEGORY OF CITIZENS OF THE UNITED STATES—“ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
M. TERRITORIAL FILIPINOS ARE PERSONS “SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
N. UNDER THE CITIZENSHIP CLAUSE, TERRITORIAL FILIPINOS (THE ANTENATI AND THE POSTNATI) ARE CITIZENS OF THE UNITED STATES
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PART THREE
TERRITORIAL FILIPINOS
PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES
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A. THE CITIZENSHIP CLAUSE IS “DECLARATORY OF … THE LAW OF THE LAND ALREADY … BY VIRTUE OF NATURAL LAW AND NATIONAL LAW,” AFFIRMING THE COMMON LAW BIRTHRIGHT RULE--“BIRTH WITHIN THE REALM AND WITHIN THE ALLEGIANCE”
01. Natural Law--The Common Law Rule on Birthright Citizenship.
02. “National Law”--Birth Within the Realm and Within the Allegiance.
03. The Law of the Land.
B. THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” DOES NOT REFER TO A DEFINED TERRITORIAL LIMITATION BUT TO “PERSONS OWING ALLEGIANCE TO THE UNITED STATES”
C. THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” WAS PHRASED TO “INCLUDE EVERY OTHER CLASS OF PERSONS”
01. Children of U.S. citizens born abroad.
02. Children of U.S. born female citizen married to a foreigner.
03. Persons in the Territories or in the District of Columbia.
D. THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” CONFERS U.S CITIZENSHIP UPON PERSONS NOT ONLY AT BIRTH BUT ALSO AFTER BIRTH
01. The “Antenati”
02. The “Post Nati”
E. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” WAS NOT INTENDED, AS CLAIMED OFFICIALLY AND JUDICIALLY, TO DISQUALIFY THE “RECOGNIZED EXCEPTIONS” UNDER COMMON LAW
01. Children of diplomats are already excluded in the Jus Soli principle.
02. It was Justice Miller--not the author Senator Howard--who said that the phrase was intended to exclude the children of diplomats.
03. It was not necessary to provide for the “recognized exceptions.”
04. If the phrase was intended to exclude the children of diplomats, why not exclude the children of “aliens” as well?
F. SENATOR DOOLITTLE’S PROPOSED AMENDMENT, “EXCLUDING INDIANS NOT TAXED,” WAS DIRECTED AT QUALIFYING THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” AND NOT THE FIRST, “ALL PERSONS BORN IN THE UNITED STATES.”
01. Doolittle’s amendment “excluding Indians not taxed.”
02. The Second category acts as a constitutional “Collective Naturalization.”
03. The “Collective Naturalization” of Puerto Ricans and Guamanians was unnecessary.
04. The Second category avoids the difficulty of the “antenati” encountered in Calvin’s Case of the “Post Nati.”
G. IT IS THE “ALLEGIANCE” OF PERSONS “SUBJECT TO THE JURISDICTION” OF THE UNITED STATES” THAT DISTINGUISHES THEM FROM PERSONS “WITHIN THE JURISDICTION” OF A STATE OR THE UNITED STATES, OR PERSONS “SUBJECT TO ANY FOREIGN POWER”
01. The phrase “subject to the jurisdiction thereof”:
02. The phrase “within its jurisdiction”:
03. The phrase “subject to any foreign power”:
04. The phrase “and not subject to any foreign power” should NOT be regarded as synonymous with the phrase “and subject to the jurisdiction of the United States.”
05. The “ascriptive” as distinguished from the “consensual” view of the phrase “and subject to the jurisdiction thereof.”
H. THE THIRTEENTH AMENDMENT AND THE CITIZENSHIP CLAUSE IN THE FOURTEENTH IS WORDED TO APPLY TO “ANY PLACE” AND TO “ALL PERSONS” “SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
I. HISTORICAL CONTEXT OF THE 13TH AND 14TH AMENDMENTS IN RELATION TO TERRITORIES.
J. WHO WERE THOSE “PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES” UNDER THE SECOND CATEGORY UPON THE ENACTMENT BY THE 39TH CONGRESS OF THE CITIZENSHIP CLAUSE IN 1866?
01. District of Columbia
02. The 12 territories awaiting statehood,
03. The 11 States that seceded to form the Confederate States of America,
K. THE FIRST U.S. SUPREME COURT DECISION ON THE CITIZENSHIP CLAUSE SUGGESTS THAT THE PHRASE “IN THE UNITED STATES” INCLUDES “THE DISTRICT OF COLUMBIA” AND “THE TERRITORIES” BUT DOES NOT EXPLAIN THE REASON WHY
L. UNDER THE CITIZENSHIP CLAUSE, ABORIGINAL INDIANS QUALIFY TO BE U.S. CITIZENS ONLY UNDER A TREATY WITH THE UNITED STATES THAT COLLECTIVELY RENDERS THEM “SUBJECT TO THE JURISDICTION THEREOF”
01. Senator Doolittle’s Amendment, “excluding Indians not taxed,” was proposed to qualify the Second category.
M. UNDER THE SECOND CATEGORY, CHILDREN OF U.S. CITIZENS BORN ABROAD ACQUIRE THE STATUS OF NATURAL BORN CITIZENS OF THE UNITED STATES CONSISTENT WITH THE “NATIONAL LAW” IN FORCE IN 1866
01. Would Senator John McCain qualify as “natural-born” under the official and judicial reading?
02. The Second Category as Jus Sanguinis.
N. THE TERRITORIAL CLAUSE IS INVOKED TO JUSTIFY THE INSULAR CASES AND THE DOCTRINE OF INCORPORATED TERRITORY
01. The Insular Cases.
02. Dissent in the Insular Cases.
03. Court Decisions after the Insular Cases.
04. The “occult meaning” of the Doctrine of Incorporated Territory the Insular Cases enunciated.
O. UPON THE RATIFICATION OF THE FOURTEENTH AMENDMENT, THE TERRITORIAL CLAUSE APPLIES ONLY TO “TERRITORY” NOT TO “PERSONS” RESIDING OR BORN IN TERRITORY WHO ARE “SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
01. The Territorial Clause speaks of “PROPERTY” NOT of “PERSONS”.
02. The Second category in the Citizenship Clause does NOT speak of “TERRITORY” but of “PERSONS.”
03. Territorial Clause is relied on to justify Citizenship by “federal statute.”
P. THE INAPPLICABILITY OF THE NATURALIZATION CLAUSE TO TERRITORIAL FILIPINOS
Q. ARTICLE IX OF THE 1898 TREATY OF PARIS AUTHORIZING CONGRESS TO DETERMINE THE “POLITICAL STATUS” OF TERRITORIAL FILIPINOS IS VIOLATIVE OF THE CONSTITUTIONAL BIRTHRIGHT ACQUISITION OF U.S. CITIZENSHIP OF “PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
01. A treaty provision cannot annul a constitutional command.
02. Unlike treaties with the Indian aboriginals, the Treaty of Paris was entered into by and between the United States and the Spanish Crown with no representation from Territorial Filipinos.
R. PROVISIONS OF THE 1934 PHILIPPINE INDEPENDENCE ACT UNILATERALLY DENATIONALIZE TERRITORIAL FILIPINOS WHO WERE BORN CITIZENS OF THE UNITED STATES UNDER THE SECOND CATEGORY OF THE CITIZENSHIP CLAUSE, AND RENDER THEM STATELESS AT BIRTH
S. SUMMARY OF THE CONFUSION AND CONTRADICTIONS THE MISREADING OF THE CITIZENSHIP CLAUSE ENGENDERED
01. The Second category, which is consistent with what Senator Howard said that his draft of the Clause “will include every other class of persons,” resolves the various Immigration and naturalization controversies in the past concerning the status of the following:
02. The inapplicability of the Territorial Clause and the Naturalization Clause to Territorial Filipinos, natural-born citizens of the United States under the Second category in the Citizenship Clause, grammatically read as intended
03. The unconstitutionality of the provisions of the 1898 Treaty of Paris and the 1934 Philippine Independence Act downgrading the political status Territorial Filipinos acquired under the Citizenship Clause, grammatically read as intended
04. The Schemes concocted to deny Fourteenth Amendment Birthright to Territorial Filipinos.
05. Territorial Filipinos were rendered STATELESS AT BIRTH.
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PART FOUR
TERRITORIAL FILIPINOS
PERSONS MANDATED TO OWE ALLEGIANCE TO THE UNITED STATES
(Under construction)
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Thursday, August 17, 2006
PART THREE: TERRITORIAL FILIPINOS
PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES
“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. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”--Sponsorship speech of Senator Jacob Howard, author of the Citizenship Clause, 30 May 1866 (Note commas between “and subject to their jurisdiction.”)
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“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 allegiance if you please, to some other government that he is “subject to the jurisdiction of the United States … 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 … We propose to make citizens of those of those brought under our jurisdiction in that way [“by special provision of legislation” under a treaty]. Nobody objects to that, I reckon.”--Senator Lyman Trumbull, Senate Committee on Laws Chair, the Citizenship Clause debate, 30 May 1866
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"But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language he uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does."---Senator James Doolittle, the Citizenship Clause debate, 30 May 1866.
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“The purpose is manifest, to establish through the whole jurisdiction of the United States ONE PEOPLE … The amendment embodies all that the statesmanship of the country has conceived for accommodating the Constitution and the institutions of the country to the vast additions of territory, increase of the population, multiplication of States and Territorial governments, the annual influx of aliens, and the mighty changes produced by revolutionary events, and by social, industrial, commercial development. 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. Citizenship is assigned to nativity in any portion of the United States, and every person so born is a citizen.”---The Slaughter-House Cases, 83 U.S. 36 (1872), the first U.S. Supreme Court ruling on the Citizenship Clause
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“The Constitution declares that it 'shall be the supreme law of the land.' But the court in effect adjudges that the Philippine Islands are not part of the 'land,' within the meaning of the Constitution, although they are governed by the sovereign authority of the United States, and although their inhabitants are subject in all respects to its jurisdiction,-as much so as are the people in the District of Columbia or in the several states of the Union. No power exists in the judiciary to suspend the operation of the Constitution in any territory governed, as to its affairs and people, by authority of the United States.”--Justice Harlan, dissenting in Dorr v. U S, 195 U.S. 138 (1904)
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A. THE CITIZENSHIP CLAUSE IS “DECLARATORY OF … THE LAW OF THE LAND ALREADY … BY VIRTUE OF NATURAL LAW AND NATIONAL LAW,” AFFIRMING THE COMMON LAW BIRTHRIGHT RULE--“BIRTH WITHIN THE REALM AND WITHIN THE ALLEGIANCE”
A Second category of citizens of the United States is consistent with Senator Howard's sponsorship speech, asserting that his Draft "is simply declaratory of what I regard as the law of the land already … by virtue of natural law and national law."
01. Natural Law--The Common Law Rule on Birthright Citizenship. A 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 U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), restates the “fundamental principle of the common law” 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 …”
He continues: “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 Postnati,' 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 cited footnote:
“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.”
Justice BRADLEY, dissenting in Wong Kim Ark, similarly said:
“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, depending upon citizenship of the United States and the citizen's place of residence … Inhabitants of Federal territories and new citizens, made such 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 … “
Grammatically read, therefore, the Citizenship Clause recognizes the English common-law BIRTHRIGHT RULE--“birth within the realm and within the allegiance.”
In Barber v. Gonzalez, 347 U.S. 637 (1954) at Footnote (1):
"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),” and at Section 2 (1) of the Philippine Independence Act, "All citizens of the Philippine Islands shall owe allegiance to the United States."
Thus, the Post Nati Territorial Filipinos were persons born “within the realm” (the Philippine Islands was territory “subject to the jurisdiction of the United States”) and “within the allegiance” (Territorial Filipinos “owed allegiance to the United States”); hence, under the Citizenship Clause, the Antenati Territorial Filipinos were citizens of the United States and the Post Nati natural-born.
And this means that, under the Citizenship Clause, Territorial Filipinos are regarded, in the words of Justice Bradley, as “inhabitants of Federal territories and new citizens, made such by annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, [be regarded] as citizens of the United States.”
02. “National Law”--Birth Within the Realm and Within the Allegiance. During the Civil Rights Act debate, the Chair of the House Judiciary Committee, Rep. James Wilson, 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."
Rep. Wilson concludes by stating that what was 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."
Rep. Wilson also quotes 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, and entitled to all the rights and privileges appertaining to that capacity."
Thus, the “national law” prevailing in 1866 was: Persons born “within its jurisdiction” or “within the United States, its territories, or districts” are “natural-born.”
03. The Law of the Land. In Senator Howard’s words, the Citizenship Clause confers U.S. citizenship upon two categories of citizens recognized by “the law of the land already … by virtue of natural law and national law":
First Category: All persons born or naturalized in the United States; and
Second Category: All persons owing allegiance to the United States, over whom the constitutional power of the United States extends, and inhabiting territory, over which the United States exercises the rights of sovereignty and jurisdiction.
Thus, a person acquires the status of a “natural-born” citizen of the United States, if born “within its jurisdiction” or “within the dominions,” which in Coke’s words is the “divine law of nature … the eternal law of the Creator" and "part of the law of England." This 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.”
Does this Second category not satisfy the English common-law Birthright rule derived from Calvin’s Case: “Neither the climate nor the soil but obedience and allegiance that makes the subject born”?
B. THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” DOES NOT REFER TO A DEFINED TERRITORIAL LIMITATION BUT TO “PERSONS OWING ALLEGIANCE TO THE UNITED STATES”
The First Category of the Citizenship Clause, “All persons born … in the United States” means that U.S. citizenship “[springs] from the place of birth [“in the United States”] regardless of parentage, and [supervenes] at the moment of birth.”
So, other than persons “born … in the United States,” the road to acquiring U.S. citizenship AFTER BIRTH under the First category is for those persons to be “naturalized in the United States.”
Take note that the preposition used is ”in,” NOT “by,” the United States, no matter how the phrase “the United States” is to be conveniently redefined by law to include later.
As distinguished from the First category, the Second category --“All persons subject to the jurisdiction of the United States”--does not refer to a specific “place” or “territory” NOT “in the United States” as the criterion to acquiring U.S. citizenship.
Rather, as defined by the 39th Congress during the Citizenship Clause debate, the Second category refers to all persons “owing allegiance to the United States,” over whom “the constitutional power of the United States” is “coextensive in all respects,” in this manner:
Senator Lyman 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.'"
Senator Jacob Howard (the author): "[T]he 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."
So, under the Second category, what matters is to whom the person “owes allegiance” to. It is the determinant, the criterion for conferment of U.S. citizenship.
C. THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” WAS PHRASED TO “INCLUDE EVERY OTHER CLASS OF PERSONS”
In his sponsorship speech of the Citizenship Clause, Senator Howard clarified that his draft “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons …”
So, there were other persons embraced. For, aside from those “persons born in the United States” and the “recognized exceptions” Senator Howard cited, the Clause was intended to include “every other class of persons.”
But who are they? These “other class of persons” Senator Howard speaks of are evidently NOT “born in the United States”; for, if they are, these persons would surely qualify as belonging to the First category of “persons born in the United States,” unless they are part of the class of “recognized exceptions” he cited of those “born.”
Rather, they belong to the Second category--of “every other class of persons”--who are “subject to the jurisdiction of the United States.”
What follows is a description of some (for there may still be others) of the more important and controversial “other class of persons” conferred U.S. citizenship under this category.
01. Children of U.S. citizens born abroad. Since the allegiance of children of U.S. citizens born abroad, NOT “in the United States,” follows the allegiance of their parents who are “subject to the jurisdiction of the United States”; then, under the Second category, these children are citizens of the United States AT BIRTH, even if only one of the parents (the mother, in particular) is a U.S. citizen.
Thus, the second category goes beyond the concept of Patria Potestas (Power of a Father), since the child of an American mother married to a foreigner is also born “subject to the jurisdiction of the United States” owing to the allegiance of the mother.
Under Roman law, “Potestas” is “one of the words by which is expressed the power that one private person has over another … The Potestas is either Dominica, that is, ownership as exhibited in the relation of Master and Slave; or Patria as exhibited in the relation of Father and Child.” (see George Long on pp. 873 875 of William Smith, A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875)
“Patria Potestas then signifies the power which a Roman father had over the persons of his children, grandchildren, and other descendants, and generally all the rights which he had by virtue of his paternity. The foundation of the Patria Potestas was a Roman marriage, and the birth of a child gave it full effect … The term Patria Potestas strictly expresses the power of the father, as such, which arises from the paternal relation.”
Justice Fuller dissenting in Wong Kim Ark cites “Partus sequitur patrem” as the reason:
“[T]he rule, 'Partus sequitur patrem,' has always applied to children of our citizens born abroad, and that the acts of congress on this subject are clearly declaratory, passed out of abundant caution, to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere.”
In a way, the Second category as phrased embodies the concept of “Patria Potestas” and “Partus sequitur patrem”; hence, the children of American citizens born abroad belong to a class that Senator Howard said his draft “will include every other class of persons.”
For that matter, under the Second category, an American mother, even if married to a foreigner, remains a person EQUALLY “subject to the jurisdiction of the United States” as any American Father and is able to also transmit the precious citizenship of the United States she holds to her child at birth who belongs to the “other Class of persons.”
For a more thorough discussion on persons born abroad, see David A. Isaacson, Correcting Anomalies in the United States Law of Citizenship by Descent, Arizona Law Review (2005). Quoted below is the introductory comment on the “complications” of U.S. laws on citizenship-by descent:
“Current U.S. citizenship-by-descent law is full of complications that act
more as traps for the unwary than reasonable ways of accomplishing legitimate
policy goals—complications so severe that counsel in Nguyen, the most famous
citizenship-by-descent case of this decade, may have been led astray by them. For
the more wary who do figure out the implications of its details, the law presents
perverse incentives and peculiar windfalls. It needs to be changed.”
Obviously, these “complications” arising from “perverse incentives and peculiar windfalls” would have been greatly reduced had the Second category been recognized.
02. Children of U.S. born female citizen married to a foreigner. “Under the act of March 2, 1907, all women acquired their husband's nationality upon any marriage occurring after that date. This changed nothing for immigrant women, but U.S.-born citizen women could now lose their citizenship by any marriage to any alien.
“[T[he Married Women's Citizenship Act, also known as the Cable Act [1922], finally gave each woman a nationality of her own. No marriage since that date has granted U.S. citizenship to any alien woman nor taken it from any U.S.-born women who married an alien eligible to naturalization … women who lost citizenship by marriage and regained it under Cable Act naturalization provisions could file in any naturalization court--regardless of her residence.” (see Women and Naturalization, archives.gov)
The 1922 Cable Act allowed an American woman marrying an immigrant to maintain her U.S. citizenship. Essentially, “the Act made the naturalization process for men and women equal and reversed former immigration laws regarding marriage.”
.
However, had the Second category been recognized earlier, a U.S. born female citizen--a person “subject to the jurisdiction of the United states”--would have retained her citizenship even if she married an alien, unless she voluntarily relinquished it, for she belongs to what Senator Howard refers to as “every other class of persons,” including her children.
03. Persons in the Territories or in the District of Columbia. Although, as worded, the Second category does not expressly refer to a place or territory where persons “subject to the jurisdiction of the United States” are born or residing, Senator Trumbull during the debate mentions of the extent of its reach as “everywhere,” or as in the phraseology of the Thirteenth ratified a few months earlier, “any place” so long as that person is “subject to the jurisdiction of the United States”:
"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."
To repeat for clarification: The Citizenship Clause applies to “persons everywhere, whether in the States or in the Territories or in the District of Columbia.” So, if a person is NOT “in the United States,” where else could that person “subject to the jurisdiction of the United States” be, but “in the Territories or in the District of Columbia.”
Senator Trumbull continues:
“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 … We propose to make citizens of those brought under our jurisdiction in that way.” (Ibid.)
Take note of the phrases: “those persons who come completely within our jurisdiction, who are subject to our laws” and “those brought under our jurisdiction.”
In other words, under the Second category, the moment the cession of territory is complete and the ceded territory becomes “subject to the jurisdiction of the United States,” over which the United States exercises “the rights of sovereignty and jurisdiction,” persons residing or born in such ceded territory now “belonging to the United States” likewise becomes “subject to the jurisdiction of the United States” and acquires citizenship of the United States, who are “entitled to its protection.”
In short, the Citizenship Clause with its Second category satisfies fully the Birthright Rule, “Birth within the Realm and within the Allegiance”--“Neither the climate nor the soil but obedience and allegiance that makes the subject born.” For these include persons not only “born or naturalized in the United States,” but includes also “every other class of persons” who are “subject to the jurisdiction of the United States.”
NOTE: Children of a U.S. citizen (father or mother) born “out of wedlock” (illegitimate or “legitimated”) are also definitely “persons subject to the jurisdiction of the United States” AT BIRTH and thus belong to what Senator Howard refers to “every other class of persons.” There are so many legal implications involved; so, it is best to leave to legal professionals the discussion of this aspect.
D. THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” CONFERS U.S CITIZENSHIP UPON PERSONS NOT ONLY AT BIRTH BUT ALSO AFTER BIRTH
The Second category confers U.S. citizenship to those “persons” from and after the moment they become “subject to the jurisdiction” of the United States AT BIRTH (“antenati”) or AFTER BIRTH (“post nati”) who are definitely NOT “in the United States,” since those regarded as “in the United States” are, of course, already conferred citizenship by virtue of having qualified under the First.
In this regard, Justice Harlan’s dissent in Elk v. Wilkins is pertinent:
“Our brethren, it seems to us, 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 in which they reside;'
Justice Harlan’s observation is, of course, correct. The Clause certainly does NOT say “all persons born subject to the jurisdiction.” For, here, the First and the Second categories are joined as one. Rather, under the First category, citizenship is conferred upon persons “born in the United States” and, under the Second, upon persons “subject to the jurisdiction of the United States” AT BIRTH OR AFTER BIRTH.
01. The “Antenati” acquires citizenship of the United States from and after the moment the person becomes, on that date AFTER BIRTH, ”subject to the jurisdiction of the United States,” which obviously includes the inhabitants or natives of a territory at the time of formal acquisition of such ceded territory by the United States.
02. The “Post Nati” acquires citizenship AT BIRTH if born “subject to the jurisdiction of the United States,” and are thus “natural-born.”
Certainly, these are persons, in the words of Senator Trumbull cited earlier, “who come completely within” [or “brought under”] our jurisdiction,” “everywhere, whether in the States or in the Territories or in the District of Columbia.”
The “Case of the Post Nati” in Scotland was the issue that confronted Calvin’s Case (1608), discussed in another section earlier here, which is said to have formed the basis for the phraseology of the Citizenship Clause.
E. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” WAS NOT INTENDED, AS CLAIMED OFFICIALLY AND JUDICIALLY, TO DISQUALIFY THE “RECOGNIZED EXCEPTIONS” UNDER COMMON LAW
For well over a century now, the phrase “and subject to the jurisdiction thereof” in the Citizenship Clause has been read as a “qualifying phrase” modifying the phrase preceding it, “All persons born or naturalized in the United States.”
In his sponsorship speech of the Citizenship Clause, Senator Howard clarified that his draft--
“… will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons …”
Note that the “exception” of “foreigners, aliens” that the author, Senator Howard, mentioned was directed at the First category, “All persons born in the United States.”
01. Children of diplomats are already excluded in the Jus Soli principle. 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)
The declaration that all persons born in the United States are citizens obviously invokes the jus soli principle, and it would have necessarily implied the English common law birthright rule exceptions for ambassadors and other foreign officers.
In fact, by saying that his draft “will not, of course, include”--can already be understood to mean that the “exceptions” Senator Howard reminded his colleagues about were the well-settled “recognized exceptions” to the Birthright Rule—without the need of providing for them.
During the debate, Senator Williams also touched on these “recognized exceptions”:
“Take the child of an ambassador, in one sense that child born in the United States is subject to the jurisdiction of the United States; because if the child commits murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians … I understand the words here, “subject to the jurisdiction of the United States,” to mean fully and completely subject to the jurisdiction of the United States.”
This view is consistent with William Blackstone, Commentaries (1765):
“… the children of the king's embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador.”
Children of diplomats, in short, are “recognized exceptions” under the jus soli principle.
02. It was Justice Miller--not the author Senator Howard--who said that the phrase was intended to exclude the children of diplomats. What is indisputable is that Senator Howard NEVER said during the debate that his use of the phrase “and subject to the jurisdiction thereof” was intended to cover the cited “exception” of “foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States. “
Rather, it was Justice Miller in the Slaughterhouse Cases (1872) who first referred to the phrase as having been placed to provide for the “exceptions” when he said:
“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.”
Justice Gray in Wong Kim Ark (1898), however, said that Justice Miller’s statement “was wholly aside from the question in judgment,” and to quote:
“Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the fourteenth amendment, made this remark: '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.' This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together; whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as intrusted with authority to represent their sovereign in his intercourse with foreign states, or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside. “
“In weighing a remark uttered under such circumstances, it is well to bear in mind the often-quoted words of Chief Justice Marshall: 'It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.' Cohens v. Virginia (1821) 6 Wheat. 264, 399.”
In spite of this observation on Justice Miller’s “aside” that “was unsupported by any argument, or by any reference to authorities,” Justice Gray, nonetheless, opined:
“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.”
So, owing to the misreading of the Clause, even those who dissented in Wong Kim Ark were as confused as those who penned the decision.
03. It was not necessary to provide for the “recognized exceptions.” If, indeed, the “real object” of the “qualifying phrase” had “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” to be “recognized exceptions,” why would Senator Howard expressly provide for such redundant, superfluous exceptions that he, along with the 39th Congress, already knew was “well settled law”?
The confusion and uncertainty is echoed more profoundly in what Chief Justice Fuller (with Justice Harlan concurring), said dissenting in the same Wong Kim Ark case concerning a similar “synonymous” phrase used in the Civil Rights Act, “and not subject to any foreign power,” the same 39th Congress approved two months earlier:
“But it is argued that the words 'and not subject to any foreign power' should be construed as excepting from the operation of the statute only the children of public ministers and of aliens born during hostile occupation.
“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?
“Whether the immunity of foreign ministers from local allegiance rests on the fiction of extraterritoriality or on the waiver of territorial jurisdiction, by receiving them as representatives of other sovereignties, the result is the same.
“They do not owe allegiance otherwise than to their own governments, and their children cannot be regarded as born within any other.
“And this is true as to the children of aliens within territory in hostile occupation, who necessarily are not under the protection of, nor bound to render obedience to, the sovereign whose domains are invaded; but it is not pretended that the children of citizens of a government so situated would not become its citizens at their birth, as the permanent allegiance of their parents would not be severed by the mere fact of the enemy's possession.
”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.”
So, was it necessary for the phrase to be inserted for the sole reason of excluding already “recognized exceptions”?
04. If the phrase was intended to exclude the children of diplomats, why not exclude the children of “aliens” as well? Chief Justice Fuller proceeds to highlight the inconsistency of the view that the phrase was intended to exclude the “recognized exceptions” in jus soli
“But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanenta llegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would.
In a word, what Chief Justice Fuller is saying here is that, if the addition of the phrase was really intended for the named exceptions, what of the “others in respect of whom the exceptions was needed,” “aliens,” in particular?
Certainly these unnamed other exceptions would further dilute and confuse no end the birthright rule Senator Howard espoused to adhere strictly to “birth within the realm and within the allegiance.”
So, we reiterate, was it “necessary” for Senator Howard to add the phrase to emphasize what he already said during his sponsorship speech that his draft “will not, of course, include” the “recognized exceptions,” exceptions as old as the rule itself?
In view of all these, it now becomes exceedingly clear that the “real object” of the phrase Senator Howard had in mind was the conferment instead of U.S. citizenship upon a Second category--“all persons subject to the jurisdiction of the United States.”
F. SENATOR DOOLITTLE’S PROPOSED AMENDMENT, “EXCLUDING INDIANS NOT TAXED,” WAS DIRECTED AT QUALIFYING THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” AND NOT THE FIRST, “ALL PERSONS BORN IN THE UNITED STATES.”
01. Doolittle’s amendment “excluding Indians not taxed.” In the course of objecting vigorously to Senator Doolittle’s proposal to insert the words, “excluding Indians not taxed,” to his draft of the Clause, Senator Howard, the author, mentions “naturalization” several times, in this manner:
“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.”
Senator Howard even adds later:
“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.”
The United States Code at Sec. 1101 (a), Chapter 12, Subchapter 1 defines the term “naturalization” in this manner:
“(23) The term ‘naturalization’ means the conferring of nationality of a state upon a person after birth, by any means whatsoever.”
Take careful note that, as already discussed in Part Two, naturalization can only be applied “AFTER BIRTH.” No person, therefore, can be “naturalized” AT BIRTH. In fact, under the Citizenship Clause as phrased, a person AFTER BIRTH needs to be “in the United States”--and NOT anywhere else--in order to qualify to be “naturalized.”
Also, to repeat for emphasis, the Second Category is worded to confer U.S. citizenship, NOT only upon persons AT BIRTH, but also upon persons AFTER BIRTH (or upon those already “born”) from and after the moment those born or AT BIRTH and those AFTER BIRTH become “subject to the jurisdiction of the United States.”
So, what Senator Howard obviously had in mind in his remarks is that Senator Doolittle’s proposal to insert the words “excluding Indians not taxed” was intended to qualify the Second category, “All persons subject to the jurisdiction of the United States”; and certainly NOT to qualify the phrase “All persons born, and subject do the jurisdiction thereof,” with the phrase “and subject to the jurisdiction thereof,” as claimed officially and judicially, qualifying, “All persons born.”
For why would Senator Howard--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,” if, as claimed officially and judicially, the phrase “and subject to the jurisdiction thereof”—which is proposed to be qualified further by Senator Doolittle’s amendment, “excluding Indians not taxed”--is merely a “qualifying phrase” to “All persons 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 officially and judicially, must at the moment of their BIRTH, be (1) “subject to the jurisdiction thereof” and, had Senator Doolittle’s amendment been accepted, be (2) “taxed” by the State as well?
And the reason, to repeat, is that 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--a category sadly still unrecognized to this day.
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.” Senator Howard naturally objected, for Indians by treaty were never regarded as fully and completely “subject to the jurisdiction of the United States.”
However, under 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” through the act of taxation, “whenever,” in the words of Senator Howard, “the States saw it fit to impose a tax upon the Indians.”
02. The Second category acts as a constitutional “Collective Naturalization.” From Senator Howard’s objection to Senator Doolittle’s amendment, it is clear that the Second category authorizes, constitutionally (as distinguished from legislation), the “Collective Naturalization” of persons AT BIRTH and AFTER BIRTH from and after the moment the person becomes “subject to the jurisdiction of the United States.”
The Second category is applicable, and to quote Senator Trumbull’s words cited earlier here (see under Item “B”.03 above), to “those persons who come completely within our jurisdiction, who are subject to our laws … We propose to make citizens of those brought under our jurisdiction in that way.”
Certainly, those “persons who come completely within” or are “brought under our jurisdiction” do NOT refer to “persons born”; rather, the lines cited no doubt point to the Second category, persons already born “who come completely” or is “brought” to be “subject to the jurisdiction of the United States.”
Thus, the Second category may be regarded as having been intended also to confer a CONSTITUTIONAL “Collective Naturalization” upon persons who become ”subject to the jurisdiction of the United States” not only AT BIRTH, but also AFTER BIRTH.
03. The “Collective Naturalization” of Puerto Ricans and Guamanians was unnecessary. Senator Howard’s Second category of citizens of the United States does NOT specify the locality that is “subject to the jurisdiction” to act as the criterion to conferment of U.S. citizenship, unlike the First which refers to persons with the place of birth expressly specified--“born … [only] in the United States.”
Nonetheless, insofar as locality is concerned, the Second category was evidently intended to cover those inhabitants (or natives) “subject to the jurisdiction of the United States” residing in territory upon its cession or annexation as well as those born after.
The vast expanse of ceded territory that were “subject to the jurisdiction of the United States” in 1866 is discussed in detail later here and need no further elaboration.
So, had the Second category been recognized earlier, there would not have been any need for the U.S. 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 Territorial Filipinos, of course).
And the obvious reason is that, upon the moment of cession, the inhabitants of these territories (those already “born”) who become “subject to the jurisdiction of the United States” automatically acquired U.S. citizenship, transmittable to their children born later, without the need of a specific provision to “naturalize” them and their offspring.
In fact, as discussed in Part Two, under the current definition of ”naturalization” and the erroneous official and judicial reading of the Citizenship Clause, the congressional “collective naturalization” of persons AT BIRTH in the territories of Puerto Rico and Guam is of doubtful authority, unless these are children of Puerto Ricans and Guamanians Congress already collectively “naturalized.”
Not only that, owing to this misreading of the Clause, the gnawing question lingers: If Puerto Ricans and Guamanians do NOT qualify as having been “born in the United States,” why were they deemed eligible to be “naturalized in the United States”?
Is the meaning of the words “in the United States” selectively different when applied to BIRTH as against NATURALIZATION as used in the phrase “born or naturalized in the United States” both joined by the conjunction “or”?
NOTE: Please see an extended discussion in Section N.03 here about the Position Paper of the Task Force on Free Association, “Guam’s Political Future: An Argument for Free Association with U.S. Citizenship” concerning the claim that the natives of Guam received their citizenship neither by birth in the United States nor by naturalization, but rather by federal statute, their citizenship is similarly subject to congressional action.
04. The Second category avoids the difficulty of the “antenati” encountered in Calvin’s Case of the “Post Nati.” 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 the Second category, since this category covers both the “antenati” and the “post nati”--both “persons subject to the jurisdiction of the United States.”
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.”
Those born in Scotland following the descent of the English crown to King James--the “post nati”--were considered “subjects” in England; but their parents or those already “born” residing in Scotland were the “antenati,” and it was ruled in Calvin’s Case that they (the “antenati”) were NOT to be regarded as “subjects” in England.
Under the Second category, however, both the “post nati” and the “antenati” acquire citizenship of the United States from the moment of BIRTH or become AFTER BIRTH “subject to the jurisdiction of the United States.”
G. IT IS THE “ALLEGIANCE” OF PERSONS “SUBJECT TO THE JURISDICTION” OF THE UNITED STATES” THAT DISTINGUISHES THEM FROM PERSONS “WITHIN THE JURISDICTION” OF A STATE OR THE UNITED STATES, OR PERSONS “SUBJECT TO ANY FOREIGN POWER”
01. The phrase “subject to the jurisdiction thereof”: The Citizenship Clause in Section 1 of the Fourteenth Amendment provides:
“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.”
As already discussed in Section A above and elsewhere here, the phrase “subject to the jurisdiction thereof” denotes the “allegiance” of persons over whom the constitutional power of the United States is coextensive in all respects, irrespective of whether the person is “in” the United States as Congress conveniently defines it to embrace, or OUTSIDE of the United States.
02. The phrase “within its jurisdiction”: The penultimate sentence of Section 1 of the Fourteenth Amendment also provides:
“ … nor [shall any State] deny to any person within its jurisdiction, the equal protection of the laws.”
In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court described the extent of the phrase “within its jurisdiction”:
“Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments.
“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. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction - either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States - he is entitled to the equal protection of the laws that a State may choose to establish.
In a word, the phrase “within its jurisdiction” refers to “anyone, citizen or stranger” who is “within” or “under” the laws of the State or the United States.” It speaks of the “obedience” to the laws “within the territorial perimeter” of such jurisdiction—as distinguished from the “allegiance” that goes with the “obedience” persons who are “subject to the jurisdiction of the United States” owe thereto.
03. The phrase “subject to any foreign power”: The first sentence of the 1866 Civil Rights Act declares:
“All persons born in the United States and not subject to any foreign power are hereby declared to be citizens of the United States.”
Using the same sense of the dictionary definition (and Senator Trumbull’s reading) of “subject to” as “owing allegiance,” the phrase “subject to any foreign power” refers to persons owing allegiance to a sovereign other than one’s own, or the United States. In other words, as used in the Civil Rights Act, those “subject to any foreign power” refer to foreigners, strangers or aliens who are nationals of, or owe allegiance to, another country from the standpoint of an American.
Note that, as already discussed in Part Two, the phrase “and not subject to any foreign power” is employed in the Civil Rights Act as a modifier or qualifier of the element preceding it, “All persons born in the United States,” owing to the omission of the comma before the coordinating conjunction “and.”
04. The phrase “and not subject to any foreign power” should NOT be regarded as synonymous with the phrase “and subject to the jurisdiction of the United States.” The phrase “and not subject to any foreign power” has generally been regarded as “synonymous” with the phrase “and subject to the jurisdiction thereof.”
This may not be the accurate analysis, since the determinant word “jurisdiction” appears only in the latter and is missing in the former, negatively phrased. And, during the debate as cited earlier, Senator Howard, the author, defined the term “jurisdiction” to imply “the full and complete jurisdiction [as distinguished from “partial”] on the part of the United States, coextensive in all respects with the constitutional power of the United States."
In any case, it is the ALLEGIANCE of the person that distinguishes these three phrases discussed. For a citizen who owes “allegiance” to the United States is “subject to the jurisdiction” of the United States; while a stranger or alien who may happen to be “within its jurisdiction” is actually “subject to [a] foreign power” or owes “allegiance” to another country.
05. The “ascriptive” as distinguished from the “consensual” view of the phrase “and subject to the jurisdiction thereof.” The statement before the Subcommittes of Immigration and Claims and on the Constitution of the House Committee on the Judiciary by the Asst. Attorney General (Office of the Legal Counsel), Walter Dellinger, on 13 December 1995 is enlightening as it relates to the phrase “and subject to the jurisdiction thereof,” which in part states:
“In their 1985 book, Professors Peter Schuck and Rogers Smith argue for a novel’"reinterpretation’ of the citizenship clause. Briefly, the authors recommend replacing the ‘ascriptive’ approach to citizenship--which determines citizenship by an objective circumstance, such as place of birth or citizenship of parents--with a ‘consensual’ approach--which makes political membership a product of mutual consent by the polity and the individual. The authors argue that the Fourteenth Amendment may be reinterpreted to allow Congress to deny citizenship to children of illegal aliens by legislation (as opposed to constitutional amendment) …
“Schuck and Smith are proposing a change in the law, not a plausible reinterpretation of the Constitution … Indeed, the authors themselves concede that there is no judicial precedent in support of their theory. Moreover, as one review of the book notes on a more philosophical level, "[t]he examples [Schuck and Smith give in support of their consent theory]--the denial of citizenship to Blacks, Indians and Chinese--are all deeply shameful for contemporary Americans. This is not a history to build on.’
“From our experience with Dred Scott, we had learned that our country should never again trust to judges or politicians the power to deprive from a class born on our soil the right of citizenship. We believe that no discretion should be exercised by public officials on this question---there should be no inquiry into whether or not one came from the right caste, or race, or lineage, or bloodline in establishing American citizenship. Other nations may seek more consensual and perhaps more changeable forms of citizenship; for us, for our nation, the simple, objective, bright-line fact of birth on American soil is fundamental.”
This piece is another example of how the misreading of the Clause has brought about several interpretations of the phrase “and subject to the jurisdiction thereof” that are bound to be criticized severely by those who should have also tried to analyze the phrase correctly as intended by its author, Senator Howard.
H. THE THIRTEENTH AMENDMENT AND THE CITIZENSHIP CLAUSE IN THE FOURTEENTH IS WORDED TO APPLY TO “ANY PLACE” AND TO “ALL PERSONS” “SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
The two post-Civil War amendments proclaim:
Thirteenth: “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Fourteenth: “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.”
Clearly, with the Fourteenth grammatically read, the two post-Civil War Amendments, 13th (1866) and 14th (1868), 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: Abolition of Slavery or involuntary servitude inflicted upon persons:
(1) "within the United States"; or
(2) "any place subject to their jurisdiction."
FOURTEENTH: U.S. Citizenship conferred upon persons:
(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof" (born or residing “everywhere” to use Senator Trumbull’s own words)
Justice Brown in Downes v. Bidwell, 182 U.S. 244 (1901) cited these two Civil-War Amendments to buttress his view on the Doctrine of Incorporated Territories:
“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. To say that the phraseology of this amendment was due to the fact that it was intended to prohibit slavery in the seceded states, under a possible interpretation that those states were no longer a part of the Union, is to confess the very point in issue, since it involves an admission that, if these states were not a part of the Union, they were still subject to the jurisdiction of the United States.
“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, read grammatically as intended by Senator Howard, the reach of the Fourteenth is similarly “limitless.” For under the Second category of the Citizenship Clause in Section 1 of the Fourteenth Amendment, citizenship of the United States is “extended” to “all persons” born or residing, “everywhere” who are “subject to their jurisdiction”--consistent with the congressional intent of abolition of slavery upon “all persons” born or residing “any place subject to their jurisdiction” in the phraseology of the Thirteenth.
I. HISTORICAL CONTEXT OF THE 13TH AND 14TH AMENDMENTS IN RELATION TO TERRITORIES.
(NOTE the importance attached to “Territories” in the following narration taken directly from the original of various historical websites.)
Abolition of slavery and protection of inhabitants in the territories were important issues since the beginning of the American republic. Slavery was banned in 1878: in the newly created Northwest Territory (later the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin); in the Louisiana Territory above the latitude 360* 30’ under the Missouri Compromise of 1820-21; and in California (part of the territory ceded from Mexico by the Treaty of Guadalupe Hidalgo) under the 1850 Compromise.
Slavery in the territories would be at the center of angry public debate in 1854 following the Kansas-Nebraska Act, which repealed the 1820 Missouri Compromise Act, and the Fugitive Slave Act, which federalized the return of escaped slaves found in free states or territories to their owners
In the District of Columbia, President Lincoln granted emancipation to slaves in 1862. Two months later, the Territorial Abolition Act banned slavery in the current or any future territories of the United States, providing:
“That from and after the passage of this Act there shall be neither slavery nor involuntary servitude in any of the Territories of the United States now existing, or which may at any time hereafter be formed or acquired by the United States.”
The territorial areas included the future states of North and South Dakota, Nebraska, Oklahoma, Washington, Idaho, Montana, Wyoming, Colorado, Utah, Nevada, New Mexico, Arizona, and Alaska.
The case of Dred Scott v. Sandford (1857) was about slavery in the territories, involving a slave, Dred Scott, who traveled with his master for several years, first in the free state of Illinois and then in the free territory of Wisconsin. After his master’s death, Scott sued for his freedom, arguing that his temporary stay in free territory had made him free.
Under the Dred Scott decision, the ban on slavery in the territories is not constitutionally permissible and that black Americans could not be citizens. The decision was overruled by the “legislation of war”--the Civil War.
In 1865, the Thirteenth Amendment which abolished slavery "within the United States, or any place subject to their jurisdiction" was ratified, with “any place” meaning ceded territories
A year later, in 1866, the Civil Rights Act, was enacted. Sec. 1 of the Act is worded:
“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; and such citizens, of every race and color…shall have the same right, in every State and Territory in the United States…as is enjoyed by white citizens…”
Although the Thirteenth Amendment abolished slavery, it did not resolve the legal status of former slaves under federal and state law. After the Civil War, many southern states passed “Black Codes” designed to severely restrict the lives of newly freed slaves and keep them in virtual slavery.
Finally, in 1868, the Fourteenth Amendment was ratified. The Citizenship Clause in Sec. 1 is phrased:
“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.”
Through the Fourteenth Amendment, former slaves were granted citizenship and promised “equal protection of the laws.” This protection from unreasonable discrimination eventually extended to other groups as well. The Fourteenth Amendment became the basis for claims of “legal equality.”
The historical background of the 13th and 14th Amendments narrated here show clearly that concern for the Rights of Freedmen in Territories played a crucial role in the promulgation of the amendments in view of the frenzied advocacy of Calhoun’s “State Rights” in the South.
In the end, Federalism triumphed over “State Rights” to be pursued under the mandate: “any place” (13th) or “all persons” (14th)--“subject to the jurisdiction of the United States.”
J. WHO WERE THOSE “PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES” UNDER THE SECOND CATEGORY UPON THE ENACTMENT BY THE 39TH CONGRESS OF THE CITIZENSHIP CLAUSE IN 1866?
At the time the U.S. Congress enacted the Fourteenth Amendment (and the Citizenship Clause in Section1) in 1866, persons NOT “in the United States,” but “subject to the jurisdiction of the United States” comprised the inhabitants or residents of “a vast additions of territory” and “Territorial governments” belonging to the United States, specifically within the following:
01. District of Columbia (NOT a State but carved from, and ceded by, the States of Virginia and Maryland)
02. The 12 territories awaiting statehood, showing respective dates of admission (chronologically) as a state and dates of creation earlier into an organized territory:
37th. Nebraska 01 Mar 1867 Territory 30 May 1834
38th. Colorado 01 Aug 1876 Territory 28 Feb 1861
39th. North Dakota 02 Nov 1889 Territory 02 Mar 1861
40th. South Dakota 02 Nov 1889 Territory 02 Mar 1861
41st. Montana 08 Nov 1889 Territory 26 May 1864
42nd. Washington11 Nov 1889 Territory 02 Mar 1853
43rd, Idaho 03 July 1890 Territory 03 Mar 1863
44th. Wyoming 10 July 1890 Territory 25 Jul 1868 (previously part of Dakota Territory)
45th. Utah 04 Jan 1896 Territory 09 Sep 1850
46th. Oklahoma 16 Nov 1907 Territory 02 May 1890 (previously part of Indian Territory)
47th. New Mexico 06 Jan 1912 Territory 09 Sep 1850
48th. Arizona 14 Feb 1912 Territory 24 Feb 1863
(NOTE: Alaska, the 49th State was annexed 30 Mar 1867 before the Fourteenth was ratified, but was organized into a Territory only on 24 Aug 1912 and admitted as a state 03 Jan 1959; while Nebraska was admitted as the 37th State before the ratification of the Fourteenth.)
03. The 11 States that seceded to form the Confederate States of America, showing date of secession (chronologically) and readmission back to the Union:
--South Carolina 20 Dec 1860 readmitted 25 Jun 1868
--Mississippi 09 Jan 1861 readmitted 23 Feb 1870
--Florida 10 Jan 1861 readmitted 25 Jun 1868
--Alabama 11 Jan 1861 readmitted 25 Jun 1868
--Georgia 19 Jan 1861 readmitted 25 Jun 1868 (2nd readmission15 Jul 1870)
--Louisiana 26 Jan 1861 readmitted 25 Jun 1868
--Texas 01 Feb 1861 readmitted 30 Mar 1870
--Virginia 17 Apr 1861 readmitted 26 Jan 1870
--Arkansas 06 May 1861 readmitted 22 Jun 1868
--Tennessee 07 May 1861 readmitted 24 Jul 1866
--North Carolina 20 May 1861 readmitted 25 Jun 1868
The ratification by the seceding states of the Thirteenth and Fourteenth Amendments was a pre-condition for readmission to the Union under the Reconstruction Act 1867, along with the abolition of slavery in their respective state constitutions. U.S. Senate and congressional representation of the States that seceded was restored upon the date of admission but “local rule” remained under “military control of the United States” and was established at much later dates for individual states.
The President of the Confederate States was Jefferson Davis. “Section 3 of the Fourteenth Amendment … barred from office anyone who had violated their oath to protect the Constitution by serving in the Confederacy. That prohibition included Davis. In 1978, pursuant to authority granted to Congress under the same section of the Amendment, Congress posthumously removed the ban on Davis with a two-thirds vote of each house and President Jimmy Carter signed it.” (see Wikipedia)
Without representation in both Houses of Congress at that time in 1866 (since1861, for that matter), the seceding States, now governed under a new Constitution of the Confederate States, may be regarded, insofar as the Citizenship Clause is concerned, to be NOT “in the United States” during the 7-year period of secession.
The term “readmission” alone already signifies that these states were OUT of, and had to be admitted back to, the United States in order to be “in the United States”; and, at the time the Citizenship Clause was debated and approved in 1866, the immediate readmission of the seceding states was fraught with uncertainty following President Lincoln’s assassination and Vice President Johnson’s assumption to the Presidency.
Besides, it can also be convincingly argued that the act of secession was tantamount to a voluntary “renunciation” by the people of the seceding States of their allegiance to the United States.
In fact, the phrase “and not subject to any foreign power” employed in the Civil Rights Act could be invoked later to declare that the Confederate States be regarded as a “foreign power” during the period of cession, which is undoubtedly the reason behind why the phrase was dropped from Senator Howard’s “language” of the Clause.
In any case, whatever would have been the outcome of the “Reconstruction Period” after the Civil War ended, the wise inclusion of the Second category of the Clause guaranteed U.S. citizenship to those “born” in the Confederate States--territories that the Union still regarded, and rightly so, to remain “subject to the jurisdiction of the United States”--even if they were to be deemed later as territories NOT “in the United States during the period of secession and rebellion.
The idea that the phrase “subject to the jurisdiction” included the vanquished Confederate States is what Alan Tauber (see "The Empire Forgotten: The Application of the Bill of Rights to U.S. Territories," November 17, 2005, pp. 20-21, available at SSRN) argues in his discussion of Justice Brown’s analysis concerning the phraseology of the Thirteenth Amendment in the Insular Case of Downes v. Bidwell (earlier cited and discussed here):
Justice Brown opinion: “To say that the phraseology of [the Thirteenth] amendment was due to the fact that it was intended to prohibit slavery in the seceded states, under a possible interpretation that those states were no longer a part of the Union, is to confess the very point in issue, since it involves an admission that, if these states were not a part of the Union, they were still subject to the jurisdiction of the United States.”
Tauber reaction: “This conception of the 13th amendment sounds strained in the light of the Amendment’s history. An equally logical, and perhaps better fitting, conception of the Amendment is that it’s reference to “any place subject to [the] jurisdiction” of the United States was not meant to refer to U.S. territories, but rather areas under the military control of the United States, given the recent end of the Civil War and the condition of most of the southern states under Union military control, it seems highly plausible that the language of the 13th was drafted to deal with that situation, as opposed to the territories, which were viewed since Dred Scott as part of the United States.”
Our rejoinder to Justice Brown and Tauber: The phrase “any place” in the Thirteenth should be viewed to include not only the “areas under the military control of the United States” but the “U.S. territories” as well. And this is consistent with another more significant aspect in the “Amendment’s history,” which was the advocacy towards “The Abolition of Slavery in the Territories.”
Slavery was the issue that precipitated the Civil War in the first place, following the very Dred Scott opinion Tauber cited concerning, in particular, slavery “in the territories” when the Court held that the Missouri Compromise that forbid slavery in an area of the Louisiana territory was unconstitutional.
Indeed, at that time after the Civil War, only 25 States remained as part of the Union, the rest of the 11 States were under “military control,” with 12 ceded territories pending statehood. Thus, owing to the large number of persons in places NOT “in the United States” enumerated earlier above, it is clear that the conferment of U.S. citizenship under the second category of the Clause to “persons subject to the jurisdiction of the United States” was, in 1866, urgent, justified and necessary.
In all, at the time the Clause was enacted, there were a total of 24 States and Territories (that were later admitted as States), including the District (not State) of Columbia, NOT “in the United States” but “subject to the jurisdiction thereof.”
Now, compare this total of 24 areas “subject to the jurisdiction of the United States” with the 25 States still “in the United States”… and ponder.
Nonetheless, in 1871, Chief Justice Salmon Chase in White v. Hart, 13 Wall. U.S. 65 “presented the traditional Lincoln theory of secession. That secession did not destroy the State of Texas, nor the obligation of Texans as citizens of the United States … Chase's opinion reaffirmed the permanence of the Union and its states and the duty of the states to the rights and obligations of all citizens” in these words:
“At no time were the rebellious States out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected, and remained the same.”
This, of course, is the view spoken in hindsight in 1871--five years after the 39th Congress enacted the Citizenship Clause in1866 and all of the Confederate States that seceded had finally returned back to the fold of the Union.
K. THE FIRST U.S. SUPREME COURT DECISION ON THE CITIZENSHIP CLAUSE SUGGESTS THAT THE PHRASE “IN THE UNITED STATES” INCLUDES “THE DISTRICT OF COLUMBIA” AND “THE TERRITORIES” BUT DOES NOT EXPLAIN THE REASON WHY
To Senator Howard, 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. This has long been a desideratum in the jurisprudence and legislation in this country."
Barely four years following its ratification in 1868, questions concerning the Fourteenth Amendment and the Citizenship Clause reached the U.S. Supreme Court for the first time in the Slaughter-House Cases, 83 U.S. 36 (1872).
In this first case, Justice Miller reiterates the "great question of citizenship" which "has long been a desideratum in the jurisprudence and legislation" Senator Howard speaks of in his sponsorship speech, phrased in this manner:
“It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. 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 … To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship … the first clause of the first section was framed … The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion … It declares that persons may be citizens of the United States without regard to their citizenship of a particular State …“The distinction between citizenship of the United States and citizenship of a state is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a state, but an important element is necessary to convert the former into the latter. He must reside within the state to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.”
What Justice Miller was saying does NOT seem to settle what Senator Howard refers to as “the great question,” a “desideratum in the jurisprudence and legislation in this country” which Justice Miller himself reiterated to be “the occasion of much discussion in the courts, by the executive departments, and in the public journals.”
Instead his statement confuses the whole issue altogether. For, at first, he mentions the “differences of opinion” concerning the view of some that--
--“no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union”
--persons “who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens”
But that the Clause, Justice Miller asserts, “puts at rest” these differences, since the Clause declares that--
--“persons may be citizens of the United States without regard to their citizenship of a particular State”
--“a man [may] be a citizen of the United States without being a citizen of a state.”
Strangely enough, Justice Miller contradicts himself later.
For how can the Clause be read to “remove this difficulty” of persons “who had been born and resided always in the District of Columbia or in the Territories, though within the United States, [but] were not [regarded as] citizens,” if, at the end of his statement, he asserts the inconsistency that:
“… it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union”?
In other words, if the Clause really recognizes that birth or residence “in the District of Columbia or in the Territories” now qualify a person to be “a citizen” (a status they were NOT regarded as eligible before), why declare the glaring contradiction that “he should be born or naturalized in the United States to be a citizen of the Union”?
Did Justice Miller read the words “in the United States” as employed in the Clause to include the “District of Columbia” and the “Territories”?
Perhaps (for this was the same reading of many at that time, although not all), but Justice Miller does not bother to explain how the Clause “removes the difficulty” that he stated was the view held 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.”
Justice Miller’s reading of the phrase “and subject to the jurisdiction thereof” does not help to clarify the matter at all--for he was trying to explain a phrase he had misread.
Justice Miller’s inconsistency and “confusion,” along with other similar contradictory statements by other Justices concerning the phrase “and subject to the jurisdiction of the United States” will be discussed in detail later here.
L. UNDER THE CITIZENSHIP CLAUSE, ABORIGINAL INDIANS QUALIFY TO BE U.S. CITIZENS ONLY UNDER A TREATY WITH THE UNITED STATES THAT COLLECTIVELY RENDERS THEM “SUBJECT TO THE JURISDICTION THEREOF”
The status of aboriginal Indians was unique. They were born, and resided, in designated reservations situated “in the United States”; however, owing to treaties entered into by and between the Indians and the Americans, they did not qualify to be regarded as having been “born … in the United States” (First category), nor were they considered to be “subject to the jurisdiction of the United States” (Second category).
Senator Johnson’s comment concerning Senator Doolittle’s proposal to insert the words “excluding Indians not taxed” during the Senate debate on the Citizenship Clause is instructive to the issue:
“With due deference to my friend from Illinois [Senator Trumbull], I think he is in error. They are within the territorial limits of the United States. If they were not, the provision would be altogether inapplicable to them. In one sense, therefore, they are a part of the people of the United States, and independent of the manner we have been dealing with them it would seem to follow necessarily that they are they are subject to the jurisdiction of the United States, as is anybody else who may be born within the limits of the United States. But … we found it necessary to recognize some kind of a national existence on the part of the aboriginal settlers of the United States … although we have been in the habit of making treaties with these several tribes, we have also from time to time, legislated in relation to the Indian tribes.”
In Elk v. Wilkins, 112 U.S. 94 (1884), Justice Gray, citing U. S. v. Osborne, 6 Sawy., 406, 409, concluded:
“'But an Indian cannot make himself a citizen of the United States without the consent and co-operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, may be a good reason why he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form. The Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since.'”
However, Justice Harlan’s dissent earlier cited challenges that reading:
“Our brethren, it seems to us, 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 in which 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.”
By legislative “Collective Naturalization,” however, all members of aboriginal Indian tribes ultimately became citizens of the United States AT BIRTH by legislation in 1924. Even under this law, the problem concerning the “antenati,” or those Indians born before the 1924 law was passed, required another law to be enacted in 1941 to enable them to acquire U.S. citizenship.
Nonetheless, what is noteworthy is that, and to use Justice Harlan’s words, “from and after the moment they became subject to the complete jurisdiction of the United States” as declared by law or treaty, the aboriginal Indians---both the “antenati” and “post Nati”--automatically acquired U.S. citizenship constitutionally under the Second category of the Citizenship Clause, irrespective of whether the law or treaty stipulated the acquisition of U.S. citizenship or not.
01. Senator Doolittle’s Amendment, “excluding Indians not taxed,” was proposed to qualify the Second category. During the Citizenship Clause debate, Senator Doolittle proposed to insert the words, “excluding Indians not taxed,” following the word “thereof” in Senator Howard’s draft.
Take note of Senator Johnson’s comment during the debate cited earlier, and to repeat in part:
“I think he [Senator Trumbull] is in error. They [the Indians] are within the territorial limits of the United States. If they were not, the provision would be altogether inapplicable to them.”
Senator Trumbull’s view (and that of the author, Senator Howard) that Senator Johnson said “is in error” was that Indians tribes were NOT “within the territorial limits of the United States,” and thus Indians were ineligible to qualify to having been “born in the United States” under the First category.
Senator Johnson then concludes: “If they were not [within the territorial limits of the United States], the provision would be altogether inapplicable to them.”
What this statement means is that, even granting that the phrase “and subject to the jurisdiction thereof” were to be regarded as a “qualifying phrase” to “All persons born in the United States,” the Indians would still be ineligible as First category citizens. For, under Senator Trumbull’s view (and that of Senator Howard, the author), they were NOT “within the territorial limits of the United States” to begin with; and so, irrespective of whether there is a “qualifying phrase” or not, they were deemed unqualified anyway.
From these observations, it is obvious that the debate concerning Senator Doolittle’s amendment was directed at the Second category, and that is: Whether the “language” of the Second category that Senator Doolittle directly quoted during the debate as the elliptical for “all persons subject to the jurisdiction of the United States” was applicable to aboriginal Indians.
And here, to repeat at page 2897, Congressional Globe, is how Senator Doolittle phrased his fears concerning the phrase:
“But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language he uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does."
This was the same thrust of his other remarks in the following pages:
--Page 2893: “… there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States.”
--Page 2897: “… 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.”
--Page 2897: “… what does it mean when you say that a people are subject to the jurisdiction of the United States …?”
Hence, it is precisely because of his apprehension, in spite of the treaties with them, that aboriginal Indians would be misinterpreted later to fall under the “very language” of the Second category--or to be regarded as “subject to the jurisdiction of the United States”--that prompted Senator Doolittle to propose that the words, ”excluding Indians not taxed,” be inserted. For, in the words of Senator Johnson, “what possible harm can there be in guarding against it?”
M. UNDER THE SECOND CATEGORY, CHILDREN OF U.S. CITIZENS BORN ABROAD ACQUIRE THE STATUS OF NATURAL BORN CITIZENS OF THE UNITED STATES CONSISTENT WITH THE “NATIONAL LAW” IN FORCE IN 1866
Chief Justice Fuller earlier in his dissent in Wong Kim Ark posed the more telling observation concerning the confusion on the “real object” of the phrase “and subject to the jurisdiction thereof”:
“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. And children who are aliens by descent, but born on our soil, 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,-an exemption apparently disregarded by the acts in respect of the exclusion of persons of Chinese descent.”
Justice Fuller continues: “… it seems to me that the rule, 'Partus sequitur patrem,' has always applied to children of our citizens born abroad, and that the acts of congress on this subject are clearly declaratory, passed out of abundant caution, to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere.
He cites the provisions: “Section 1993 of the Revised Statutes provides that children so born 'are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.' Thus a limitation is prescribed on the passage of citizenship by descent beyond the second generation if then surrendered by permanent nonresidence, and this limitation was contained in all the acts from 1790 down. Section 2172 provides that such children shall 'be considered as citizens thereof.'
Justice Fuller also cites English precedent:: “The language of the statute of 7 Anne is quite different in providing that 'the children of all natural-born subjects born out of the ligeance of her majesty, her heirs and successors, shall be deemed, adjudged, and taken to be natural-born subjects of this kingdom, to all intents, constructions, and purposes whatsoever.' “
And he adds that: “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 Fuller then concludes: “Considering the circumstances surrounding the framing of the constitution, I submit that it is unreasonable to conclude that 'naturalborn citizen' applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.”
The contradictions being raised here were obviously brought about by the misreading of the phrase “and subject to the jurisdiction thereof,” claimed officially and judicially to be a “qualifying phrase.” For if that reading was the “correct view”; then, to Justice Fuller, “the children of citizens of the United States, who have been born abroad,” NOT “in the United States,” from the time the Fourteenth Amendment was ratified “were and are aliens,” “and no statutory provision to the contrary is of any force or effect.”
01. Would Senator John McCain qualify as “natural-born” under the official and judicial reading? Presidential-hopeful Senator John McCain born, NOT “in the United States,” but “abroad” in the U.S. territory of Panama Canal Zone--even of American parents--does NOT qualify as “natural-born.”
For, under the prevailing official and judicial reading of the Citizenship Clause, Senator McCain is an “alien” at birth, which is clearly contrary to what the author Senator Howard said that his draft was “declaratory of what I regard as the law of the land already … by virtue of natural law and national law.”
Senator McCain is ineligible. For if the phrase is to be viewed, officially and judicially, as a mere “qualifying phrase,” Senator McCain and children similarly situated, in Justice Fuller’s words, “were and are aliens”--with the caveat that “no statutory provision to the contrary is of any force or effect,” other than “by naturalization in the United States,” NOT outside of the United States.
John W. Dean in his FindLaw column (11 March 2005) reviews the paper “Natural Born In The USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution's Presidential Qualifications Clause and Why We Need To Fix It,” Boston Law Review by Duggin and Collins (February 2005) and raises the same question:
“Senator Barry Goldwater, who ran for president in 1964, was born in the Arizona Territory in 1909, before statehood. Was he ‘born in the United States’? The authors believe that under early American common law, and given the Congressional intent underlying the Fourteenth Amendment, that ‘Senator Goldwater was probably safe in seeking the presidency. So too, they conclude, for anyone born in Alaska before January 3, 1959 or Hawaii before August 21, 1959 - their dates of statehood, respectively. “
And he adds: “What about those born in the nation's capital--the District of Columbia? Duggin and Collins believe they are probably ‘natural born’ citizens as Article II requires, but note that ‘a modicum of uncertainty remains.’ D.C., of course, never became a state; as a result, residents have only token representation in Congress, and the Constitution had to be amended so they could vote in presidential elections.”
In Rogers v. Bellei, 401 U.S. 815 (1971), “Bellei, born in Italy to a U.S. citizen mother, lost his U.S. citizenship at birth for failure to comply with INA residential requirement. The court held that the citizenship Clause of the Fourteenth Amendment does not apply to citizenship acquired by birth abroad to a U.S. citizen parent, and that such citizenship is therefore subject to congressional actions. The Court stated: “The central fact, in our weighing of the plaintiff’s claim … is that he was born abroad. He was not born in the United States. He was not naturalized in the United States.”
So, in Rogers v. Bellei, persons born “abroad” of American parents are “not born” or are “not naturalized” IN THE UNITED STATES.
However, grammatically read as intended, under Senator Howard’s second category of the Clause, children (like Senator McCain, Barry Goldwater and Bellei) fall under “the other class of persons” who are “citizens of the United States” at birth, even though born NOT “in the United States,” since they qualify at birth as “persons subject to the jurisdiction of the United States,” having been born of parents who are citizens of the United States--or of “persons subject to the jurisdiction of the United States.”
NOTE it well the significance of the phrase Justice Fuller used, “by naturalization in the United States,” since Congress has used its power of naturalization to “naturalize” persons in Puerto Rico and Guam, among other territories “belonging to the United States,” regarded as NOT “in the United States” for purposes of qualifying under the First category of “born … in the United States” but, for naturalization purposes, is suddenly read to connote “in the United States.”
02. The Second Category as Jus Sanguinis. Laudably, the Second category--insofar as the children of U.S. citizens born 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 “natural-born” citizenship status upon children of U.S. citizens “born abroad” (to include, of course, presidential-hopeful Senator John McCain), without any need of a “statutory provision.”
This “jus sanguinis” feature of the Second category is what Chief Justice Taft also mentioned in Weedin v. Chin Bow, 274 U.S. 657 (1927):
“The attitude of Chief Justice Fuller and Mr. Justice Harlan 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, 1:354, 357--58, 361—62 (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.”
In any case, the recognition in the Second category allowing the application of “jus sanguinis” in countries where the “jus soli” principle prevails is still consistent with Senator Howard’s declaration that his draft “will include every other class of persons.”
N. THE TERRITORIAL CLAUSE IS INVOKED TO JUSTIFY THE INSULAR CASES AND THE DOCTRINE OF INCORPORATED TERRITORY
Early on, in the American Territorial system, territories could be either "Organized" or "Unorganized." “If a Territory did not have self-government, it was unorganized: if it did, it was organized; and a Territory had to first be organized to ever hope to eventually achieve Statehood.”
The territories that were organized and later attained the status of “States” include those that were part of the following acquisitions:
--Louisiana Purchase Treaty 30 April 1803
--Florida Purchase Treaty 22 February 1819
--Treaty of Guadalupe Hidalgo 02 February 1848
01. The Insular Cases. In order to fully grasp the details of the Insular Cases, this rather lengthy discussion on that subject is liberally quoted below, downloaded from the website accessible at: http://www.thegreenpapers.com/slg/explanation-statehood.phtml
“All this changed just after the turn of the last Century, thanks to one of the more confusing series of decisions ever issued by the United States Supreme Court in what came to be known as the Insular Cases: these were three cases argued and then decided together in which, at issue, was the relationship with the Federal Government of the newly acquired territories so recently attached to the United States partially as the result of the Spanish-American War (Cuba … becoming part of America's growing "empire" directly from that War … All of these new territories had in common the fact that they were all islands (or groups of islands, in the case of the Philippines- hence the use of the term "insular" to describe the cases) …
“These Insular Cases were all decided on 27 May 1901: the first two cases, DeLima v. Bidwell [182 U.S. 1] and Dooley v. United States [182 U.S. 222] posed the question: when the U.S. acquired Puerto Rico, did that island cease to be a "foreign country" within the meaning of existing Federal tariff laws? The Court answered "yes" in what were a 6-3 and a 5-4 decision, respectively: in DeLima, it ruled that imports from Puerto Rico were no longer subject to a tariff and, in Dooley, it made the same ruling as regards exports to Puerto Rico. But the final case, Downes v. Bidwell posed an even dicier question: was the island covered by the constitutional requirement [Article I, “Section 8, clause 1] that "all Duties, Imposts and Excises shall be uniform throughout the United States"? Put another way: did the U.S. Constitution automatically apply to the island of Puerto Rico once it had- as the Court had determined in the two earlier cases that day- ceased to be a "foreign country"?
“The reason that the decision was confusing was that one group of 4 Justices- Justices Gray, McKenna, Shiras and White (the dissenters in Dooley; all but Gray dissenting in DeLima) logically opined that Congress is not required to make territory an inherent part of the United States- and, thus, subject to the Constitution- immediately upon acquiring it and can, at any time later, determine the proper disposition of such territory (they cited Article IV, Section 3, clause 2- which reads: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State- as giving Congress rather unfettered power to classify the non-States pretty much as it saw fit), while another group of 4 Justices: Chief Justice Fuller and Justices Brewer, Harlan and Peckham (the dissenters in Downes) just as logically opined that "the Constitution follows the flag" (that is, as soon as a newly acquired territory such as Puerto Rico was so acquired, it became an inherent part of the United States). The two views were incompatible, but made perfect sense in and of themselves: either Puerto Rico- while ceasing to be a "foreign country"- was automatically a part of the United States as a result (the Fuller/Brewer/Harlan/Peckham argument) or had to wait for Congress to make it part of the United States or not at its own discretion with the proviso that, should Congress later make Puerto Rico a part of the United States, the Constitution would then apply automatically- just not at the moment before Congress had so acted (the Gray/McKenna/Shiras/White position)
“The problem was that there was a 9th Justice, Justice Brown, who ended up writing the controlling opinion in all three Insular Cases only because he was the 5th vote in each of the 5-4 decisions; but his opinion was actually one on the extreme- for he argued that the Federal Constitution could only automatically apply to States and could never apply to Territories automatically (put another way: Brown argued that Congress did not have the Power at all to make Territories- even those that were continental and contiguous [and keep in mind that there were 4 of these- Arizona, Indian Territory, New Mexico and Oklahoma- still in existence in 1901]- an inherent part of the United States!)
“Justice Brown here cites language such as that in the 13th Amendment, which states: ‘Neither Slavery nor Involuntary Servitude ... shall exist within the United States, or any place subject to their jurisdiction as showing that besides ‘the United States,’ there were other places ‘subject to their jurisdiction’ not part of the United States.
“The Downes opinion threw everything into a bit of a tizzy for the time being, as it now meant that- unless an Act of Congress specifically extended a Constitutional Right to Arizona, New Mexico and Oklahoma (let alone Guam, Hawaii or Puerto Rico)- it did not apply therein; moreover, what Congress could give by mere statute, Congress could so easily take away…
“It was in the 1904 case of Dorr v. United States that the views of Gray, McKenna, Shiras and White would finally prevail (even though Justices Gray and Shiras had been replaced by Justices Holmes and Day, respectively, by then). Justice Day wrote the opinion of the Court in a case in which trial by jury was not extended to the Philippines absent an Act of Congress doing so on the grounds that there were two classes of Territories- those inherently part of the United States, in which the Constitution prevailed automatically, and those not part of the United States where the Constitution did not automatically prevail (though Congress could, of course, always change a Territory's status).
“Gone was the old distinction between the "organized" and "unorganized"- replaced by a distinction between those Territories incorporated into the United States and those that were unincorporated (that is, not inherently part of the United States) … Indian Territory … Alaska and Hawaii … the Philippines and Puerto Rico were unincorporated.
“According to the Opinion of the Court in Dorr, in both classes of U.S. Territory, "fundamental rights" (what we would call substantive rights or civil liberties: say, freedom of the press or the right to acquire and enjoy property and the like- the "immunities" of U.S. Citizenship) under the Constitution automatically apply; however, "formal rights" (what we might call procedural rights or civil rights, as opposed to civil liberties: the right to have a grand jury hearing prior to indictment, for example- the "privileges" of U.S. Citizenship) under the Constitution only automatically apply to incorporated Territories; those in unincorporated Territories would only gain such formal/procedural protections by specific Act of Congress (which Congress could later rescind by simple statute) extending same to such a class of Territory.”
02. Dissent in the Insular Cases. Judge Torruella discusses the “other view” of the Insular Cases, dissenting in the recently-decided case of Iguarta-de la Rosa v. U.S (1st District, decided 03 August 2005):
“… the Treaty of Paris left to future action by Congress what should be "[t]he civil rights and political status of the native inhabitants of the territories … ceded to the United States". Thus, for the first time in American history, the United States acquired territory without ipso facto granting its inhabitants citizenship, and therefore, also contrary to its founding history, the United States became a colonial nation.
“… a challenge was made to its provisions allowing the imposition of duties on goods imported into Puerto Rico from the United States. It was claimed that this tax was contrary to the Uniformity Clause of Article I, Section 8 of the Constitution. U.S. Const., art. I, § 8, cl. 1 ("all Duties, Imposts, and Excises shall be uniform throughout the United States").
“There is no question that the Insular Cases are on par with the Court's infamous decision in Plessy v. Ferguson (1896) in licencing the downgrading of the rights of discrete minorities within the political hegemony of the United States (holding that it was not a violation of the Equal Protection Clause for a state law to segregate white and colored people in public facilities provided "equal" alternatives were provided for each race);
"Those who advocated overseas expansion faced this dilemma: What kind of relationship would the new peoples have to the body politic? Was it to be the relationship of the Reconstruction period, an attempt at political equality for dissimilar races, or was it to be the Southern "counterrevolutionary" point of view which denied the basic American constitutional rights to people of color? The actions of the federal government during the imperial period and the relation of the Negro to a status of second-class citizenship indicated that the Southern point of view would prevail. The racism which caused the relegation of the Negro to a status of inferiority was to be applied to the overseas possessions of the United States."
“The Insular Cases, would today be labeled blatant "judicial activism" … They are anchored on theories of dubious legal or historical validity, contrived by academics interested in promoting an expansionist agenda. These theories in turn provided a platform that allowed a receptive bare plurality of Justices to reach a result unprecedented in American jurisprudence and unsupported by the text of the Constitution.
“In fact, what precedent existed was contrary to the premise underlying the Insular Cases, for in Dred Scott, Chief Justice Taney had concluded:
“There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure … [N]o power is given to acquire a Territory to be held and governed permanently in that character.
“This conclusion, however, presented no obstacle to Justice Brown, who wrote the opinion of the Court in Downes v. Bidwell, the leading Insular Case:
“We are also of opinion that 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."
“Justice Brown goes on to say, in language that is tinged by Plessy-like views:
“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 … which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians.
“He concluded that:
“A false step at this time might be fatal to what Chief Justice Marshall called the American Empire … 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; and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out … We decline to hold that there is anything in the Constitution to forbid such action. We are therefore of the opinion that the Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution ….
“Justice White's concurrence in Downes provided the central support for the seminal "unincorporated territory" doctrine for which the Insular Cases have become known. This doctrine states that in the case of unincorporated territories -- that is, those for which, at the time of acquisition, the United States did not express an intention of incorporating into the Union -- only those parts of the Constitution dealing with "fundamental" rights apply. See Coudert, supra, note 32, at 832 (relating a conversation with Justice White in which it was "evident that he was much preoccupied by the danger of racial and social questions of a very perplexing character and that he was quite as desirous as Justice Brown that Congress should have a very free hand in dealing with the new subject populations").
“Chief Justice Fuller's dissent, which was joined by Justices Harlan, Brewer and Peckham, and thus gathered the most votes, followed a strict construction of the Constitution. It rejected the plurality's conclusion as inconsistent with the Constitution, because it
“assumes that the Constitution created a government empowered to acquire countries throughout the world, to be governed by different rules than those obtaining in the original states and territories, and substitutes for the present system of republican government a system of domination over distant provinces in the exercise of unrestricted power.
“Justice Harlan's dissent was equally forceful in pointing out that:
“Still less is it true that Congress can deal with new territories just as other nations have done or may do with their new territories … Monarchical and despotic governments, unrestrained by written constitutions, may do with newly acquired territories what this government may not do consistently with our fundamental law. To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution … The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces,--the people inhabiting them to enjoy only such rights as Congress chooses to accord to them,-- is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.
“Justice Harlan went on to say, in part to answer the racial overtones of the plurality, that:
“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 … The Constitution is supreme over every foot of territory, wherever situated, under the jurisdiction of the United States, and its full operation cannot be stayed by any branch of the government in order to meet what some may suppose to be extraordinary emergencies. If the Constitution is in force in any territory, it is in force there for every purpose embraced by the objects for which the government was ordained.
“Although decided by an exiguous plurality of five votes to four, and based on dubious constitutional foundations, the Insular Cases became an article of faith in American constitutional dogma, with far-reaching consequences on the lives of the millions of persons whom they impacted in very fundamental ways.”
03. Court Decisions after the Insular Cases. Half a century later, In Reid v. Covert, 354 U.S. 1 (1957), Justice Black lambasted the “very dangerous doctrine” enunciated by the Insular Cases, the pertinent part of which follows:
“The ‘Insular Cases,’ which arose at the turn of the century, involved territories which had only recently been conquered or acquired by the United States. These territories, governed and regulated by Congress under Art. IV, 3, had entirely different cultures and customs from those of this country. This Court, although closely divided, ruled that certain constitutional safeguards were not applicable to these territories since they had not been ‘expressly or impliedly incorporated’ into the Union by Congress. While conceding that ‘fundamental’ constitutional rights applied everywhere, the majority found that it would disrupt long-established practices and would be inexpedient to require a jury trial after an indictment by a grand jury in the insular possessions.
“The ‘Insular Cases’ can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. None of these cases had anything to do with military trials and they cannot properly be used as vehicles to support an extension of military jurisdiction to civilians. Moreover, it is our judgment that neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.”
In U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990), Chief Justice Rehnquist: opined:
“The Insular Cases … held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 (1922) (Sixth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U.S. 91 (1914) (Fifth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U.S. 138 (1904) (jury trial provision inapplicable in Philippines) … Only "fundamental" constitutional rights are guaranteed to inhabitants of those territories … And certainly, it is not open to us in light of the Insular Cases to endorse the view that every constitutional provision applies wherever the United States Government exercises its power.
Even Justice Brennan, with whom Justice Marshall joins, dissenting, said:
“The Insular Cases … are likewise inapposite. The Insular Cases all concerned whether accused persons enjoyed the protections of certain rights in criminal prosecutions brought by territorial authorities in territorial courts. These cases were limited to their facts long ago, see Reid v. Covert, 354 U.S., at 14 (plurality opinion) ("[I]t is our judgment that neither the cases nor their reasoning should be given any further expansion"), and they are of no analytical value when a criminal defendant seeks to invoke the Fourth Amendment in a prosecution by the Federal Government in a federal court.”
04. The “occult meaning” of the Doctrine of Incorporated Territory the Insular Cases enunciated. The Doctrine of Incorporated Territory can be summarized by quoting only a few of the words of what the Justices, dissenting in Downes v. Bidwell said:
Chief Justice Fuller, with whom concurred Justices Harlan, Brewer and Peckham:
“… if an organized and settled province of another sovereignty is acquired by the United States, Congress has the power to keep it, like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period … irrespective of constitutional provisions … Great stress is thrown upon the word ‘incorporation,’ as if possessed of some occult meaning …”
Justice Harlan, dissenting:
“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.”
Sadly, the “occult meaning” of the Doctrine of Incorporated Territory and the “disembodied shade” of “UNincorporated” territories to this day persists.
O. UPON THE RATIFICATION OF THE FOURTEENTH AMENDMENT, THE TERRITORIAL CLAUSE APPLIES ONLY TO “TERRITORY” NOT TO “PERSONS” RESIDING OR BORN IN TERRITORY WHO ARE “SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
Under the 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."
01. The Territorial Clause speaks of “PROPERTY” NOT of “PERSONS”. 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 "dispose of" them as if these "PERSONS" were one kind of "PROPERTY," like the "PROPERTY" named "Dred Scott"?
In Dred Scott v. Sandford, 60 U.S. 393 (1857), Justice 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 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. “
Under the Court’s reading of the Territorial Clause, therefore, Territorial Filipinos are to be treated---like Dred Scott--“as an ordinary article of merchandise and traffic, whenever profit could be made by it” who could be “disposed of” in the manner of “a mere transfer of rights of property.”
There were an estimated ten million Territorial Filipinos upon the ratification of the Treaty of Paris in 1899. The United States paid 20 million Dollars to possess them and the territory they were inhabitants of. So, “as an ordinary article of merchandise and traffic” involving “a mere transfer of rights of property,” a Territorial Filipino was bought for two Dollars, even much less if the cost per hectare of the real estate is included.
In short, under the Territorial Clause as interpreted under the Insular Cases, Territorial Filipinos were to be treated, NOT as PERSONS, but as disposable, movable “PROPERTY,” for they had “no rights which the white man was bound to respect.”
Congress, to repeat, 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 changed. Congress is clipped off its power to imagine that it can still “dispose of” “all persons subject to the jurisdiction of the United States” in “territory … belonging to the United States” who are now declared to be "citizens of the United States.”
The Congress, therefore, should lay its hands off “persons subject to the jurisdiction of the United States” born or residing in that Territory or, in Senator Trumbull’s word, “everywhere,” for they are “persons” the Citizenship Clause in Section 1 of the Fourteenth Amendment now shields with the constitutional armor of inviolability.
02. The Second category in the Citizenship Clause does NOT speak of “TERRITORY” but of “PERSONS.” To restate what Justice Brown said in Downes v. Bidwell: “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: “We are,” therefore “of the opinion that 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.”
But the Court has misread the Citizenship Clause in relation to the Territorial Clause.
The Citizenship Clause does NOT refer to territories acquired by treaty, to territories ”organized” or “incorporated,” nor to “any place” at all “belonging to the United States.”
The Second category of the Citizenship Clause deals with the SANCTITY--NOT POSSESSION--OF PERSONS, of “all persons subject to the jurisdiction of the United States” who are, in the words of Senator Trumbull, “everywhere” and, in the words of the author Senator Howard, “beyond the legislative power.”
And nowhere is there in the phraseology a hint of “territory”--instead, “ALL PERSONS.”
Thus, whatever the “implication” from “the power to acquire territories by treaty,” as premised by Justice Brown, does NOT include the status of PERSONS “subject to the jurisdiction of the United States” residing or born in ceded territory who become citizens of the United States under the Second category of the Citizenship Clause discussed at length earlier here.
The 1787 “power to acquire territories by treaty” that expands the “American Empire” is conceded, but that power must bow to the 1868 command that “all persons subject to the jurisdiction of the United States” residing or born in territories once acquired under that “plenary” Imperial Power invoked “are citizens of the United States.”
03. Territorial Clause is relied on to justify Citizenship by “federal statute.” In the Position Paper of the Task Force on Free Association, “Guam’s Political Future: An Argument for Free Association with U.S. Citizenship,” Asian-Pacific Law and Policy Journal, Vol. 4, Issue 1 (Winter 2003), the author asserts:
“U.S. law acknowledges several ways that an individual can obtain citizenship. A person can acquire citizenship at birth jus soli (born on United States soil) or jus sanguinis (born to a U.S. citizen parent) Citizenship can also be acquired after birth through the process of naturalization, the procedures for which are detailed in the U.S. Immigration and Nationality Act (INA). The current INA (Section 101(a)(38) ) clarifies that Guam, Puerto Rico, and the U.S. Virgin Islands count as “United States soil” for purposes of conferring citizenship jus soli … [B]ecause they acquired their citizenship by statute [the native inhabitants of these territories] do not have constitutionally-protected citizenship--they do not have a constitutional right to retain their U.S. citizenship …They are not ‘Fourteenth-Amendment-first-sentence citizens’ … The consequences of not having this ultimate protection has significant implications when it comes to the stability and certainty of retaining one’s citizenship. “
The paper claims that “U.S. law acknowledges several ways that an individual can obtain citizenship. A person can acquire citizenship at birth … jus sanguinis (born to a U.S. citizen parent).”
But the Citizenship Clause as it is now officially and judicially read is clear: “All persons born or naturalized in the United States … are citizens of the United States …” In other words, under this category, U.S. citizenship is conferred upon “persons born or naturalized” ONLY “in the United States”--not anywhere else.
And there is no mention whatsoever of parentage in the Clause. Thus, the “jus sanguinis” (born to a U.S. citizen parent) cited above must fall under the “citizenship by statue” category, for “they are NOT ‘Fourteenth-Amendment-first-sentence citizens,” as claimed, in the manner, that is, that the Clause is now officially and judicially read.
Justice Fuller’s dissent in Wong Kim Art, cited earlier here, is instructive:
“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.'”
So, children born abroad of U.S. citizens “are not citizens.” They need to be “in the United States” and NOT outside of the United States so that they can qualify, as worded, to be “naturalized in the United States.”
The paper also claims that the islands of “Guam, Puerto Rico, and the U.S. Virgin Islands are counted as “United States soil” for purposes of conferring citizenship “jus soli (born on United States soil).”
But if these islands are to be regarded as already “in the United States” (which is obviously what the phrase used, “United States soil” means), persons “born” in these islands already qualify to be “Fourteenth-Amendment-first-sentence citizens.”
So, the question begs. Why does the paper refer to the status of the native inhabitants of these islands “citizenship by statute”?
If the native inhabitants are regarded by law to be “in the United States” for purposes of qualifying to be “naturalized”; then, these natives also qualify to be deemed as having been “born in the United States,” since the conjunction used to connect “born” and “naturalized” in the phrase “All persons born or naturalized” is “or.”
Even then, if they acquired their citizenship by “Collective Naturalization” claimed to be authorized under the “plenary” powers of the Territorial Clause; then, they still need to be declared as having been born OUTSIDE of, and NOT, “in the United States” as “aliens” so that they can qualify to be “naturalized in the United States.”
Whichever option is taken to legitimize their status, the difficulty and uncertainty brought about by the misreading of the Citizenship Clause remains to fester.
But correctly read under the Second category, children of U.S. citizens born “abroad” are U.S. citizens. And native inhabitants of, and those born in, Puerto Rico, Guam and the U.S. Virgin Islands acquire U.S. citizenship from and after the moment they become “subject to the jurisdiction of the United States” AT BIRTH or AFTER BIRTH.
P. THE INAPPLICABILITY OF THE NATURALIZATION CLAUSE TO TERRITORIAL FILIPINOS
Congress is empowered "to establish an uniform rule of naturalization."
But this power is irrelevant, for under Sec. 101(a), par. 23 INA:
“The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever."
In other words, “naturalization" is a status a person can ONLY acquire “AFTER BIRTH." It is certainly inapplicable to a person the Constitution under the Citizenship Clause confers the status of “citizen of the United States,” or even a ”National” AT BIRTH.
Congress under the power of naturalization has "a power to confer citizenship, not a power to take it away," quoting Chief Justice Marshall's well-considered and oft-repeated dictum in Osborn and cited in Wong Kim Ark.
Afroyim v. Rusk, 387 U.S. 253 (1967) further held that:
“To uphold Congress' power to take away a man's citizenship because he voted in a foreign election … would be equivalent to holding that Congress has the power to ‘abridge,’ ‘affect,’ ‘restrict the effect of,’ and ‘take … away’ citizenship. Because the Fourteenth Amendment prevents Congress from doing any of these things, we agree with THE CHIEF JUSTICE'S dissent in the Perez case that the Government is without power to rob a citizen of his citizenship …”
Thus, Territorial Filipinos do NOT qualify to be “naturalized in the United States,” since they were “persons subject to the jurisdiction of the United States” AT BIRTH who acquired United States citizenship under the Second category of the Citizenship Clause upon the ratification of the 1898 Treaty of Paris on 11 April 1899.
So, under the Second category, Territorial Filipinos are citizens of the United States. Having acquired that status, Congress is devoid of “power to take it away,” for “the Government is without power to rob a citizen of his citizenship.” And, more importantly, the Citizenship Clause is “beyond the legislative power.”
Q. ARTICLE IX OF THE 1898 TREATY OF PARIS AUTHORIZING CONGRESS TO DETERMINE THE “POLITICAL STATUS” OF TERRITORIAL FILIPINOS IS VIOLATIVE OF THE CONSTITUTIONAL BIRTHRIGHT ACQUISITION OF U.S. CITIZENSHIP OF “PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
Article IX of the 1898 Treaty of Paris provides 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."
01. A treaty provision cannot annul a constitutional command. Justice Harlan in his dissent in Downes v. Bidwell 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. The grant by Spain could not enlarge the powers of Congress, nor did it purport to secure from the United States a guaranty of civil or political privileges.
“Indeed, a treaty which undertook to take away what the Constitution secured, or to enlarge the Federal jurisdiction, would be simply void.
“'It need hardly be said that a treaty cannot change the Constitution, or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government.' The Cherokee Tobacco, 11 Wall. 620, sub nom. 207 Half Pound Papers of Smoking Tobacco v. United States, 20 L. ed. 229.
“So, Mr. Justice Field in De Geofroy v. Riggs, 133 U.S. 267. Rep. 297: 'The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the states. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent.'
Reid v. Covert, 354 U.S. 1 (1957) affirms 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 … This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.”
It is, therefore, ludicrous to insist that a mere treaty can nullify a RIGHT as precious as the RIGHT to U.S. citizenship the Citizenship Clause constitutionally guarantees to Territorial Filipinos, “persons subject to the jurisdiction of the United States.”
02. Unlike treaties with the Indian aboriginals, the Treaty of Paris was entered into by and between the United States and the Spanish Crown with no representation from Territorial Filipinos. The Protocol of Peace between the United States and the Spanish Crown was signed 12 August 1898. Article III of the Protocol reads.
“The United States will occupy and hold the city, bay and harbor of Manila, pending the conclusion of a treaty of peace which shall determine the control, disposition, and government of the Philippines.”
On 06 February 1898, the U.S. Senate ratified the Treaty of Paris by a vote of 52 to 27. And on 09 March 1898, the Queen Regent of Spain, María Cristina, signed the Treaty of Paris, breaking the deadlock in the Spanish Cortes.
The Treaty of Paris was proclaimed 11 April 1898. During the negotiations--
Natives of Las Islas Filipinas through Felipe Agoncillo's Memorial to the U.S. Senate Addressed to the U.S. Secretary of State (24 January 1899) presented objections:
“I respectfully submit that the United States, not having received from the inhabitants of the Philippine Islands authority to pass laws affecting them, its legislation as to their welfare possesses no binding force upon my people.
”Spain could not deliver possession of the Philippines to the United States, she having been ousted by their people, and in fact at the present moment the United States holds only an entrenched camp, controlling one hundred and forty-three square miles, with 300,000 people, while the Philippine Republic represents the destinies of nearly 10,000,000 souls, scattered over an area approaching 200,000 square miles.
“Spain having no possession (except minor garrison posts), and no right of possession in the Philippines, could confer no right to control them.”
Not only that, during the Treaty negotiations, “Spanish commissioners argued that Manila had surrendered after the armistice and therefore the Philippines could not be demanded as a war conquest, but they eventually yielded because they had no other choice, and the U.S. ultimately paid Spain 20 million dollars for possession of the Philippines.”
Cession of La Islas Filipinas was, therefore, in virtue of a PURCHASE, NOT as part of the “spoils of war.”
So, unlike treaties with Indian tribes, the 1896 Treaty of Paris was negotiated and ratified exclusively by and between the United States and the Spanish Crown, without the participation of, or representation by, the natives of Las Islas Filipinas.
R. PROVISIONS OF THE 1934 PHILIPPINE INDEPENDENCE ACT UNILATERALLY DENATIONALIZE TERRITORIAL FILIPINOS WHO WERE BORN CITIZENS OF THE UNITED STATES UNDER THE SECOND CATEGORY OF THE CITIZENSHIP CLAUSE, AND RENDER THEM STATELESS AT BIRTH
The same constitutional supremacy of the Citizenship Clause over treaties applies to mere acts of Congress. The author, Senator Howard, made it clear: The Citizenship Clause “is beyond the legislative power.”
However, Section 8(a) of the 1934 Philippine Independence Act states:
"(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 16 of the Act, declares:
"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."
01. Alienage as “a presupposition contrary to fact.” The provisions of the Act have already been discussed thoroughly in Part I of this paper and need not be repeated, except to restate that, even if Territorial Filipinos “shall be considered as if they were aliens” and hence subject to U.S. immigration laws, this is simply a “presupposition contrary to fact.”
And what is “contrary to fact” is the “presupposition” that, PRIOR to “the final and complete withdrawal of American Sovereignty” on 04 July 1946:
--the Philippine Islands was “a separate country” or could even be regarded “to the same extent as in the case of other foreign countries”
--Territorial Filipinos were “aliens.”
But it is a deadly “presupposition,” for what is “contrary to fact,” authorizes the humiliating deportation of Territorial Filipinos--“persons subject to the jurisdiction of the United States” and hence “citizens of the United States”--who violate U.S. immigration laws by “overstaying” in the United States!
Under this aberrant episode of the American system of justice, therefore, a “presupposition contrary to fact” can be made the basis for their laws.
Thus, a U.S. law declaring that ALL Territorial Filipinos are TERRORISTS (even RAPISTS, if the Law also says so)--which is, of course, a declaration of “presupposition contrary to fact”--is LEGAL, is enforceable, even if untrue.
In any case, the FACTS are: The Philippine Islands was territory over which the United States was sovereign between 11 April 1899 and 04 July 1946, following its cession from the Spanish Crown under the 1898 Treaty of Paris, and Territorial Filipinos were citizens of the United States under the Second category of the Citizenship Clause of the Fourteenth Article of Amendment to the Constitution of the United States.
S. SUMMARY OF THE CONFUSION AND CONTRADICTIONS THE MISREADING OF THE CITIZENSHIP CLAUSE ENGENDERED
In the light of all these arguments presented, the true meaning of the Second category in the Citizenship Clause should now be afforded the recognition and significance Senator Howard intended it to convey.
Without intending to be disrespectful, it is evident that the Court’s reading of the phrase “and subject to the jurisdiction thereof” as a “qualifying phrase” was viewed with reluctance (Justice Gray using such uncertain and cautious words as “would appear”), which was not without contrary yet equally convincing arguments from justices dissenting.
Having overlooked the grammatical reading of the phrase as intended, it would seem that the Court was struggling to explain a phrase they had woefully misread and, as to be expected, was faced with contradictions in their explanations and the difficulty of reconciling their flawed justifications.
Must we, therefore, continue to misread the phrase “and subject to the jurisdiction thereof” in the Citizenship Clause as a “qualifying phrase” in order to accommodate and justify already “recognized exceptions” of the ancient common law rule on birthright, “exceptions” which are, to repeat, as old as the rule itself?
01. The Second category, which is consistent with what Senator Howard said that his draft of the Clause “will include every other class of persons,” resolves the various Immigration and naturalization controversies in the past concerning the status of the following:
--Children of U.S. citizens born abroad (“Jus Sanguinis” or U.S. citizenship by descent)
--Female U.S. citizen married to a foreigner and her children (Equality Male and Female)
--Puerto Ricans, Guamanians and inhabitants of other U.S. territories and the Aboriginals (Collective Naturalization including those at birth)
02. The inapplicability of the Territorial Clause and the Naturalization Clause to Territorial Filipinos, natural-born citizens of the United States under the Second category in the Citizenship Clause, grammatically read as intended
03. The unconstitutionality of the provisions of the 1898 Treaty of Paris and the 1934 Philippine Independence Act downgrading the political status Territorial Filipinos acquired under the Citizenship Clause, grammatically read as intended
04. The Schemes concocted to deny Fourteenth Amendment Birthright to Territorial Filipinos. The various schemes the U.S. Congress concocted to deny Territorial Filipinos their BIRTHRIGHT include several firsts in U.S. legal and constitutional history:
--The uncertain “political status” of inhabitants of a ceded territory under the Treaty of Paris
--The new “occult” Doctrine of Incorporated Territories (originally either “organized” or “unorganized”)
--The newly-created oxymoron status of “Non-citizen nationals” conferred upon Filipinos yet mandated to “owe allegiance to the United States”
--The anomaly of American nationals AT BIRTH, entitled to the protection of the United States, yet “considered as if they were aliens”
--Territory “subject to the jurisdiction of the United States,” over which the United States exercised the rights of sovereignty, yet considered “to the same extent as in the case of other foreign country”
--The denial of Birthright citizenship to Territorial Filipinos, “persons subject to the jurisdiction of the United States,” born in territory over which the United States is sovereign
05. Territorial Filipinos were rendered STATELESS AT BIRTH. The injustice inflicted upon Territorial Filipinos by the Americans was purely a case of BIRTHPLACE PREJUDICE ABORTING BIRTHRIGHT CITIZENSHIP, of a COLLECTIVE DENATIONALIZATION, rendering Territorial Filipinos virtually WITHOUT ANY COUNTRY--STATELESS--AT BIRTH!
The term “stateless person” is defined as:
“A person who is not considered as a national by any State under the operation of its law.” (UNCHR)
“People may also be stateless if they are members of a minority ethnic group which is denied citizen status in the country on whose territory they are born.” (see Wikipedia)
Section 24 of the International Covenant on Civil and Political Rights of the Office of the United Nations High Commissioner on Human Rights (UNCHR) is relevant:
“3. Every child has the right to acquire a nationality.”
To that, add Section 12 of the UNCHR Convention relating to the Status of Stateless Persons which in part provides that:
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
4. No one shall be arbitrarily deprived of the right to enter his own country.
The “entry into force” of these two Human Rights Covenants was only recently, on 23 March 1976 and 06 June 1960, respectively. Yet, had it been in force in 1934, the United States, a signatory, would have grossly violated, without any doubt, the provisions embodied in these Covenants.
For it was, to repeat, in 1934 that Section 8(a) of the Philippine Independence Act stipulated a “presupposition contrary to fact” (“shall be considered as if”) worded this way:
"(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 ..."
The glaring “Human Rights” violations under U.S. immigration laws and implementing orders, as defined, would include the following:
--“Under the operation of [U.S.] law,” Territorial Filipinos are considered to be “aliens”
--The children of Territorial Filipinos are deprived of their “right to acquire a nationality”
--Territorial Filipinos are “denied citizen status in a country on whose territory they are born”
--Territorial Filipinos, “lawfully within the territory of a State,” are denied “the right to liberty of movement and freedom to choose his residence”
--Territorial Filipinos are “arbitrarily deprived of the right to enter his own country”
In short, Territorial Filipinos, as in Dred Scott, were merely part of the disposable “property” of the United States; they possessed "no rights which the white man was bound to respect."
In any case, this blatant racism and the injustice it spawned which continues to persist to this day must now reconcile with the command of the Citizenship Clause, grammatically read as intended by Senator Jacob Merritt Howard, the author, proclaiming that:
--TERRITORIAL FILIPINOS--“PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”--ARE CITIZENS OF THE UNITED STATES.
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To repeat the command in Section 2 (a) of the Philippine Independence Act:
"(1) All citizens of the Philippine Islands shall owe allegiance to the United States."
Part IV will discuss the legal and historical context of the American mandate that Territorial Filipinos “shall owe allegiance to the United States” but, alas, “shall be considered as if they were aliens” and hence shall be required to secure a VISA to enter their mother country, ”the United States.”
“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. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”--Sponsorship speech of Senator Jacob Howard, author of the Citizenship Clause, 30 May 1866 (Note commas between “and subject to their jurisdiction.”)
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“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 allegiance if you please, to some other government that he is “subject to the jurisdiction of the United States … 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 … We propose to make citizens of those of those brought under our jurisdiction in that way [“by special provision of legislation” under a treaty]. Nobody objects to that, I reckon.”--Senator Lyman Trumbull, Senate Committee on Laws Chair, the Citizenship Clause debate, 30 May 1866
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"But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language he uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does."---Senator James Doolittle, the Citizenship Clause debate, 30 May 1866.
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“The purpose is manifest, to establish through the whole jurisdiction of the United States ONE PEOPLE … The amendment embodies all that the statesmanship of the country has conceived for accommodating the Constitution and the institutions of the country to the vast additions of territory, increase of the population, multiplication of States and Territorial governments, the annual influx of aliens, and the mighty changes produced by revolutionary events, and by social, industrial, commercial development. 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. Citizenship is assigned to nativity in any portion of the United States, and every person so born is a citizen.”---The Slaughter-House Cases, 83 U.S. 36 (1872), the first U.S. Supreme Court ruling on the Citizenship Clause
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“The Constitution declares that it 'shall be the supreme law of the land.' But the court in effect adjudges that the Philippine Islands are not part of the 'land,' within the meaning of the Constitution, although they are governed by the sovereign authority of the United States, and although their inhabitants are subject in all respects to its jurisdiction,-as much so as are the people in the District of Columbia or in the several states of the Union. No power exists in the judiciary to suspend the operation of the Constitution in any territory governed, as to its affairs and people, by authority of the United States.”--Justice Harlan, dissenting in Dorr v. U S, 195 U.S. 138 (1904)
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A. THE CITIZENSHIP CLAUSE IS “DECLARATORY OF … THE LAW OF THE LAND ALREADY … BY VIRTUE OF NATURAL LAW AND NATIONAL LAW,” AFFIRMING THE COMMON LAW BIRTHRIGHT RULE--“BIRTH WITHIN THE REALM AND WITHIN THE ALLEGIANCE”
A Second category of citizens of the United States is consistent with Senator Howard's sponsorship speech, asserting that his Draft "is simply declaratory of what I regard as the law of the land already … by virtue of natural law and national law."
01. Natural Law--The Common Law Rule on Birthright Citizenship. A 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 U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), restates the “fundamental principle of the common law” 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 …”
He continues: “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 Postnati,' 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 cited footnote:
“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.”
Justice BRADLEY, dissenting in Wong Kim Ark, similarly said:
“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, depending upon citizenship of the United States and the citizen's place of residence … Inhabitants of Federal territories and new citizens, made such 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 … “
Grammatically read, therefore, the Citizenship Clause recognizes the English common-law BIRTHRIGHT RULE--“birth within the realm and within the allegiance.”
In Barber v. Gonzalez, 347 U.S. 637 (1954) at Footnote (1):
"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),” and at Section 2 (1) of the Philippine Independence Act, "All citizens of the Philippine Islands shall owe allegiance to the United States."
Thus, the Post Nati Territorial Filipinos were persons born “within the realm” (the Philippine Islands was territory “subject to the jurisdiction of the United States”) and “within the allegiance” (Territorial Filipinos “owed allegiance to the United States”); hence, under the Citizenship Clause, the Antenati Territorial Filipinos were citizens of the United States and the Post Nati natural-born.
And this means that, under the Citizenship Clause, Territorial Filipinos are regarded, in the words of Justice Bradley, as “inhabitants of Federal territories and new citizens, made such by annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, [be regarded] as citizens of the United States.”
02. “National Law”--Birth Within the Realm and Within the Allegiance. During the Civil Rights Act debate, the Chair of the House Judiciary Committee, Rep. James Wilson, 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."
Rep. Wilson concludes by stating that what was 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."
Rep. Wilson also quotes 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, and entitled to all the rights and privileges appertaining to that capacity."
Thus, the “national law” prevailing in 1866 was: Persons born “within its jurisdiction” or “within the United States, its territories, or districts” are “natural-born.”
03. The Law of the Land. In Senator Howard’s words, the Citizenship Clause confers U.S. citizenship upon two categories of citizens recognized by “the law of the land already … by virtue of natural law and national law":
First Category: All persons born or naturalized in the United States; and
Second Category: All persons owing allegiance to the United States, over whom the constitutional power of the United States extends, and inhabiting territory, over which the United States exercises the rights of sovereignty and jurisdiction.
Thus, a person acquires the status of a “natural-born” citizen of the United States, if born “within its jurisdiction” or “within the dominions,” which in Coke’s words is the “divine law of nature … the eternal law of the Creator" and "part of the law of England." This 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.”
Does this Second category not satisfy the English common-law Birthright rule derived from Calvin’s Case: “Neither the climate nor the soil but obedience and allegiance that makes the subject born”?
B. THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” DOES NOT REFER TO A DEFINED TERRITORIAL LIMITATION BUT TO “PERSONS OWING ALLEGIANCE TO THE UNITED STATES”
The First Category of the Citizenship Clause, “All persons born … in the United States” means that U.S. citizenship “[springs] from the place of birth [“in the United States”] regardless of parentage, and [supervenes] at the moment of birth.”
So, other than persons “born … in the United States,” the road to acquiring U.S. citizenship AFTER BIRTH under the First category is for those persons to be “naturalized in the United States.”
Take note that the preposition used is ”in,” NOT “by,” the United States, no matter how the phrase “the United States” is to be conveniently redefined by law to include later.
As distinguished from the First category, the Second category --“All persons subject to the jurisdiction of the United States”--does not refer to a specific “place” or “territory” NOT “in the United States” as the criterion to acquiring U.S. citizenship.
Rather, as defined by the 39th Congress during the Citizenship Clause debate, the Second category refers to all persons “owing allegiance to the United States,” over whom “the constitutional power of the United States” is “coextensive in all respects,” in this manner:
Senator Lyman 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.'"
Senator Jacob Howard (the author): "[T]he 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."
So, under the Second category, what matters is to whom the person “owes allegiance” to. It is the determinant, the criterion for conferment of U.S. citizenship.
C. THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” WAS PHRASED TO “INCLUDE EVERY OTHER CLASS OF PERSONS”
In his sponsorship speech of the Citizenship Clause, Senator Howard clarified that his draft “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons …”
So, there were other persons embraced. For, aside from those “persons born in the United States” and the “recognized exceptions” Senator Howard cited, the Clause was intended to include “every other class of persons.”
But who are they? These “other class of persons” Senator Howard speaks of are evidently NOT “born in the United States”; for, if they are, these persons would surely qualify as belonging to the First category of “persons born in the United States,” unless they are part of the class of “recognized exceptions” he cited of those “born.”
Rather, they belong to the Second category--of “every other class of persons”--who are “subject to the jurisdiction of the United States.”
What follows is a description of some (for there may still be others) of the more important and controversial “other class of persons” conferred U.S. citizenship under this category.
01. Children of U.S. citizens born abroad. Since the allegiance of children of U.S. citizens born abroad, NOT “in the United States,” follows the allegiance of their parents who are “subject to the jurisdiction of the United States”; then, under the Second category, these children are citizens of the United States AT BIRTH, even if only one of the parents (the mother, in particular) is a U.S. citizen.
Thus, the second category goes beyond the concept of Patria Potestas (Power of a Father), since the child of an American mother married to a foreigner is also born “subject to the jurisdiction of the United States” owing to the allegiance of the mother.
Under Roman law, “Potestas” is “one of the words by which is expressed the power that one private person has over another … The Potestas is either Dominica, that is, ownership as exhibited in the relation of Master and Slave; or Patria as exhibited in the relation of Father and Child.” (see George Long on pp. 873 875 of William Smith, A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875)
“Patria Potestas then signifies the power which a Roman father had over the persons of his children, grandchildren, and other descendants, and generally all the rights which he had by virtue of his paternity. The foundation of the Patria Potestas was a Roman marriage, and the birth of a child gave it full effect … The term Patria Potestas strictly expresses the power of the father, as such, which arises from the paternal relation.”
Justice Fuller dissenting in Wong Kim Ark cites “Partus sequitur patrem” as the reason:
“[T]he rule, 'Partus sequitur patrem,' has always applied to children of our citizens born abroad, and that the acts of congress on this subject are clearly declaratory, passed out of abundant caution, to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere.”
In a way, the Second category as phrased embodies the concept of “Patria Potestas” and “Partus sequitur patrem”; hence, the children of American citizens born abroad belong to a class that Senator Howard said his draft “will include every other class of persons.”
For that matter, under the Second category, an American mother, even if married to a foreigner, remains a person EQUALLY “subject to the jurisdiction of the United States” as any American Father and is able to also transmit the precious citizenship of the United States she holds to her child at birth who belongs to the “other Class of persons.”
For a more thorough discussion on persons born abroad, see David A. Isaacson, Correcting Anomalies in the United States Law of Citizenship by Descent, Arizona Law Review (2005). Quoted below is the introductory comment on the “complications” of U.S. laws on citizenship-by descent:
“Current U.S. citizenship-by-descent law is full of complications that act
more as traps for the unwary than reasonable ways of accomplishing legitimate
policy goals—complications so severe that counsel in Nguyen, the most famous
citizenship-by-descent case of this decade, may have been led astray by them. For
the more wary who do figure out the implications of its details, the law presents
perverse incentives and peculiar windfalls. It needs to be changed.”
Obviously, these “complications” arising from “perverse incentives and peculiar windfalls” would have been greatly reduced had the Second category been recognized.
02. Children of U.S. born female citizen married to a foreigner. “Under the act of March 2, 1907, all women acquired their husband's nationality upon any marriage occurring after that date. This changed nothing for immigrant women, but U.S.-born citizen women could now lose their citizenship by any marriage to any alien.
“[T[he Married Women's Citizenship Act, also known as the Cable Act [1922], finally gave each woman a nationality of her own. No marriage since that date has granted U.S. citizenship to any alien woman nor taken it from any U.S.-born women who married an alien eligible to naturalization … women who lost citizenship by marriage and regained it under Cable Act naturalization provisions could file in any naturalization court--regardless of her residence.” (see Women and Naturalization, archives.gov)
The 1922 Cable Act allowed an American woman marrying an immigrant to maintain her U.S. citizenship. Essentially, “the Act made the naturalization process for men and women equal and reversed former immigration laws regarding marriage.”
.
However, had the Second category been recognized earlier, a U.S. born female citizen--a person “subject to the jurisdiction of the United states”--would have retained her citizenship even if she married an alien, unless she voluntarily relinquished it, for she belongs to what Senator Howard refers to as “every other class of persons,” including her children.
03. Persons in the Territories or in the District of Columbia. Although, as worded, the Second category does not expressly refer to a place or territory where persons “subject to the jurisdiction of the United States” are born or residing, Senator Trumbull during the debate mentions of the extent of its reach as “everywhere,” or as in the phraseology of the Thirteenth ratified a few months earlier, “any place” so long as that person is “subject to the jurisdiction of the United States”:
"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."
To repeat for clarification: The Citizenship Clause applies to “persons everywhere, whether in the States or in the Territories or in the District of Columbia.” So, if a person is NOT “in the United States,” where else could that person “subject to the jurisdiction of the United States” be, but “in the Territories or in the District of Columbia.”
Senator Trumbull continues:
“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 … We propose to make citizens of those brought under our jurisdiction in that way.” (Ibid.)
Take note of the phrases: “those persons who come completely within our jurisdiction, who are subject to our laws” and “those brought under our jurisdiction.”
In other words, under the Second category, the moment the cession of territory is complete and the ceded territory becomes “subject to the jurisdiction of the United States,” over which the United States exercises “the rights of sovereignty and jurisdiction,” persons residing or born in such ceded territory now “belonging to the United States” likewise becomes “subject to the jurisdiction of the United States” and acquires citizenship of the United States, who are “entitled to its protection.”
In short, the Citizenship Clause with its Second category satisfies fully the Birthright Rule, “Birth within the Realm and within the Allegiance”--“Neither the climate nor the soil but obedience and allegiance that makes the subject born.” For these include persons not only “born or naturalized in the United States,” but includes also “every other class of persons” who are “subject to the jurisdiction of the United States.”
NOTE: Children of a U.S. citizen (father or mother) born “out of wedlock” (illegitimate or “legitimated”) are also definitely “persons subject to the jurisdiction of the United States” AT BIRTH and thus belong to what Senator Howard refers to “every other class of persons.” There are so many legal implications involved; so, it is best to leave to legal professionals the discussion of this aspect.
D. THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” CONFERS U.S CITIZENSHIP UPON PERSONS NOT ONLY AT BIRTH BUT ALSO AFTER BIRTH
The Second category confers U.S. citizenship to those “persons” from and after the moment they become “subject to the jurisdiction” of the United States AT BIRTH (“antenati”) or AFTER BIRTH (“post nati”) who are definitely NOT “in the United States,” since those regarded as “in the United States” are, of course, already conferred citizenship by virtue of having qualified under the First.
In this regard, Justice Harlan’s dissent in Elk v. Wilkins is pertinent:
“Our brethren, it seems to us, 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 in which they reside;'
Justice Harlan’s observation is, of course, correct. The Clause certainly does NOT say “all persons born subject to the jurisdiction.” For, here, the First and the Second categories are joined as one. Rather, under the First category, citizenship is conferred upon persons “born in the United States” and, under the Second, upon persons “subject to the jurisdiction of the United States” AT BIRTH OR AFTER BIRTH.
01. The “Antenati” acquires citizenship of the United States from and after the moment the person becomes, on that date AFTER BIRTH, ”subject to the jurisdiction of the United States,” which obviously includes the inhabitants or natives of a territory at the time of formal acquisition of such ceded territory by the United States.
02. The “Post Nati” acquires citizenship AT BIRTH if born “subject to the jurisdiction of the United States,” and are thus “natural-born.”
Certainly, these are persons, in the words of Senator Trumbull cited earlier, “who come completely within” [or “brought under”] our jurisdiction,” “everywhere, whether in the States or in the Territories or in the District of Columbia.”
The “Case of the Post Nati” in Scotland was the issue that confronted Calvin’s Case (1608), discussed in another section earlier here, which is said to have formed the basis for the phraseology of the Citizenship Clause.
E. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” WAS NOT INTENDED, AS CLAIMED OFFICIALLY AND JUDICIALLY, TO DISQUALIFY THE “RECOGNIZED EXCEPTIONS” UNDER COMMON LAW
For well over a century now, the phrase “and subject to the jurisdiction thereof” in the Citizenship Clause has been read as a “qualifying phrase” modifying the phrase preceding it, “All persons born or naturalized in the United States.”
In his sponsorship speech of the Citizenship Clause, Senator Howard clarified that his draft--
“… will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons …”
Note that the “exception” of “foreigners, aliens” that the author, Senator Howard, mentioned was directed at the First category, “All persons born in the United States.”
01. Children of diplomats are already excluded in the Jus Soli principle. 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)
The declaration that all persons born in the United States are citizens obviously invokes the jus soli principle, and it would have necessarily implied the English common law birthright rule exceptions for ambassadors and other foreign officers.
In fact, by saying that his draft “will not, of course, include”--can already be understood to mean that the “exceptions” Senator Howard reminded his colleagues about were the well-settled “recognized exceptions” to the Birthright Rule—without the need of providing for them.
During the debate, Senator Williams also touched on these “recognized exceptions”:
“Take the child of an ambassador, in one sense that child born in the United States is subject to the jurisdiction of the United States; because if the child commits murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians … I understand the words here, “subject to the jurisdiction of the United States,” to mean fully and completely subject to the jurisdiction of the United States.”
This view is consistent with William Blackstone, Commentaries (1765):
“… the children of the king's embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador.”
Children of diplomats, in short, are “recognized exceptions” under the jus soli principle.
02. It was Justice Miller--not the author Senator Howard--who said that the phrase was intended to exclude the children of diplomats. What is indisputable is that Senator Howard NEVER said during the debate that his use of the phrase “and subject to the jurisdiction thereof” was intended to cover the cited “exception” of “foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States. “
Rather, it was Justice Miller in the Slaughterhouse Cases (1872) who first referred to the phrase as having been placed to provide for the “exceptions” when he said:
“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.”
Justice Gray in Wong Kim Ark (1898), however, said that Justice Miller’s statement “was wholly aside from the question in judgment,” and to quote:
“Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the fourteenth amendment, made this remark: '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.' This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together; whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as intrusted with authority to represent their sovereign in his intercourse with foreign states, or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside. “
“In weighing a remark uttered under such circumstances, it is well to bear in mind the often-quoted words of Chief Justice Marshall: 'It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.' Cohens v. Virginia (1821) 6 Wheat. 264, 399.”
In spite of this observation on Justice Miller’s “aside” that “was unsupported by any argument, or by any reference to authorities,” Justice Gray, nonetheless, opined:
“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.”
So, owing to the misreading of the Clause, even those who dissented in Wong Kim Ark were as confused as those who penned the decision.
03. It was not necessary to provide for the “recognized exceptions.” If, indeed, the “real object” of the “qualifying phrase” had “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” to be “recognized exceptions,” why would Senator Howard expressly provide for such redundant, superfluous exceptions that he, along with the 39th Congress, already knew was “well settled law”?
The confusion and uncertainty is echoed more profoundly in what Chief Justice Fuller (with Justice Harlan concurring), said dissenting in the same Wong Kim Ark case concerning a similar “synonymous” phrase used in the Civil Rights Act, “and not subject to any foreign power,” the same 39th Congress approved two months earlier:
“But it is argued that the words 'and not subject to any foreign power' should be construed as excepting from the operation of the statute only the children of public ministers and of aliens born during hostile occupation.
“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?
“Whether the immunity of foreign ministers from local allegiance rests on the fiction of extraterritoriality or on the waiver of territorial jurisdiction, by receiving them as representatives of other sovereignties, the result is the same.
“They do not owe allegiance otherwise than to their own governments, and their children cannot be regarded as born within any other.
“And this is true as to the children of aliens within territory in hostile occupation, who necessarily are not under the protection of, nor bound to render obedience to, the sovereign whose domains are invaded; but it is not pretended that the children of citizens of a government so situated would not become its citizens at their birth, as the permanent allegiance of their parents would not be severed by the mere fact of the enemy's possession.
”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.”
So, was it necessary for the phrase to be inserted for the sole reason of excluding already “recognized exceptions”?
04. If the phrase was intended to exclude the children of diplomats, why not exclude the children of “aliens” as well? Chief Justice Fuller proceeds to highlight the inconsistency of the view that the phrase was intended to exclude the “recognized exceptions” in jus soli
“But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanenta llegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would.
In a word, what Chief Justice Fuller is saying here is that, if the addition of the phrase was really intended for the named exceptions, what of the “others in respect of whom the exceptions was needed,” “aliens,” in particular?
Certainly these unnamed other exceptions would further dilute and confuse no end the birthright rule Senator Howard espoused to adhere strictly to “birth within the realm and within the allegiance.”
So, we reiterate, was it “necessary” for Senator Howard to add the phrase to emphasize what he already said during his sponsorship speech that his draft “will not, of course, include” the “recognized exceptions,” exceptions as old as the rule itself?
In view of all these, it now becomes exceedingly clear that the “real object” of the phrase Senator Howard had in mind was the conferment instead of U.S. citizenship upon a Second category--“all persons subject to the jurisdiction of the United States.”
F. SENATOR DOOLITTLE’S PROPOSED AMENDMENT, “EXCLUDING INDIANS NOT TAXED,” WAS DIRECTED AT QUALIFYING THE SECOND CATEGORY IN THE CITIZENSHIP CLAUSE, “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES,” AND NOT THE FIRST, “ALL PERSONS BORN IN THE UNITED STATES.”
01. Doolittle’s amendment “excluding Indians not taxed.” In the course of objecting vigorously to Senator Doolittle’s proposal to insert the words, “excluding Indians not taxed,” to his draft of the Clause, Senator Howard, the author, mentions “naturalization” several times, in this manner:
“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.”
Senator Howard even adds later:
“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.”
The United States Code at Sec. 1101 (a), Chapter 12, Subchapter 1 defines the term “naturalization” in this manner:
“(23) The term ‘naturalization’ means the conferring of nationality of a state upon a person after birth, by any means whatsoever.”
Take careful note that, as already discussed in Part Two, naturalization can only be applied “AFTER BIRTH.” No person, therefore, can be “naturalized” AT BIRTH. In fact, under the Citizenship Clause as phrased, a person AFTER BIRTH needs to be “in the United States”--and NOT anywhere else--in order to qualify to be “naturalized.”
Also, to repeat for emphasis, the Second Category is worded to confer U.S. citizenship, NOT only upon persons AT BIRTH, but also upon persons AFTER BIRTH (or upon those already “born”) from and after the moment those born or AT BIRTH and those AFTER BIRTH become “subject to the jurisdiction of the United States.”
So, what Senator Howard obviously had in mind in his remarks is that Senator Doolittle’s proposal to insert the words “excluding Indians not taxed” was intended to qualify the Second category, “All persons subject to the jurisdiction of the United States”; and certainly NOT to qualify the phrase “All persons born, and subject do the jurisdiction thereof,” with the phrase “and subject to the jurisdiction thereof,” as claimed officially and judicially, qualifying, “All persons born.”
For why would Senator Howard--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,” if, as claimed officially and judicially, the phrase “and subject to the jurisdiction thereof”—which is proposed to be qualified further by Senator Doolittle’s amendment, “excluding Indians not taxed”--is merely a “qualifying phrase” to “All persons 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 officially and judicially, must at the moment of their BIRTH, be (1) “subject to the jurisdiction thereof” and, had Senator Doolittle’s amendment been accepted, be (2) “taxed” by the State as well?
And the reason, to repeat, is that 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--a category sadly still unrecognized to this day.
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.” Senator Howard naturally objected, for Indians by treaty were never regarded as fully and completely “subject to the jurisdiction of the United States.”
However, under 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” through the act of taxation, “whenever,” in the words of Senator Howard, “the States saw it fit to impose a tax upon the Indians.”
02. The Second category acts as a constitutional “Collective Naturalization.” From Senator Howard’s objection to Senator Doolittle’s amendment, it is clear that the Second category authorizes, constitutionally (as distinguished from legislation), the “Collective Naturalization” of persons AT BIRTH and AFTER BIRTH from and after the moment the person becomes “subject to the jurisdiction of the United States.”
The Second category is applicable, and to quote Senator Trumbull’s words cited earlier here (see under Item “B”.03 above), to “those persons who come completely within our jurisdiction, who are subject to our laws … We propose to make citizens of those brought under our jurisdiction in that way.”
Certainly, those “persons who come completely within” or are “brought under our jurisdiction” do NOT refer to “persons born”; rather, the lines cited no doubt point to the Second category, persons already born “who come completely” or is “brought” to be “subject to the jurisdiction of the United States.”
Thus, the Second category may be regarded as having been intended also to confer a CONSTITUTIONAL “Collective Naturalization” upon persons who become ”subject to the jurisdiction of the United States” not only AT BIRTH, but also AFTER BIRTH.
03. The “Collective Naturalization” of Puerto Ricans and Guamanians was unnecessary. Senator Howard’s Second category of citizens of the United States does NOT specify the locality that is “subject to the jurisdiction” to act as the criterion to conferment of U.S. citizenship, unlike the First which refers to persons with the place of birth expressly specified--“born … [only] in the United States.”
Nonetheless, insofar as locality is concerned, the Second category was evidently intended to cover those inhabitants (or natives) “subject to the jurisdiction of the United States” residing in territory upon its cession or annexation as well as those born after.
The vast expanse of ceded territory that were “subject to the jurisdiction of the United States” in 1866 is discussed in detail later here and need no further elaboration.
So, had the Second category been recognized earlier, there would not have been any need for the U.S. 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 Territorial Filipinos, of course).
And the obvious reason is that, upon the moment of cession, the inhabitants of these territories (those already “born”) who become “subject to the jurisdiction of the United States” automatically acquired U.S. citizenship, transmittable to their children born later, without the need of a specific provision to “naturalize” them and their offspring.
In fact, as discussed in Part Two, under the current definition of ”naturalization” and the erroneous official and judicial reading of the Citizenship Clause, the congressional “collective naturalization” of persons AT BIRTH in the territories of Puerto Rico and Guam is of doubtful authority, unless these are children of Puerto Ricans and Guamanians Congress already collectively “naturalized.”
Not only that, owing to this misreading of the Clause, the gnawing question lingers: If Puerto Ricans and Guamanians do NOT qualify as having been “born in the United States,” why were they deemed eligible to be “naturalized in the United States”?
Is the meaning of the words “in the United States” selectively different when applied to BIRTH as against NATURALIZATION as used in the phrase “born or naturalized in the United States” both joined by the conjunction “or”?
NOTE: Please see an extended discussion in Section N.03 here about the Position Paper of the Task Force on Free Association, “Guam’s Political Future: An Argument for Free Association with U.S. Citizenship” concerning the claim that the natives of Guam received their citizenship neither by birth in the United States nor by naturalization, but rather by federal statute, their citizenship is similarly subject to congressional action.
04. The Second category avoids the difficulty of the “antenati” encountered in Calvin’s Case of the “Post Nati.” 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 the Second category, since this category covers both the “antenati” and the “post nati”--both “persons subject to the jurisdiction of the United States.”
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.”
Those born in Scotland following the descent of the English crown to King James--the “post nati”--were considered “subjects” in England; but their parents or those already “born” residing in Scotland were the “antenati,” and it was ruled in Calvin’s Case that they (the “antenati”) were NOT to be regarded as “subjects” in England.
Under the Second category, however, both the “post nati” and the “antenati” acquire citizenship of the United States from the moment of BIRTH or become AFTER BIRTH “subject to the jurisdiction of the United States.”
G. IT IS THE “ALLEGIANCE” OF PERSONS “SUBJECT TO THE JURISDICTION” OF THE UNITED STATES” THAT DISTINGUISHES THEM FROM PERSONS “WITHIN THE JURISDICTION” OF A STATE OR THE UNITED STATES, OR PERSONS “SUBJECT TO ANY FOREIGN POWER”
01. The phrase “subject to the jurisdiction thereof”: The Citizenship Clause in Section 1 of the Fourteenth Amendment provides:
“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.”
As already discussed in Section A above and elsewhere here, the phrase “subject to the jurisdiction thereof” denotes the “allegiance” of persons over whom the constitutional power of the United States is coextensive in all respects, irrespective of whether the person is “in” the United States as Congress conveniently defines it to embrace, or OUTSIDE of the United States.
02. The phrase “within its jurisdiction”: The penultimate sentence of Section 1 of the Fourteenth Amendment also provides:
“ … nor [shall any State] deny to any person within its jurisdiction, the equal protection of the laws.”
In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court described the extent of the phrase “within its jurisdiction”:
“Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments.
“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. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction - either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States - he is entitled to the equal protection of the laws that a State may choose to establish.
In a word, the phrase “within its jurisdiction” refers to “anyone, citizen or stranger” who is “within” or “under” the laws of the State or the United States.” It speaks of the “obedience” to the laws “within the territorial perimeter” of such jurisdiction—as distinguished from the “allegiance” that goes with the “obedience” persons who are “subject to the jurisdiction of the United States” owe thereto.
03. The phrase “subject to any foreign power”: The first sentence of the 1866 Civil Rights Act declares:
“All persons born in the United States and not subject to any foreign power are hereby declared to be citizens of the United States.”
Using the same sense of the dictionary definition (and Senator Trumbull’s reading) of “subject to” as “owing allegiance,” the phrase “subject to any foreign power” refers to persons owing allegiance to a sovereign other than one’s own, or the United States. In other words, as used in the Civil Rights Act, those “subject to any foreign power” refer to foreigners, strangers or aliens who are nationals of, or owe allegiance to, another country from the standpoint of an American.
Note that, as already discussed in Part Two, the phrase “and not subject to any foreign power” is employed in the Civil Rights Act as a modifier or qualifier of the element preceding it, “All persons born in the United States,” owing to the omission of the comma before the coordinating conjunction “and.”
04. The phrase “and not subject to any foreign power” should NOT be regarded as synonymous with the phrase “and subject to the jurisdiction of the United States.” The phrase “and not subject to any foreign power” has generally been regarded as “synonymous” with the phrase “and subject to the jurisdiction thereof.”
This may not be the accurate analysis, since the determinant word “jurisdiction” appears only in the latter and is missing in the former, negatively phrased. And, during the debate as cited earlier, Senator Howard, the author, defined the term “jurisdiction” to imply “the full and complete jurisdiction [as distinguished from “partial”] on the part of the United States, coextensive in all respects with the constitutional power of the United States."
In any case, it is the ALLEGIANCE of the person that distinguishes these three phrases discussed. For a citizen who owes “allegiance” to the United States is “subject to the jurisdiction” of the United States; while a stranger or alien who may happen to be “within its jurisdiction” is actually “subject to [a] foreign power” or owes “allegiance” to another country.
05. The “ascriptive” as distinguished from the “consensual” view of the phrase “and subject to the jurisdiction thereof.” The statement before the Subcommittes of Immigration and Claims and on the Constitution of the House Committee on the Judiciary by the Asst. Attorney General (Office of the Legal Counsel), Walter Dellinger, on 13 December 1995 is enlightening as it relates to the phrase “and subject to the jurisdiction thereof,” which in part states:
“In their 1985 book, Professors Peter Schuck and Rogers Smith argue for a novel’"reinterpretation’ of the citizenship clause. Briefly, the authors recommend replacing the ‘ascriptive’ approach to citizenship--which determines citizenship by an objective circumstance, such as place of birth or citizenship of parents--with a ‘consensual’ approach--which makes political membership a product of mutual consent by the polity and the individual. The authors argue that the Fourteenth Amendment may be reinterpreted to allow Congress to deny citizenship to children of illegal aliens by legislation (as opposed to constitutional amendment) …
“Schuck and Smith are proposing a change in the law, not a plausible reinterpretation of the Constitution … Indeed, the authors themselves concede that there is no judicial precedent in support of their theory. Moreover, as one review of the book notes on a more philosophical level, "[t]he examples [Schuck and Smith give in support of their consent theory]--the denial of citizenship to Blacks, Indians and Chinese--are all deeply shameful for contemporary Americans. This is not a history to build on.’
“From our experience with Dred Scott, we had learned that our country should never again trust to judges or politicians the power to deprive from a class born on our soil the right of citizenship. We believe that no discretion should be exercised by public officials on this question---there should be no inquiry into whether or not one came from the right caste, or race, or lineage, or bloodline in establishing American citizenship. Other nations may seek more consensual and perhaps more changeable forms of citizenship; for us, for our nation, the simple, objective, bright-line fact of birth on American soil is fundamental.”
This piece is another example of how the misreading of the Clause has brought about several interpretations of the phrase “and subject to the jurisdiction thereof” that are bound to be criticized severely by those who should have also tried to analyze the phrase correctly as intended by its author, Senator Howard.
H. THE THIRTEENTH AMENDMENT AND THE CITIZENSHIP CLAUSE IN THE FOURTEENTH IS WORDED TO APPLY TO “ANY PLACE” AND TO “ALL PERSONS” “SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
The two post-Civil War amendments proclaim:
Thirteenth: “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Fourteenth: “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.”
Clearly, with the Fourteenth grammatically read, the two post-Civil War Amendments, 13th (1866) and 14th (1868), 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: Abolition of Slavery or involuntary servitude inflicted upon persons:
(1) "within the United States"; or
(2) "any place subject to their jurisdiction."
FOURTEENTH: U.S. Citizenship conferred upon persons:
(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof" (born or residing “everywhere” to use Senator Trumbull’s own words)
Justice Brown in Downes v. Bidwell, 182 U.S. 244 (1901) cited these two Civil-War Amendments to buttress his view on the Doctrine of Incorporated Territories:
“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. To say that the phraseology of this amendment was due to the fact that it was intended to prohibit slavery in the seceded states, under a possible interpretation that those states were no longer a part of the Union, is to confess the very point in issue, since it involves an admission that, if these states were not a part of the Union, they were still subject to the jurisdiction of the United States.
“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, read grammatically as intended by Senator Howard, the reach of the Fourteenth is similarly “limitless.” For under the Second category of the Citizenship Clause in Section 1 of the Fourteenth Amendment, citizenship of the United States is “extended” to “all persons” born or residing, “everywhere” who are “subject to their jurisdiction”--consistent with the congressional intent of abolition of slavery upon “all persons” born or residing “any place subject to their jurisdiction” in the phraseology of the Thirteenth.
I. HISTORICAL CONTEXT OF THE 13TH AND 14TH AMENDMENTS IN RELATION TO TERRITORIES.
(NOTE the importance attached to “Territories” in the following narration taken directly from the original of various historical websites.)
Abolition of slavery and protection of inhabitants in the territories were important issues since the beginning of the American republic. Slavery was banned in 1878: in the newly created Northwest Territory (later the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin); in the Louisiana Territory above the latitude 360* 30’ under the Missouri Compromise of 1820-21; and in California (part of the territory ceded from Mexico by the Treaty of Guadalupe Hidalgo) under the 1850 Compromise.
Slavery in the territories would be at the center of angry public debate in 1854 following the Kansas-Nebraska Act, which repealed the 1820 Missouri Compromise Act, and the Fugitive Slave Act, which federalized the return of escaped slaves found in free states or territories to their owners
In the District of Columbia, President Lincoln granted emancipation to slaves in 1862. Two months later, the Territorial Abolition Act banned slavery in the current or any future territories of the United States, providing:
“That from and after the passage of this Act there shall be neither slavery nor involuntary servitude in any of the Territories of the United States now existing, or which may at any time hereafter be formed or acquired by the United States.”
The territorial areas included the future states of North and South Dakota, Nebraska, Oklahoma, Washington, Idaho, Montana, Wyoming, Colorado, Utah, Nevada, New Mexico, Arizona, and Alaska.
The case of Dred Scott v. Sandford (1857) was about slavery in the territories, involving a slave, Dred Scott, who traveled with his master for several years, first in the free state of Illinois and then in the free territory of Wisconsin. After his master’s death, Scott sued for his freedom, arguing that his temporary stay in free territory had made him free.
Under the Dred Scott decision, the ban on slavery in the territories is not constitutionally permissible and that black Americans could not be citizens. The decision was overruled by the “legislation of war”--the Civil War.
In 1865, the Thirteenth Amendment which abolished slavery "within the United States, or any place subject to their jurisdiction" was ratified, with “any place” meaning ceded territories
A year later, in 1866, the Civil Rights Act, was enacted. Sec. 1 of the Act is worded:
“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; and such citizens, of every race and color…shall have the same right, in every State and Territory in the United States…as is enjoyed by white citizens…”
Although the Thirteenth Amendment abolished slavery, it did not resolve the legal status of former slaves under federal and state law. After the Civil War, many southern states passed “Black Codes” designed to severely restrict the lives of newly freed slaves and keep them in virtual slavery.
Finally, in 1868, the Fourteenth Amendment was ratified. The Citizenship Clause in Sec. 1 is phrased:
“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.”
Through the Fourteenth Amendment, former slaves were granted citizenship and promised “equal protection of the laws.” This protection from unreasonable discrimination eventually extended to other groups as well. The Fourteenth Amendment became the basis for claims of “legal equality.”
The historical background of the 13th and 14th Amendments narrated here show clearly that concern for the Rights of Freedmen in Territories played a crucial role in the promulgation of the amendments in view of the frenzied advocacy of Calhoun’s “State Rights” in the South.
In the end, Federalism triumphed over “State Rights” to be pursued under the mandate: “any place” (13th) or “all persons” (14th)--“subject to the jurisdiction of the United States.”
J. WHO WERE THOSE “PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES” UNDER THE SECOND CATEGORY UPON THE ENACTMENT BY THE 39TH CONGRESS OF THE CITIZENSHIP CLAUSE IN 1866?
At the time the U.S. Congress enacted the Fourteenth Amendment (and the Citizenship Clause in Section1) in 1866, persons NOT “in the United States,” but “subject to the jurisdiction of the United States” comprised the inhabitants or residents of “a vast additions of territory” and “Territorial governments” belonging to the United States, specifically within the following:
01. District of Columbia (NOT a State but carved from, and ceded by, the States of Virginia and Maryland)
02. The 12 territories awaiting statehood, showing respective dates of admission (chronologically) as a state and dates of creation earlier into an organized territory:
37th. Nebraska 01 Mar 1867 Territory 30 May 1834
38th. Colorado 01 Aug 1876 Territory 28 Feb 1861
39th. North Dakota 02 Nov 1889 Territory 02 Mar 1861
40th. South Dakota 02 Nov 1889 Territory 02 Mar 1861
41st. Montana 08 Nov 1889 Territory 26 May 1864
42nd. Washington11 Nov 1889 Territory 02 Mar 1853
43rd, Idaho 03 July 1890 Territory 03 Mar 1863
44th. Wyoming 10 July 1890 Territory 25 Jul 1868 (previously part of Dakota Territory)
45th. Utah 04 Jan 1896 Territory 09 Sep 1850
46th. Oklahoma 16 Nov 1907 Territory 02 May 1890 (previously part of Indian Territory)
47th. New Mexico 06 Jan 1912 Territory 09 Sep 1850
48th. Arizona 14 Feb 1912 Territory 24 Feb 1863
(NOTE: Alaska, the 49th State was annexed 30 Mar 1867 before the Fourteenth was ratified, but was organized into a Territory only on 24 Aug 1912 and admitted as a state 03 Jan 1959; while Nebraska was admitted as the 37th State before the ratification of the Fourteenth.)
03. The 11 States that seceded to form the Confederate States of America, showing date of secession (chronologically) and readmission back to the Union:
--South Carolina 20 Dec 1860 readmitted 25 Jun 1868
--Mississippi 09 Jan 1861 readmitted 23 Feb 1870
--Florida 10 Jan 1861 readmitted 25 Jun 1868
--Alabama 11 Jan 1861 readmitted 25 Jun 1868
--Georgia 19 Jan 1861 readmitted 25 Jun 1868 (2nd readmission15 Jul 1870)
--Louisiana 26 Jan 1861 readmitted 25 Jun 1868
--Texas 01 Feb 1861 readmitted 30 Mar 1870
--Virginia 17 Apr 1861 readmitted 26 Jan 1870
--Arkansas 06 May 1861 readmitted 22 Jun 1868
--Tennessee 07 May 1861 readmitted 24 Jul 1866
--North Carolina 20 May 1861 readmitted 25 Jun 1868
The ratification by the seceding states of the Thirteenth and Fourteenth Amendments was a pre-condition for readmission to the Union under the Reconstruction Act 1867, along with the abolition of slavery in their respective state constitutions. U.S. Senate and congressional representation of the States that seceded was restored upon the date of admission but “local rule” remained under “military control of the United States” and was established at much later dates for individual states.
The President of the Confederate States was Jefferson Davis. “Section 3 of the Fourteenth Amendment … barred from office anyone who had violated their oath to protect the Constitution by serving in the Confederacy. That prohibition included Davis. In 1978, pursuant to authority granted to Congress under the same section of the Amendment, Congress posthumously removed the ban on Davis with a two-thirds vote of each house and President Jimmy Carter signed it.” (see Wikipedia)
Without representation in both Houses of Congress at that time in 1866 (since1861, for that matter), the seceding States, now governed under a new Constitution of the Confederate States, may be regarded, insofar as the Citizenship Clause is concerned, to be NOT “in the United States” during the 7-year period of secession.
The term “readmission” alone already signifies that these states were OUT of, and had to be admitted back to, the United States in order to be “in the United States”; and, at the time the Citizenship Clause was debated and approved in 1866, the immediate readmission of the seceding states was fraught with uncertainty following President Lincoln’s assassination and Vice President Johnson’s assumption to the Presidency.
Besides, it can also be convincingly argued that the act of secession was tantamount to a voluntary “renunciation” by the people of the seceding States of their allegiance to the United States.
In fact, the phrase “and not subject to any foreign power” employed in the Civil Rights Act could be invoked later to declare that the Confederate States be regarded as a “foreign power” during the period of cession, which is undoubtedly the reason behind why the phrase was dropped from Senator Howard’s “language” of the Clause.
In any case, whatever would have been the outcome of the “Reconstruction Period” after the Civil War ended, the wise inclusion of the Second category of the Clause guaranteed U.S. citizenship to those “born” in the Confederate States--territories that the Union still regarded, and rightly so, to remain “subject to the jurisdiction of the United States”--even if they were to be deemed later as territories NOT “in the United States during the period of secession and rebellion.
The idea that the phrase “subject to the jurisdiction” included the vanquished Confederate States is what Alan Tauber (see "The Empire Forgotten: The Application of the Bill of Rights to U.S. Territories," November 17, 2005, pp. 20-21, available at SSRN) argues in his discussion of Justice Brown’s analysis concerning the phraseology of the Thirteenth Amendment in the Insular Case of Downes v. Bidwell (earlier cited and discussed here):
Justice Brown opinion: “To say that the phraseology of [the Thirteenth] amendment was due to the fact that it was intended to prohibit slavery in the seceded states, under a possible interpretation that those states were no longer a part of the Union, is to confess the very point in issue, since it involves an admission that, if these states were not a part of the Union, they were still subject to the jurisdiction of the United States.”
Tauber reaction: “This conception of the 13th amendment sounds strained in the light of the Amendment’s history. An equally logical, and perhaps better fitting, conception of the Amendment is that it’s reference to “any place subject to [the] jurisdiction” of the United States was not meant to refer to U.S. territories, but rather areas under the military control of the United States, given the recent end of the Civil War and the condition of most of the southern states under Union military control, it seems highly plausible that the language of the 13th was drafted to deal with that situation, as opposed to the territories, which were viewed since Dred Scott as part of the United States.”
Our rejoinder to Justice Brown and Tauber: The phrase “any place” in the Thirteenth should be viewed to include not only the “areas under the military control of the United States” but the “U.S. territories” as well. And this is consistent with another more significant aspect in the “Amendment’s history,” which was the advocacy towards “The Abolition of Slavery in the Territories.”
Slavery was the issue that precipitated the Civil War in the first place, following the very Dred Scott opinion Tauber cited concerning, in particular, slavery “in the territories” when the Court held that the Missouri Compromise that forbid slavery in an area of the Louisiana territory was unconstitutional.
Indeed, at that time after the Civil War, only 25 States remained as part of the Union, the rest of the 11 States were under “military control,” with 12 ceded territories pending statehood. Thus, owing to the large number of persons in places NOT “in the United States” enumerated earlier above, it is clear that the conferment of U.S. citizenship under the second category of the Clause to “persons subject to the jurisdiction of the United States” was, in 1866, urgent, justified and necessary.
In all, at the time the Clause was enacted, there were a total of 24 States and Territories (that were later admitted as States), including the District (not State) of Columbia, NOT “in the United States” but “subject to the jurisdiction thereof.”
Now, compare this total of 24 areas “subject to the jurisdiction of the United States” with the 25 States still “in the United States”… and ponder.
Nonetheless, in 1871, Chief Justice Salmon Chase in White v. Hart, 13 Wall. U.S. 65 “presented the traditional Lincoln theory of secession. That secession did not destroy the State of Texas, nor the obligation of Texans as citizens of the United States … Chase's opinion reaffirmed the permanence of the Union and its states and the duty of the states to the rights and obligations of all citizens” in these words:
“At no time were the rebellious States out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected, and remained the same.”
This, of course, is the view spoken in hindsight in 1871--five years after the 39th Congress enacted the Citizenship Clause in1866 and all of the Confederate States that seceded had finally returned back to the fold of the Union.
K. THE FIRST U.S. SUPREME COURT DECISION ON THE CITIZENSHIP CLAUSE SUGGESTS THAT THE PHRASE “IN THE UNITED STATES” INCLUDES “THE DISTRICT OF COLUMBIA” AND “THE TERRITORIES” BUT DOES NOT EXPLAIN THE REASON WHY
To Senator Howard, 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. This has long been a desideratum in the jurisprudence and legislation in this country."
Barely four years following its ratification in 1868, questions concerning the Fourteenth Amendment and the Citizenship Clause reached the U.S. Supreme Court for the first time in the Slaughter-House Cases, 83 U.S. 36 (1872).
In this first case, Justice Miller reiterates the "great question of citizenship" which "has long been a desideratum in the jurisprudence and legislation" Senator Howard speaks of in his sponsorship speech, phrased in this manner:
“It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. 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 … To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship … the first clause of the first section was framed … The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion … It declares that persons may be citizens of the United States without regard to their citizenship of a particular State …“The distinction between citizenship of the United States and citizenship of a state is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a state, but an important element is necessary to convert the former into the latter. He must reside within the state to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.”
What Justice Miller was saying does NOT seem to settle what Senator Howard refers to as “the great question,” a “desideratum in the jurisprudence and legislation in this country” which Justice Miller himself reiterated to be “the occasion of much discussion in the courts, by the executive departments, and in the public journals.”
Instead his statement confuses the whole issue altogether. For, at first, he mentions the “differences of opinion” concerning the view of some that--
--“no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union”
--persons “who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens”
But that the Clause, Justice Miller asserts, “puts at rest” these differences, since the Clause declares that--
--“persons may be citizens of the United States without regard to their citizenship of a particular State”
--“a man [may] be a citizen of the United States without being a citizen of a state.”
Strangely enough, Justice Miller contradicts himself later.
For how can the Clause be read to “remove this difficulty” of persons “who had been born and resided always in the District of Columbia or in the Territories, though within the United States, [but] were not [regarded as] citizens,” if, at the end of his statement, he asserts the inconsistency that:
“… it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union”?
In other words, if the Clause really recognizes that birth or residence “in the District of Columbia or in the Territories” now qualify a person to be “a citizen” (a status they were NOT regarded as eligible before), why declare the glaring contradiction that “he should be born or naturalized in the United States to be a citizen of the Union”?
Did Justice Miller read the words “in the United States” as employed in the Clause to include the “District of Columbia” and the “Territories”?
Perhaps (for this was the same reading of many at that time, although not all), but Justice Miller does not bother to explain how the Clause “removes the difficulty” that he stated was the view held 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.”
Justice Miller’s reading of the phrase “and subject to the jurisdiction thereof” does not help to clarify the matter at all--for he was trying to explain a phrase he had misread.
Justice Miller’s inconsistency and “confusion,” along with other similar contradictory statements by other Justices concerning the phrase “and subject to the jurisdiction of the United States” will be discussed in detail later here.
L. UNDER THE CITIZENSHIP CLAUSE, ABORIGINAL INDIANS QUALIFY TO BE U.S. CITIZENS ONLY UNDER A TREATY WITH THE UNITED STATES THAT COLLECTIVELY RENDERS THEM “SUBJECT TO THE JURISDICTION THEREOF”
The status of aboriginal Indians was unique. They were born, and resided, in designated reservations situated “in the United States”; however, owing to treaties entered into by and between the Indians and the Americans, they did not qualify to be regarded as having been “born … in the United States” (First category), nor were they considered to be “subject to the jurisdiction of the United States” (Second category).
Senator Johnson’s comment concerning Senator Doolittle’s proposal to insert the words “excluding Indians not taxed” during the Senate debate on the Citizenship Clause is instructive to the issue:
“With due deference to my friend from Illinois [Senator Trumbull], I think he is in error. They are within the territorial limits of the United States. If they were not, the provision would be altogether inapplicable to them. In one sense, therefore, they are a part of the people of the United States, and independent of the manner we have been dealing with them it would seem to follow necessarily that they are they are subject to the jurisdiction of the United States, as is anybody else who may be born within the limits of the United States. But … we found it necessary to recognize some kind of a national existence on the part of the aboriginal settlers of the United States … although we have been in the habit of making treaties with these several tribes, we have also from time to time, legislated in relation to the Indian tribes.”
In Elk v. Wilkins, 112 U.S. 94 (1884), Justice Gray, citing U. S. v. Osborne, 6 Sawy., 406, 409, concluded:
“'But an Indian cannot make himself a citizen of the United States without the consent and co-operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, may be a good reason why he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form. The Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since.'”
However, Justice Harlan’s dissent earlier cited challenges that reading:
“Our brethren, it seems to us, 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 in which 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.”
By legislative “Collective Naturalization,” however, all members of aboriginal Indian tribes ultimately became citizens of the United States AT BIRTH by legislation in 1924. Even under this law, the problem concerning the “antenati,” or those Indians born before the 1924 law was passed, required another law to be enacted in 1941 to enable them to acquire U.S. citizenship.
Nonetheless, what is noteworthy is that, and to use Justice Harlan’s words, “from and after the moment they became subject to the complete jurisdiction of the United States” as declared by law or treaty, the aboriginal Indians---both the “antenati” and “post Nati”--automatically acquired U.S. citizenship constitutionally under the Second category of the Citizenship Clause, irrespective of whether the law or treaty stipulated the acquisition of U.S. citizenship or not.
01. Senator Doolittle’s Amendment, “excluding Indians not taxed,” was proposed to qualify the Second category. During the Citizenship Clause debate, Senator Doolittle proposed to insert the words, “excluding Indians not taxed,” following the word “thereof” in Senator Howard’s draft.
Take note of Senator Johnson’s comment during the debate cited earlier, and to repeat in part:
“I think he [Senator Trumbull] is in error. They [the Indians] are within the territorial limits of the United States. If they were not, the provision would be altogether inapplicable to them.”
Senator Trumbull’s view (and that of the author, Senator Howard) that Senator Johnson said “is in error” was that Indians tribes were NOT “within the territorial limits of the United States,” and thus Indians were ineligible to qualify to having been “born in the United States” under the First category.
Senator Johnson then concludes: “If they were not [within the territorial limits of the United States], the provision would be altogether inapplicable to them.”
What this statement means is that, even granting that the phrase “and subject to the jurisdiction thereof” were to be regarded as a “qualifying phrase” to “All persons born in the United States,” the Indians would still be ineligible as First category citizens. For, under Senator Trumbull’s view (and that of Senator Howard, the author), they were NOT “within the territorial limits of the United States” to begin with; and so, irrespective of whether there is a “qualifying phrase” or not, they were deemed unqualified anyway.
From these observations, it is obvious that the debate concerning Senator Doolittle’s amendment was directed at the Second category, and that is: Whether the “language” of the Second category that Senator Doolittle directly quoted during the debate as the elliptical for “all persons subject to the jurisdiction of the United States” was applicable to aboriginal Indians.
And here, to repeat at page 2897, Congressional Globe, is how Senator Doolittle phrased his fears concerning the phrase:
“But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language he uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does."
This was the same thrust of his other remarks in the following pages:
--Page 2893: “… there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States.”
--Page 2897: “… 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.”
--Page 2897: “… what does it mean when you say that a people are subject to the jurisdiction of the United States …?”
Hence, it is precisely because of his apprehension, in spite of the treaties with them, that aboriginal Indians would be misinterpreted later to fall under the “very language” of the Second category--or to be regarded as “subject to the jurisdiction of the United States”--that prompted Senator Doolittle to propose that the words, ”excluding Indians not taxed,” be inserted. For, in the words of Senator Johnson, “what possible harm can there be in guarding against it?”
M. UNDER THE SECOND CATEGORY, CHILDREN OF U.S. CITIZENS BORN ABROAD ACQUIRE THE STATUS OF NATURAL BORN CITIZENS OF THE UNITED STATES CONSISTENT WITH THE “NATIONAL LAW” IN FORCE IN 1866
Chief Justice Fuller earlier in his dissent in Wong Kim Ark posed the more telling observation concerning the confusion on the “real object” of the phrase “and subject to the jurisdiction thereof”:
“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. And children who are aliens by descent, but born on our soil, 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,-an exemption apparently disregarded by the acts in respect of the exclusion of persons of Chinese descent.”
Justice Fuller continues: “… it seems to me that the rule, 'Partus sequitur patrem,' has always applied to children of our citizens born abroad, and that the acts of congress on this subject are clearly declaratory, passed out of abundant caution, to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere.
He cites the provisions: “Section 1993 of the Revised Statutes provides that children so born 'are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.' Thus a limitation is prescribed on the passage of citizenship by descent beyond the second generation if then surrendered by permanent nonresidence, and this limitation was contained in all the acts from 1790 down. Section 2172 provides that such children shall 'be considered as citizens thereof.'
Justice Fuller also cites English precedent:: “The language of the statute of 7 Anne is quite different in providing that 'the children of all natural-born subjects born out of the ligeance of her majesty, her heirs and successors, shall be deemed, adjudged, and taken to be natural-born subjects of this kingdom, to all intents, constructions, and purposes whatsoever.' “
And he adds that: “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 Fuller then concludes: “Considering the circumstances surrounding the framing of the constitution, I submit that it is unreasonable to conclude that 'naturalborn citizen' applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.”
The contradictions being raised here were obviously brought about by the misreading of the phrase “and subject to the jurisdiction thereof,” claimed officially and judicially to be a “qualifying phrase.” For if that reading was the “correct view”; then, to Justice Fuller, “the children of citizens of the United States, who have been born abroad,” NOT “in the United States,” from the time the Fourteenth Amendment was ratified “were and are aliens,” “and no statutory provision to the contrary is of any force or effect.”
01. Would Senator John McCain qualify as “natural-born” under the official and judicial reading? Presidential-hopeful Senator John McCain born, NOT “in the United States,” but “abroad” in the U.S. territory of Panama Canal Zone--even of American parents--does NOT qualify as “natural-born.”
For, under the prevailing official and judicial reading of the Citizenship Clause, Senator McCain is an “alien” at birth, which is clearly contrary to what the author Senator Howard said that his draft was “declaratory of what I regard as the law of the land already … by virtue of natural law and national law.”
Senator McCain is ineligible. For if the phrase is to be viewed, officially and judicially, as a mere “qualifying phrase,” Senator McCain and children similarly situated, in Justice Fuller’s words, “were and are aliens”--with the caveat that “no statutory provision to the contrary is of any force or effect,” other than “by naturalization in the United States,” NOT outside of the United States.
John W. Dean in his FindLaw column (11 March 2005) reviews the paper “Natural Born In The USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution's Presidential Qualifications Clause and Why We Need To Fix It,” Boston Law Review by Duggin and Collins (February 2005) and raises the same question:
“Senator Barry Goldwater, who ran for president in 1964, was born in the Arizona Territory in 1909, before statehood. Was he ‘born in the United States’? The authors believe that under early American common law, and given the Congressional intent underlying the Fourteenth Amendment, that ‘Senator Goldwater was probably safe in seeking the presidency. So too, they conclude, for anyone born in Alaska before January 3, 1959 or Hawaii before August 21, 1959 - their dates of statehood, respectively. “
And he adds: “What about those born in the nation's capital--the District of Columbia? Duggin and Collins believe they are probably ‘natural born’ citizens as Article II requires, but note that ‘a modicum of uncertainty remains.’ D.C., of course, never became a state; as a result, residents have only token representation in Congress, and the Constitution had to be amended so they could vote in presidential elections.”
In Rogers v. Bellei, 401 U.S. 815 (1971), “Bellei, born in Italy to a U.S. citizen mother, lost his U.S. citizenship at birth for failure to comply with INA residential requirement. The court held that the citizenship Clause of the Fourteenth Amendment does not apply to citizenship acquired by birth abroad to a U.S. citizen parent, and that such citizenship is therefore subject to congressional actions. The Court stated: “The central fact, in our weighing of the plaintiff’s claim … is that he was born abroad. He was not born in the United States. He was not naturalized in the United States.”
So, in Rogers v. Bellei, persons born “abroad” of American parents are “not born” or are “not naturalized” IN THE UNITED STATES.
However, grammatically read as intended, under Senator Howard’s second category of the Clause, children (like Senator McCain, Barry Goldwater and Bellei) fall under “the other class of persons” who are “citizens of the United States” at birth, even though born NOT “in the United States,” since they qualify at birth as “persons subject to the jurisdiction of the United States,” having been born of parents who are citizens of the United States--or of “persons subject to the jurisdiction of the United States.”
NOTE it well the significance of the phrase Justice Fuller used, “by naturalization in the United States,” since Congress has used its power of naturalization to “naturalize” persons in Puerto Rico and Guam, among other territories “belonging to the United States,” regarded as NOT “in the United States” for purposes of qualifying under the First category of “born … in the United States” but, for naturalization purposes, is suddenly read to connote “in the United States.”
02. The Second Category as Jus Sanguinis. Laudably, the Second category--insofar as the children of U.S. citizens born 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 “natural-born” citizenship status upon children of U.S. citizens “born abroad” (to include, of course, presidential-hopeful Senator John McCain), without any need of a “statutory provision.”
This “jus sanguinis” feature of the Second category is what Chief Justice Taft also mentioned in Weedin v. Chin Bow, 274 U.S. 657 (1927):
“The attitude of Chief Justice Fuller and Mr. Justice Harlan 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, 1:354, 357--58, 361—62 (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.”
In any case, the recognition in the Second category allowing the application of “jus sanguinis” in countries where the “jus soli” principle prevails is still consistent with Senator Howard’s declaration that his draft “will include every other class of persons.”
N. THE TERRITORIAL CLAUSE IS INVOKED TO JUSTIFY THE INSULAR CASES AND THE DOCTRINE OF INCORPORATED TERRITORY
Early on, in the American Territorial system, territories could be either "Organized" or "Unorganized." “If a Territory did not have self-government, it was unorganized: if it did, it was organized; and a Territory had to first be organized to ever hope to eventually achieve Statehood.”
The territories that were organized and later attained the status of “States” include those that were part of the following acquisitions:
--Louisiana Purchase Treaty 30 April 1803
--Florida Purchase Treaty 22 February 1819
--Treaty of Guadalupe Hidalgo 02 February 1848
01. The Insular Cases. In order to fully grasp the details of the Insular Cases, this rather lengthy discussion on that subject is liberally quoted below, downloaded from the website accessible at: http://www.thegreenpapers.com/slg/explanation-statehood.phtml
“All this changed just after the turn of the last Century, thanks to one of the more confusing series of decisions ever issued by the United States Supreme Court in what came to be known as the Insular Cases: these were three cases argued and then decided together in which, at issue, was the relationship with the Federal Government of the newly acquired territories so recently attached to the United States partially as the result of the Spanish-American War (Cuba … becoming part of America's growing "empire" directly from that War … All of these new territories had in common the fact that they were all islands (or groups of islands, in the case of the Philippines- hence the use of the term "insular" to describe the cases) …
“These Insular Cases were all decided on 27 May 1901: the first two cases, DeLima v. Bidwell [182 U.S. 1] and Dooley v. United States [182 U.S. 222] posed the question: when the U.S. acquired Puerto Rico, did that island cease to be a "foreign country" within the meaning of existing Federal tariff laws? The Court answered "yes" in what were a 6-3 and a 5-4 decision, respectively: in DeLima, it ruled that imports from Puerto Rico were no longer subject to a tariff and, in Dooley, it made the same ruling as regards exports to Puerto Rico. But the final case, Downes v. Bidwell posed an even dicier question: was the island covered by the constitutional requirement [Article I, “Section 8, clause 1] that "all Duties, Imposts and Excises shall be uniform throughout the United States"? Put another way: did the U.S. Constitution automatically apply to the island of Puerto Rico once it had- as the Court had determined in the two earlier cases that day- ceased to be a "foreign country"?
“The reason that the decision was confusing was that one group of 4 Justices- Justices Gray, McKenna, Shiras and White (the dissenters in Dooley; all but Gray dissenting in DeLima) logically opined that Congress is not required to make territory an inherent part of the United States- and, thus, subject to the Constitution- immediately upon acquiring it and can, at any time later, determine the proper disposition of such territory (they cited Article IV, Section 3, clause 2- which reads: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State- as giving Congress rather unfettered power to classify the non-States pretty much as it saw fit), while another group of 4 Justices: Chief Justice Fuller and Justices Brewer, Harlan and Peckham (the dissenters in Downes) just as logically opined that "the Constitution follows the flag" (that is, as soon as a newly acquired territory such as Puerto Rico was so acquired, it became an inherent part of the United States). The two views were incompatible, but made perfect sense in and of themselves: either Puerto Rico- while ceasing to be a "foreign country"- was automatically a part of the United States as a result (the Fuller/Brewer/Harlan/Peckham argument) or had to wait for Congress to make it part of the United States or not at its own discretion with the proviso that, should Congress later make Puerto Rico a part of the United States, the Constitution would then apply automatically- just not at the moment before Congress had so acted (the Gray/McKenna/Shiras/White position)
“The problem was that there was a 9th Justice, Justice Brown, who ended up writing the controlling opinion in all three Insular Cases only because he was the 5th vote in each of the 5-4 decisions; but his opinion was actually one on the extreme- for he argued that the Federal Constitution could only automatically apply to States and could never apply to Territories automatically (put another way: Brown argued that Congress did not have the Power at all to make Territories- even those that were continental and contiguous [and keep in mind that there were 4 of these- Arizona, Indian Territory, New Mexico and Oklahoma- still in existence in 1901]- an inherent part of the United States!)
“Justice Brown here cites language such as that in the 13th Amendment, which states: ‘Neither Slavery nor Involuntary Servitude ... shall exist within the United States, or any place subject to their jurisdiction as showing that besides ‘the United States,’ there were other places ‘subject to their jurisdiction’ not part of the United States.
“The Downes opinion threw everything into a bit of a tizzy for the time being, as it now meant that- unless an Act of Congress specifically extended a Constitutional Right to Arizona, New Mexico and Oklahoma (let alone Guam, Hawaii or Puerto Rico)- it did not apply therein; moreover, what Congress could give by mere statute, Congress could so easily take away…
“It was in the 1904 case of Dorr v. United States that the views of Gray, McKenna, Shiras and White would finally prevail (even though Justices Gray and Shiras had been replaced by Justices Holmes and Day, respectively, by then). Justice Day wrote the opinion of the Court in a case in which trial by jury was not extended to the Philippines absent an Act of Congress doing so on the grounds that there were two classes of Territories- those inherently part of the United States, in which the Constitution prevailed automatically, and those not part of the United States where the Constitution did not automatically prevail (though Congress could, of course, always change a Territory's status).
“Gone was the old distinction between the "organized" and "unorganized"- replaced by a distinction between those Territories incorporated into the United States and those that were unincorporated (that is, not inherently part of the United States) … Indian Territory … Alaska and Hawaii … the Philippines and Puerto Rico were unincorporated.
“According to the Opinion of the Court in Dorr, in both classes of U.S. Territory, "fundamental rights" (what we would call substantive rights or civil liberties: say, freedom of the press or the right to acquire and enjoy property and the like- the "immunities" of U.S. Citizenship) under the Constitution automatically apply; however, "formal rights" (what we might call procedural rights or civil rights, as opposed to civil liberties: the right to have a grand jury hearing prior to indictment, for example- the "privileges" of U.S. Citizenship) under the Constitution only automatically apply to incorporated Territories; those in unincorporated Territories would only gain such formal/procedural protections by specific Act of Congress (which Congress could later rescind by simple statute) extending same to such a class of Territory.”
02. Dissent in the Insular Cases. Judge Torruella discusses the “other view” of the Insular Cases, dissenting in the recently-decided case of Iguarta-de la Rosa v. U.S (1st District, decided 03 August 2005):
“… the Treaty of Paris left to future action by Congress what should be "[t]he civil rights and political status of the native inhabitants of the territories … ceded to the United States". Thus, for the first time in American history, the United States acquired territory without ipso facto granting its inhabitants citizenship, and therefore, also contrary to its founding history, the United States became a colonial nation.
“… a challenge was made to its provisions allowing the imposition of duties on goods imported into Puerto Rico from the United States. It was claimed that this tax was contrary to the Uniformity Clause of Article I, Section 8 of the Constitution. U.S. Const., art. I, § 8, cl. 1 ("all Duties, Imposts, and Excises shall be uniform throughout the United States").
“There is no question that the Insular Cases are on par with the Court's infamous decision in Plessy v. Ferguson (1896) in licencing the downgrading of the rights of discrete minorities within the political hegemony of the United States (holding that it was not a violation of the Equal Protection Clause for a state law to segregate white and colored people in public facilities provided "equal" alternatives were provided for each race);
"Those who advocated overseas expansion faced this dilemma: What kind of relationship would the new peoples have to the body politic? Was it to be the relationship of the Reconstruction period, an attempt at political equality for dissimilar races, or was it to be the Southern "counterrevolutionary" point of view which denied the basic American constitutional rights to people of color? The actions of the federal government during the imperial period and the relation of the Negro to a status of second-class citizenship indicated that the Southern point of view would prevail. The racism which caused the relegation of the Negro to a status of inferiority was to be applied to the overseas possessions of the United States."
“The Insular Cases, would today be labeled blatant "judicial activism" … They are anchored on theories of dubious legal or historical validity, contrived by academics interested in promoting an expansionist agenda. These theories in turn provided a platform that allowed a receptive bare plurality of Justices to reach a result unprecedented in American jurisprudence and unsupported by the text of the Constitution.
“In fact, what precedent existed was contrary to the premise underlying the Insular Cases, for in Dred Scott, Chief Justice Taney had concluded:
“There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure … [N]o power is given to acquire a Territory to be held and governed permanently in that character.
“This conclusion, however, presented no obstacle to Justice Brown, who wrote the opinion of the Court in Downes v. Bidwell, the leading Insular Case:
“We are also of opinion that 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."
“Justice Brown goes on to say, in language that is tinged by Plessy-like views:
“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 … which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians.
“He concluded that:
“A false step at this time might be fatal to what Chief Justice Marshall called the American Empire … 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; and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out … We decline to hold that there is anything in the Constitution to forbid such action. We are therefore of the opinion that the Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution ….
“Justice White's concurrence in Downes provided the central support for the seminal "unincorporated territory" doctrine for which the Insular Cases have become known. This doctrine states that in the case of unincorporated territories -- that is, those for which, at the time of acquisition, the United States did not express an intention of incorporating into the Union -- only those parts of the Constitution dealing with "fundamental" rights apply. See Coudert, supra, note 32, at 832 (relating a conversation with Justice White in which it was "evident that he was much preoccupied by the danger of racial and social questions of a very perplexing character and that he was quite as desirous as Justice Brown that Congress should have a very free hand in dealing with the new subject populations").
“Chief Justice Fuller's dissent, which was joined by Justices Harlan, Brewer and Peckham, and thus gathered the most votes, followed a strict construction of the Constitution. It rejected the plurality's conclusion as inconsistent with the Constitution, because it
“assumes that the Constitution created a government empowered to acquire countries throughout the world, to be governed by different rules than those obtaining in the original states and territories, and substitutes for the present system of republican government a system of domination over distant provinces in the exercise of unrestricted power.
“Justice Harlan's dissent was equally forceful in pointing out that:
“Still less is it true that Congress can deal with new territories just as other nations have done or may do with their new territories … Monarchical and despotic governments, unrestrained by written constitutions, may do with newly acquired territories what this government may not do consistently with our fundamental law. To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution … The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces,--the people inhabiting them to enjoy only such rights as Congress chooses to accord to them,-- is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.
“Justice Harlan went on to say, in part to answer the racial overtones of the plurality, that:
“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 … The Constitution is supreme over every foot of territory, wherever situated, under the jurisdiction of the United States, and its full operation cannot be stayed by any branch of the government in order to meet what some may suppose to be extraordinary emergencies. If the Constitution is in force in any territory, it is in force there for every purpose embraced by the objects for which the government was ordained.
“Although decided by an exiguous plurality of five votes to four, and based on dubious constitutional foundations, the Insular Cases became an article of faith in American constitutional dogma, with far-reaching consequences on the lives of the millions of persons whom they impacted in very fundamental ways.”
03. Court Decisions after the Insular Cases. Half a century later, In Reid v. Covert, 354 U.S. 1 (1957), Justice Black lambasted the “very dangerous doctrine” enunciated by the Insular Cases, the pertinent part of which follows:
“The ‘Insular Cases,’ which arose at the turn of the century, involved territories which had only recently been conquered or acquired by the United States. These territories, governed and regulated by Congress under Art. IV, 3, had entirely different cultures and customs from those of this country. This Court, although closely divided, ruled that certain constitutional safeguards were not applicable to these territories since they had not been ‘expressly or impliedly incorporated’ into the Union by Congress. While conceding that ‘fundamental’ constitutional rights applied everywhere, the majority found that it would disrupt long-established practices and would be inexpedient to require a jury trial after an indictment by a grand jury in the insular possessions.
“The ‘Insular Cases’ can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. None of these cases had anything to do with military trials and they cannot properly be used as vehicles to support an extension of military jurisdiction to civilians. Moreover, it is our judgment that neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.”
In U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990), Chief Justice Rehnquist: opined:
“The Insular Cases … held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 (1922) (Sixth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U.S. 91 (1914) (Fifth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U.S. 138 (1904) (jury trial provision inapplicable in Philippines) … Only "fundamental" constitutional rights are guaranteed to inhabitants of those territories … And certainly, it is not open to us in light of the Insular Cases to endorse the view that every constitutional provision applies wherever the United States Government exercises its power.
Even Justice Brennan, with whom Justice Marshall joins, dissenting, said:
“The Insular Cases … are likewise inapposite. The Insular Cases all concerned whether accused persons enjoyed the protections of certain rights in criminal prosecutions brought by territorial authorities in territorial courts. These cases were limited to their facts long ago, see Reid v. Covert, 354 U.S., at 14 (plurality opinion) ("[I]t is our judgment that neither the cases nor their reasoning should be given any further expansion"), and they are of no analytical value when a criminal defendant seeks to invoke the Fourth Amendment in a prosecution by the Federal Government in a federal court.”
04. The “occult meaning” of the Doctrine of Incorporated Territory the Insular Cases enunciated. The Doctrine of Incorporated Territory can be summarized by quoting only a few of the words of what the Justices, dissenting in Downes v. Bidwell said:
Chief Justice Fuller, with whom concurred Justices Harlan, Brewer and Peckham:
“… if an organized and settled province of another sovereignty is acquired by the United States, Congress has the power to keep it, like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period … irrespective of constitutional provisions … Great stress is thrown upon the word ‘incorporation,’ as if possessed of some occult meaning …”
Justice Harlan, dissenting:
“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.”
Sadly, the “occult meaning” of the Doctrine of Incorporated Territory and the “disembodied shade” of “UNincorporated” territories to this day persists.
O. UPON THE RATIFICATION OF THE FOURTEENTH AMENDMENT, THE TERRITORIAL CLAUSE APPLIES ONLY TO “TERRITORY” NOT TO “PERSONS” RESIDING OR BORN IN TERRITORY WHO ARE “SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
Under the 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."
01. The Territorial Clause speaks of “PROPERTY” NOT of “PERSONS”. 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 "dispose of" them as if these "PERSONS" were one kind of "PROPERTY," like the "PROPERTY" named "Dred Scott"?
In Dred Scott v. Sandford, 60 U.S. 393 (1857), Justice 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 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. “
Under the Court’s reading of the Territorial Clause, therefore, Territorial Filipinos are to be treated---like Dred Scott--“as an ordinary article of merchandise and traffic, whenever profit could be made by it” who could be “disposed of” in the manner of “a mere transfer of rights of property.”
There were an estimated ten million Territorial Filipinos upon the ratification of the Treaty of Paris in 1899. The United States paid 20 million Dollars to possess them and the territory they were inhabitants of. So, “as an ordinary article of merchandise and traffic” involving “a mere transfer of rights of property,” a Territorial Filipino was bought for two Dollars, even much less if the cost per hectare of the real estate is included.
In short, under the Territorial Clause as interpreted under the Insular Cases, Territorial Filipinos were to be treated, NOT as PERSONS, but as disposable, movable “PROPERTY,” for they had “no rights which the white man was bound to respect.”
Congress, to repeat, 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 changed. Congress is clipped off its power to imagine that it can still “dispose of” “all persons subject to the jurisdiction of the United States” in “territory … belonging to the United States” who are now declared to be "citizens of the United States.”
The Congress, therefore, should lay its hands off “persons subject to the jurisdiction of the United States” born or residing in that Territory or, in Senator Trumbull’s word, “everywhere,” for they are “persons” the Citizenship Clause in Section 1 of the Fourteenth Amendment now shields with the constitutional armor of inviolability.
02. The Second category in the Citizenship Clause does NOT speak of “TERRITORY” but of “PERSONS.” To restate what Justice Brown said in Downes v. Bidwell: “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: “We are,” therefore “of the opinion that 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.”
But the Court has misread the Citizenship Clause in relation to the Territorial Clause.
The Citizenship Clause does NOT refer to territories acquired by treaty, to territories ”organized” or “incorporated,” nor to “any place” at all “belonging to the United States.”
The Second category of the Citizenship Clause deals with the SANCTITY--NOT POSSESSION--OF PERSONS, of “all persons subject to the jurisdiction of the United States” who are, in the words of Senator Trumbull, “everywhere” and, in the words of the author Senator Howard, “beyond the legislative power.”
And nowhere is there in the phraseology a hint of “territory”--instead, “ALL PERSONS.”
Thus, whatever the “implication” from “the power to acquire territories by treaty,” as premised by Justice Brown, does NOT include the status of PERSONS “subject to the jurisdiction of the United States” residing or born in ceded territory who become citizens of the United States under the Second category of the Citizenship Clause discussed at length earlier here.
The 1787 “power to acquire territories by treaty” that expands the “American Empire” is conceded, but that power must bow to the 1868 command that “all persons subject to the jurisdiction of the United States” residing or born in territories once acquired under that “plenary” Imperial Power invoked “are citizens of the United States.”
03. Territorial Clause is relied on to justify Citizenship by “federal statute.” In the Position Paper of the Task Force on Free Association, “Guam’s Political Future: An Argument for Free Association with U.S. Citizenship,” Asian-Pacific Law and Policy Journal, Vol. 4, Issue 1 (Winter 2003), the author asserts:
“U.S. law acknowledges several ways that an individual can obtain citizenship. A person can acquire citizenship at birth jus soli (born on United States soil) or jus sanguinis (born to a U.S. citizen parent) Citizenship can also be acquired after birth through the process of naturalization, the procedures for which are detailed in the U.S. Immigration and Nationality Act (INA). The current INA (Section 101(a)(38) ) clarifies that Guam, Puerto Rico, and the U.S. Virgin Islands count as “United States soil” for purposes of conferring citizenship jus soli … [B]ecause they acquired their citizenship by statute [the native inhabitants of these territories] do not have constitutionally-protected citizenship--they do not have a constitutional right to retain their U.S. citizenship …They are not ‘Fourteenth-Amendment-first-sentence citizens’ … The consequences of not having this ultimate protection has significant implications when it comes to the stability and certainty of retaining one’s citizenship. “
The paper claims that “U.S. law acknowledges several ways that an individual can obtain citizenship. A person can acquire citizenship at birth … jus sanguinis (born to a U.S. citizen parent).”
But the Citizenship Clause as it is now officially and judicially read is clear: “All persons born or naturalized in the United States … are citizens of the United States …” In other words, under this category, U.S. citizenship is conferred upon “persons born or naturalized” ONLY “in the United States”--not anywhere else.
And there is no mention whatsoever of parentage in the Clause. Thus, the “jus sanguinis” (born to a U.S. citizen parent) cited above must fall under the “citizenship by statue” category, for “they are NOT ‘Fourteenth-Amendment-first-sentence citizens,” as claimed, in the manner, that is, that the Clause is now officially and judicially read.
Justice Fuller’s dissent in Wong Kim Art, cited earlier here, is instructive:
“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.'”
So, children born abroad of U.S. citizens “are not citizens.” They need to be “in the United States” and NOT outside of the United States so that they can qualify, as worded, to be “naturalized in the United States.”
The paper also claims that the islands of “Guam, Puerto Rico, and the U.S. Virgin Islands are counted as “United States soil” for purposes of conferring citizenship “jus soli (born on United States soil).”
But if these islands are to be regarded as already “in the United States” (which is obviously what the phrase used, “United States soil” means), persons “born” in these islands already qualify to be “Fourteenth-Amendment-first-sentence citizens.”
So, the question begs. Why does the paper refer to the status of the native inhabitants of these islands “citizenship by statute”?
If the native inhabitants are regarded by law to be “in the United States” for purposes of qualifying to be “naturalized”; then, these natives also qualify to be deemed as having been “born in the United States,” since the conjunction used to connect “born” and “naturalized” in the phrase “All persons born or naturalized” is “or.”
Even then, if they acquired their citizenship by “Collective Naturalization” claimed to be authorized under the “plenary” powers of the Territorial Clause; then, they still need to be declared as having been born OUTSIDE of, and NOT, “in the United States” as “aliens” so that they can qualify to be “naturalized in the United States.”
Whichever option is taken to legitimize their status, the difficulty and uncertainty brought about by the misreading of the Citizenship Clause remains to fester.
But correctly read under the Second category, children of U.S. citizens born “abroad” are U.S. citizens. And native inhabitants of, and those born in, Puerto Rico, Guam and the U.S. Virgin Islands acquire U.S. citizenship from and after the moment they become “subject to the jurisdiction of the United States” AT BIRTH or AFTER BIRTH.
P. THE INAPPLICABILITY OF THE NATURALIZATION CLAUSE TO TERRITORIAL FILIPINOS
Congress is empowered "to establish an uniform rule of naturalization."
But this power is irrelevant, for under Sec. 101(a), par. 23 INA:
“The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever."
In other words, “naturalization" is a status a person can ONLY acquire “AFTER BIRTH." It is certainly inapplicable to a person the Constitution under the Citizenship Clause confers the status of “citizen of the United States,” or even a ”National” AT BIRTH.
Congress under the power of naturalization has "a power to confer citizenship, not a power to take it away," quoting Chief Justice Marshall's well-considered and oft-repeated dictum in Osborn and cited in Wong Kim Ark.
Afroyim v. Rusk, 387 U.S. 253 (1967) further held that:
“To uphold Congress' power to take away a man's citizenship because he voted in a foreign election … would be equivalent to holding that Congress has the power to ‘abridge,’ ‘affect,’ ‘restrict the effect of,’ and ‘take … away’ citizenship. Because the Fourteenth Amendment prevents Congress from doing any of these things, we agree with THE CHIEF JUSTICE'S dissent in the Perez case that the Government is without power to rob a citizen of his citizenship …”
Thus, Territorial Filipinos do NOT qualify to be “naturalized in the United States,” since they were “persons subject to the jurisdiction of the United States” AT BIRTH who acquired United States citizenship under the Second category of the Citizenship Clause upon the ratification of the 1898 Treaty of Paris on 11 April 1899.
So, under the Second category, Territorial Filipinos are citizens of the United States. Having acquired that status, Congress is devoid of “power to take it away,” for “the Government is without power to rob a citizen of his citizenship.” And, more importantly, the Citizenship Clause is “beyond the legislative power.”
Q. ARTICLE IX OF THE 1898 TREATY OF PARIS AUTHORIZING CONGRESS TO DETERMINE THE “POLITICAL STATUS” OF TERRITORIAL FILIPINOS IS VIOLATIVE OF THE CONSTITUTIONAL BIRTHRIGHT ACQUISITION OF U.S. CITIZENSHIP OF “PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
Article IX of the 1898 Treaty of Paris provides 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."
01. A treaty provision cannot annul a constitutional command. Justice Harlan in his dissent in Downes v. Bidwell 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. The grant by Spain could not enlarge the powers of Congress, nor did it purport to secure from the United States a guaranty of civil or political privileges.
“Indeed, a treaty which undertook to take away what the Constitution secured, or to enlarge the Federal jurisdiction, would be simply void.
“'It need hardly be said that a treaty cannot change the Constitution, or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government.' The Cherokee Tobacco, 11 Wall. 620, sub nom. 207 Half Pound Papers of Smoking Tobacco v. United States, 20 L. ed. 229.
“So, Mr. Justice Field in De Geofroy v. Riggs, 133 U.S. 267. Rep. 297: 'The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the states. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent.'
Reid v. Covert, 354 U.S. 1 (1957) affirms 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 … This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.”
It is, therefore, ludicrous to insist that a mere treaty can nullify a RIGHT as precious as the RIGHT to U.S. citizenship the Citizenship Clause constitutionally guarantees to Territorial Filipinos, “persons subject to the jurisdiction of the United States.”
02. Unlike treaties with the Indian aboriginals, the Treaty of Paris was entered into by and between the United States and the Spanish Crown with no representation from Territorial Filipinos. The Protocol of Peace between the United States and the Spanish Crown was signed 12 August 1898. Article III of the Protocol reads.
“The United States will occupy and hold the city, bay and harbor of Manila, pending the conclusion of a treaty of peace which shall determine the control, disposition, and government of the Philippines.”
On 06 February 1898, the U.S. Senate ratified the Treaty of Paris by a vote of 52 to 27. And on 09 March 1898, the Queen Regent of Spain, María Cristina, signed the Treaty of Paris, breaking the deadlock in the Spanish Cortes.
The Treaty of Paris was proclaimed 11 April 1898. During the negotiations--
Natives of Las Islas Filipinas through Felipe Agoncillo's Memorial to the U.S. Senate Addressed to the U.S. Secretary of State (24 January 1899) presented objections:
“I respectfully submit that the United States, not having received from the inhabitants of the Philippine Islands authority to pass laws affecting them, its legislation as to their welfare possesses no binding force upon my people.
”Spain could not deliver possession of the Philippines to the United States, she having been ousted by their people, and in fact at the present moment the United States holds only an entrenched camp, controlling one hundred and forty-three square miles, with 300,000 people, while the Philippine Republic represents the destinies of nearly 10,000,000 souls, scattered over an area approaching 200,000 square miles.
“Spain having no possession (except minor garrison posts), and no right of possession in the Philippines, could confer no right to control them.”
Not only that, during the Treaty negotiations, “Spanish commissioners argued that Manila had surrendered after the armistice and therefore the Philippines could not be demanded as a war conquest, but they eventually yielded because they had no other choice, and the U.S. ultimately paid Spain 20 million dollars for possession of the Philippines.”
Cession of La Islas Filipinas was, therefore, in virtue of a PURCHASE, NOT as part of the “spoils of war.”
So, unlike treaties with Indian tribes, the 1896 Treaty of Paris was negotiated and ratified exclusively by and between the United States and the Spanish Crown, without the participation of, or representation by, the natives of Las Islas Filipinas.
R. PROVISIONS OF THE 1934 PHILIPPINE INDEPENDENCE ACT UNILATERALLY DENATIONALIZE TERRITORIAL FILIPINOS WHO WERE BORN CITIZENS OF THE UNITED STATES UNDER THE SECOND CATEGORY OF THE CITIZENSHIP CLAUSE, AND RENDER THEM STATELESS AT BIRTH
The same constitutional supremacy of the Citizenship Clause over treaties applies to mere acts of Congress. The author, Senator Howard, made it clear: The Citizenship Clause “is beyond the legislative power.”
However, Section 8(a) of the 1934 Philippine Independence Act states:
"(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 16 of the Act, declares:
"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."
01. Alienage as “a presupposition contrary to fact.” The provisions of the Act have already been discussed thoroughly in Part I of this paper and need not be repeated, except to restate that, even if Territorial Filipinos “shall be considered as if they were aliens” and hence subject to U.S. immigration laws, this is simply a “presupposition contrary to fact.”
And what is “contrary to fact” is the “presupposition” that, PRIOR to “the final and complete withdrawal of American Sovereignty” on 04 July 1946:
--the Philippine Islands was “a separate country” or could even be regarded “to the same extent as in the case of other foreign countries”
--Territorial Filipinos were “aliens.”
But it is a deadly “presupposition,” for what is “contrary to fact,” authorizes the humiliating deportation of Territorial Filipinos--“persons subject to the jurisdiction of the United States” and hence “citizens of the United States”--who violate U.S. immigration laws by “overstaying” in the United States!
Under this aberrant episode of the American system of justice, therefore, a “presupposition contrary to fact” can be made the basis for their laws.
Thus, a U.S. law declaring that ALL Territorial Filipinos are TERRORISTS (even RAPISTS, if the Law also says so)--which is, of course, a declaration of “presupposition contrary to fact”--is LEGAL, is enforceable, even if untrue.
In any case, the FACTS are: The Philippine Islands was territory over which the United States was sovereign between 11 April 1899 and 04 July 1946, following its cession from the Spanish Crown under the 1898 Treaty of Paris, and Territorial Filipinos were citizens of the United States under the Second category of the Citizenship Clause of the Fourteenth Article of Amendment to the Constitution of the United States.
S. SUMMARY OF THE CONFUSION AND CONTRADICTIONS THE MISREADING OF THE CITIZENSHIP CLAUSE ENGENDERED
In the light of all these arguments presented, the true meaning of the Second category in the Citizenship Clause should now be afforded the recognition and significance Senator Howard intended it to convey.
Without intending to be disrespectful, it is evident that the Court’s reading of the phrase “and subject to the jurisdiction thereof” as a “qualifying phrase” was viewed with reluctance (Justice Gray using such uncertain and cautious words as “would appear”), which was not without contrary yet equally convincing arguments from justices dissenting.
Having overlooked the grammatical reading of the phrase as intended, it would seem that the Court was struggling to explain a phrase they had woefully misread and, as to be expected, was faced with contradictions in their explanations and the difficulty of reconciling their flawed justifications.
Must we, therefore, continue to misread the phrase “and subject to the jurisdiction thereof” in the Citizenship Clause as a “qualifying phrase” in order to accommodate and justify already “recognized exceptions” of the ancient common law rule on birthright, “exceptions” which are, to repeat, as old as the rule itself?
01. The Second category, which is consistent with what Senator Howard said that his draft of the Clause “will include every other class of persons,” resolves the various Immigration and naturalization controversies in the past concerning the status of the following:
--Children of U.S. citizens born abroad (“Jus Sanguinis” or U.S. citizenship by descent)
--Female U.S. citizen married to a foreigner and her children (Equality Male and Female)
--Puerto Ricans, Guamanians and inhabitants of other U.S. territories and the Aboriginals (Collective Naturalization including those at birth)
02. The inapplicability of the Territorial Clause and the Naturalization Clause to Territorial Filipinos, natural-born citizens of the United States under the Second category in the Citizenship Clause, grammatically read as intended
03. The unconstitutionality of the provisions of the 1898 Treaty of Paris and the 1934 Philippine Independence Act downgrading the political status Territorial Filipinos acquired under the Citizenship Clause, grammatically read as intended
04. The Schemes concocted to deny Fourteenth Amendment Birthright to Territorial Filipinos. The various schemes the U.S. Congress concocted to deny Territorial Filipinos their BIRTHRIGHT include several firsts in U.S. legal and constitutional history:
--The uncertain “political status” of inhabitants of a ceded territory under the Treaty of Paris
--The new “occult” Doctrine of Incorporated Territories (originally either “organized” or “unorganized”)
--The newly-created oxymoron status of “Non-citizen nationals” conferred upon Filipinos yet mandated to “owe allegiance to the United States”
--The anomaly of American nationals AT BIRTH, entitled to the protection of the United States, yet “considered as if they were aliens”
--Territory “subject to the jurisdiction of the United States,” over which the United States exercised the rights of sovereignty, yet considered “to the same extent as in the case of other foreign country”
--The denial of Birthright citizenship to Territorial Filipinos, “persons subject to the jurisdiction of the United States,” born in territory over which the United States is sovereign
05. Territorial Filipinos were rendered STATELESS AT BIRTH. The injustice inflicted upon Territorial Filipinos by the Americans was purely a case of BIRTHPLACE PREJUDICE ABORTING BIRTHRIGHT CITIZENSHIP, of a COLLECTIVE DENATIONALIZATION, rendering Territorial Filipinos virtually WITHOUT ANY COUNTRY--STATELESS--AT BIRTH!
The term “stateless person” is defined as:
“A person who is not considered as a national by any State under the operation of its law.” (UNCHR)
“People may also be stateless if they are members of a minority ethnic group which is denied citizen status in the country on whose territory they are born.” (see Wikipedia)
Section 24 of the International Covenant on Civil and Political Rights of the Office of the United Nations High Commissioner on Human Rights (UNCHR) is relevant:
“3. Every child has the right to acquire a nationality.”
To that, add Section 12 of the UNCHR Convention relating to the Status of Stateless Persons which in part provides that:
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
4. No one shall be arbitrarily deprived of the right to enter his own country.
The “entry into force” of these two Human Rights Covenants was only recently, on 23 March 1976 and 06 June 1960, respectively. Yet, had it been in force in 1934, the United States, a signatory, would have grossly violated, without any doubt, the provisions embodied in these Covenants.
For it was, to repeat, in 1934 that Section 8(a) of the Philippine Independence Act stipulated a “presupposition contrary to fact” (“shall be considered as if”) worded this way:
"(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 ..."
The glaring “Human Rights” violations under U.S. immigration laws and implementing orders, as defined, would include the following:
--“Under the operation of [U.S.] law,” Territorial Filipinos are considered to be “aliens”
--The children of Territorial Filipinos are deprived of their “right to acquire a nationality”
--Territorial Filipinos are “denied citizen status in a country on whose territory they are born”
--Territorial Filipinos, “lawfully within the territory of a State,” are denied “the right to liberty of movement and freedom to choose his residence”
--Territorial Filipinos are “arbitrarily deprived of the right to enter his own country”
In short, Territorial Filipinos, as in Dred Scott, were merely part of the disposable “property” of the United States; they possessed "no rights which the white man was bound to respect."
In any case, this blatant racism and the injustice it spawned which continues to persist to this day must now reconcile with the command of the Citizenship Clause, grammatically read as intended by Senator Jacob Merritt Howard, the author, proclaiming that:
--TERRITORIAL FILIPINOS--“PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”--ARE CITIZENS OF THE UNITED STATES.
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To repeat the command in Section 2 (a) of the Philippine Independence Act:
"(1) All citizens of the Philippine Islands shall owe allegiance to the United States."
Part IV will discuss the legal and historical context of the American mandate that Territorial Filipinos “shall owe allegiance to the United States” but, alas, “shall be considered as if they were aliens” and hence shall be required to secure a VISA to enter their mother country, ”the United States.”
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