A MONUMENTAL READING ERROR

NOTE: This paper has been revised and transferred to a new site at:
http://territorialfilipino.wetpaint.com/?mail=1201&t=anon


DOES THE CITIZENSHIP CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES APPLY TO TERRITORIAL FILIPINOS?

INTRODUCTION

COLONIAL MENTALITY AND THE RIGHT TO U.S. CITIZENSHIP
This paper investigates the political status of Filipinos during the American Territorial period.

Filipinos are wont to dismiss efforts to link the fate of Filipinos to Americans as "colonial mentality"--the pejorative term defined as "a cultural notion of inferiority sometimes seen amongst populations previously subjugated and colonized by foreign entities."

Nothing in this paper, assuredly, resurrects "colonial mentality."

For it survives only in the mind of the submissive, the unquestioning, where the "mentality" of a "colonial" lurks, thrives--a "mentality" incessantly brainwashed to be intimidated, to be cowed by anything resembling "WHITE."

This paper is about a RIGHT DENIED, undertaken primarily to stimulate efforts and drum up support to vindicate a RIGHT America denied Filipinos born during the American Territorial period—their BIRTHRIGHT, that is, as NATURAL-BORN CITIZENS OF THE UNITED STATES.

The very survival of nationhood the Philippines is now confronted with is grim; it demands a RADICAL solution that Nationalists certainly would howl in protest.

But, in a way, the purpose is still Nationalistic, because it is a collective demand of a once subjugated non-white race, the FILIPINO PEOPLE, to a former colonizer and sovereign, AMERICA, to recognize a RIGHT withheld, a DENIAL spawned by dictates of prejudice, racism, intolerance, discrimination.

A RIGHT is a RIGHT by whatever name ascribed.

The efforts to be taken are certainly not about racial hierarchy—American superiority, Filipino inferiority; and this undertaking, definitely, is not to be mistaken as a veiled attempt to make the Philippines the 51st State of the Union.

Far from all these vestiges of "colonial mentality," this paper deals instead with the notion as fundamental as EQUALITY, particularly of EQUAL RIGHTS DENIED to a select category of Filipinos--TERRITORIAL FILIPINOS, or Filipinos born after the 1898 Treaty of Paris is signed and before the Philippine Independence is proclaimed in 1946.

Rather than pray in earnest for financial assistance, beg on bended knees for usurious loans to be condoned or even seek compensation for the inequity and injustice endured, this paper demands from AMERICA that the RIGHT DENIED to TWO generations of TERRITORIAL FILIPINOS, their RIGHT to the OPPORTUNITY, the PURSUIT OF HAPPINESS that all citizens of the United States are entitled to enjoy be recognized, upheld.

Irving Brant forcefully asserts this militant approach:

"Human rights are not to be denied because some judges went wrong a hundred years ago. Judicial disagreements produce dissenting opinions, and dissenting opinions publicize the disagreements. They also educate the public, which then helps to turn the remedial dissents into the law of the land”--The Bill of Rights: It's Origin and Meaning, p. 502 (1967).

COMPELLED TO OWE ALLEGIANCE TO THE UNITED STATES
The Spanish-American War brings America into Manila Bay to annihilate Admiral Montojo’s armada. A “mock battle,” staged later--to uphold “Spain’s honor”--facilitates U.S. occupation of Manila, involving a “secret” deal Belgian Consul Andre mediates between Governor-General Jaudenes and Admiral Dewey.

But the farce is performed a day after the Protocol of Peace is signed; and so, under the Treaty of Paris, “the Philippines could not be demanded as a war conquest.” Spanish negotiators “eventually yielded” to America’s $20 million bid to purchase and assume “All rights of possession, supervision, jurisdiction, control and sovereignty … in and over the territory and people of the Philippines”--as “prime real estate for coaling stations.”

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

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

A few months earlier, Independence of what was then Las Islas Filipinas is proclaimed, a Constitution, a Bill of Rights promulgated, a Republic, a National Flag, a National Anthem inaugurated--a FILIPINO FIRST in ALL of Asia until America intervenes.

Denied Treaty participation, Filipinos protest as BETRAYAL American occupation, invoking a RIGHT basic to Democracy, America grossly violates—the CONSENT of Filipinos before being compelled by Treaty to "owe allegiance" to a new colonizer and sovereign.

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

America tags the war merely as an "Insurrection" by wild Indios who refuse to "owe allegiance" to the United States and to renounce loyalty to the Philippine Republic, with the lofty aim to "Christianize" (but Filipinos were Roman Catholics since 1521) and to "civilize" (but University of Santo Tomas is older than Yale and Harvard). To Mark Twain, it was pure and simple “Imperialism,” or was it GENOCIDE?

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

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

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

"Now, boys, sign this with me."

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

War Body Count: Filipinos--200,000 "collateral" Innocents, 20,000 Patriots; Americans--5,000 invaders (high-ranking officers, among the KIA).

President William McKinley’s policy of “Benevolent Assimilation”—Americanization--of Filipinos, Spain Christianized but miserably failed to hispanize, begins. For, inexplicably, unlike natives in Spain's South American colonies who were all transformed into Hispanics, Filipinos fiercely retained their hodgepodge of regional dialects and were never hispanized, after over three centuries of total Spanish domination; but in only less than half a century of United States rule, Territorial Filipinos were Americanized!

Was it the “Thomasite” teachers who arrived to recreate “In Our Image” our “Little Brown Brother,” instilling in English democratic aspirations, ideals, values--virtues, mind you, innate to Filipinos (ask Lapu-Lapu, Andres Bonifacio, Jose P. Rizal, even Benigno Aquino)--to uphold and revere, to defend and die for, yet compelled to owe allegiance?

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

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

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

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

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

And he concluded:

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

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

TERRITORIAL FILIPINOS NOW CHALLENGE THE PREVAILING OFFICIAL AND JUDICIAL READING OF THE CITIZENSHIP CLAUSE
It was the PREGERSON DISSENT in Rabang that inspired the authors to embark on a journey of scrutinizing a FUNDAMENTAL RIGHT DENIED to Territorial Filipinos. And this led us to a deeper analysis of what the author really intended the Clause to convey.

What we gathered during our studies is that the author’s intent, grammatically read, has altogether been incredibly overlooked--a misreading of the phrase “and subject to the jurisdiction thereof” the legal community already reveres as gospel truth.

Undaunted, WE, TERRITORIAL FILIPINOS, challenge this official and judicial view of the Citizenship Clause--now stare decisis for well over a hundred years, mindful that:

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

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

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

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

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

Yet, to the U.S. Congress, they “shall be regarded as if they were aliens” or aliens by supposition, contrary to fact. And It is precisely the misreading of the Citizenship Clause that legitimized that “supposition” and rendered TERRITORIAL FILIPINOS--natural-born citizens of the United States under the Clause (had it been grammatically read as intended)--STATELESS, WITHOUT ANY COUNTRY, AT BIRTH!

What is significant to underscore is the undeniable fact that Territorial Filipinos were all born before July 04, 1946, the date the U.S. Territory of the Philippine Islands (or the Commonwealth of the Philippines by 1934) became the Republic of the Philippines, a state that was still non-existent at the time they were born.

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

Justice and a sense of fair play thus demand that the United States should have afforded Territorial Filipinos the opportunity, at the very least, to expressly renounce or preserve voluntarily the American nationality they acquired AT BIRTH upon its withdrawal of sovereignty--otherwise, having been disowned by the sovereign at their place of nativity, to what State can they now claim to having been born to?

After a long, careful review, we are fully convinced of the weight of our findings, aware that the vindication of this Claim, of this RIGHT, will go a long way towards rectifying, finally, the injustice, the inequity--and the inhumanity--that has become the sad birthright of the Filipino from decades of greedy exploitation by their so-called religious or benevolent colonizers, for in the words of Justice Black:

“The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”--Afroyim v. Rusk, 398 U.S. 253 (1967)

Grammatically reading the Citizenship Clause may well be the first step towards the realization of that endeavor—TO VINDICATE A RIGHT TO U.S. CITIZENSHIP AMERICA DENIED! Other Filipinos, the heirs of Territorial Filipinos, we are certain, will follow the road few have trodden, to add, refine and INSIST!

PART ONE

EVERY OTHER CLASS OF PERSONS“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”--Citizenship Clause in Section 1 of the Fourteenth Amendment

The Senate Citizenship Clause debate on May 30, 1866 is recorded in the internet accessible Congressional Globe, 39th Congress, 1st Session, pp. 2890-2897 (3 columns per page, 8 pages in all) at

http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=2
(enter page number and click “turn to image”)

Or naturalized
Note it well at the outset that the words “or naturalized” do not appear in the draft of the Clause the author, Senator Jacob Merritt Howard, offered as an amendment to Sec. 1, Joint Resolution (HR) 127 and “agreed to” by the Senate on May 30, 1866--the same day Senator Howard proposed it (p. 2890, 2nd col.).

The words “or naturalized” were inserted “after the word ‘born’” a week later on June 8, 1866 upon motion of Senator William Pitt Fessenden, with “no objection” by Senator Howard, and “agreed to,” strangely enough, without any debate, “by general consent” (p. 3040, 2nd col.).

Thus, citations from the Congressional Globe during the debate to be quoted in this paper (pp. 2890-2897) are based on the discussion of Senator Howard’s original draft without the words “or naturalized.”

Every other
In his sponsorship speech, Senator Howard clarified his intent:

“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 [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a desideratum in the jurisprudence and legislation of this country.” (p. 2890, 2nd col.)

After identifying the exceptions to “persons born in the United States” that his draft “will not, of course, include” (underscore the author’s use of the words, “of course”), Senator Howard in his speech asserts that his draft “will include every other class of persons.”

The phrase “every other” suggests that his draft “will include” ALL of SEVERAL “class of persons,” to the same extent as a similar phrase used in Art. IV, Sec.1 of the U.S. Constitution is intended to convey:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” (Compare “every other class” with “every other State.”)

Did Senator Howard intend the phrase to mean “every other class of persons” born?

Definitely, the draft already includes the slave-born, persons born in slavery, the Court in Dred Scott v. Sandford (1864) regarded merely as “property,” since they now fall squarely under the class of “persons born in the United States,” a recognition that was long overdue.

But other than the exceptions named (to include the aboriginal Indians who were deemed during the debate as among those to be excluded), there can only be ONE class of “persons born in the United States,” since birthright under “jus soli” is a unique status vested at birth, upon the indelible circumstance of place of birth, irrespective of parentage, race, color, creed or purse.

So, if those born in the United States (the slave-born included) represent only ONE class of persons, while the category of “every other class of persons” Senator Howard said his draft “will include” implies that there are SEVERAL others to reckon with; who, pray tell, belongs to this category of “every other class of persons”?

Could they be the “class of persons”--“every” one of them or ALL PERSONS--who ought to be recognized, or are entitled to be regarded, as citizens of the United States, “other” than those born or already declared to be?

The great question of citizenship
For if, indeed as claimed, the draft Senator Howard proposed “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States [which] has long been a desideratum in the jurisprudence and legislation of this country”; then, certainly, he would have had written his draft to be so definitively worded as to convey an all-encompassing, comprehensive definition of citizenship of the United States to include ALL PERSONS, that is, “every other class of persons” already regarded, or to be recognized, as citizens, and not only those born, to achieve his rather ambitious quest of resolving once and for all “the great question of citizenship” by removing “all doubt as to what persons are or are not citizens.”

Besides, if Senator Howard’s draft is really what he proclaimed it to be anchored upon, which is that, it “is simply declaratory of what I regard as the law of the land already … by virtue of natural law and national law”; then, accordingly, the category of “every other class of persons” Senator Howard refers to in his speech must be read to include ALL of several class of persons already recognized “by virtue of natural law,” or otherwise declared “by virtue of national law,” to be citizens of the United States at the time he wrote the draft in 1866--and not just the privileged “jus soli” class of those born, even assuming that there still are several “other class of persons” born in the United States, “by virtue of natural law and national law,” which, as argued above, is highly unlikely.

Beyond the legislative power
In fact, during the debate, Senator Howard again highlighted the importance of this “great question of citizenship” that his draft was intended to resolve, by bluntly reminding his colleagues that the sanctity of citizenship conferred upon ALL PERSONS who qualify to be admitted would now be finally enshrined in the tabernacle of the Constitution, well beyond the tentacles of the legislative power:

“We desired to put this question of citizenship and the rights of citizenship and freedmen beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by its roots and destroy it, and expose the freedmen again to the oppressions of their old masters.” (p. 2896, 3rd col.)

The ideal Citizenship Clause?
Of course, what all these niceties in his speech actually mean is that Senator Howard is proposing an amendment to the Constitution that defines what the IDEAL provisions of a clause on citizenship ought to be--a Citizenship Clause that recognizes in no uncertain terms ALL PERSONS to be regarded as citizens of the United States.

But does the draft he is offering provide the words that unequivocally confer the status of citizen of the United States upon “every other class of persons,” other than the class of persons born in the United States?

The legal community is clueless. Fact is, to claim or to even suggest that this “other class of persons” may exist at all is unthinkable (even idiotic?). But having been acknowledged likewise as citizens of the United States by the author, no less, this “other class of persons,” EVERY one or ALL of them, deserves to be looked into.

Viewing his speech as words that amplify the author’s intent, Senator Howard, surely, would have included the appropriate words in the draft he wrote to define clearly those who qualify to belong to what he refers to as “every other class of persons,” if only to justify his contention that the draft he fashioned “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

Let’s see if Senator Howard was able to achieve this passion for the IDEAL Citizenship Clause.

PART TWO

SUBJECT TO THE JURISDICTION OF THE UNITED STATESThis paper is an attempt to find and identify those who belong to the category of “every other class of persons,” Senator Howard speaks of in his speech, if at all there are; but if there really are such persons, let this paper become the initiator in helping to recognize this “other class” of the now-forgotten, even disowned, Fourteenth Amendment citizens of the United States.

AND SUBJECT TO THE JURISDICTION THEREOF
To verify if the draft Senator Howard proposed indeed “settles the great question of citizenship,” let’s take a closer look at what and how he wrote it, sans the words “or naturalized” (inserted a week later, after the debate) that the Senate approved on May 30, 1866:

“All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” (p. 2890, 2nd col.)

Sentence structure
Shorn of all modifiers, while leaving punctuation marks intact, Senator Howard’s draft would have simply read:

Persons born, and subject to, are citizens.

Analyzing its construction, the grammatical subject is “persons born, and subject to”; the predicate, “are citizens.” After eliminating the phrase “persons born,” what remains of the subject is the phrase between the pair of commas, “and subject to.”

Apparently, it is this phrase alone, “and subject to the jurisdiction thereof”--an element in the grammatical subject of his draft he deliberately enclosed within a pair of commas with--that Senator Howard would have relied on to convey his intention that the draft he offered “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

But does this phrase translate into or cover “every other class of persons” recognized and declared to be citizens of the United States at that time in 1866 “by virtue of natural law and national law,” other than the class of persons born in the United States?

Subject to their jurisdiction
A similar phrase worded as “subject to their jurisdiction” appears in the first post-Civil War amendment, the 13th, ratified barely six months earlier in December 1865:

“Neither slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction.”
Subject to
The phrase “subject to,” negatively phrase as “not subject to,” was earlier employed in the Civil Rights Act that the same 39th Congress passed on April 9, 1866, barely two months before the Citizenship Cause debate on May 30, 1866. President Johnson vetoed the act earlier, but Congress overrode it. The first line in Sec. 1 of the act reads:

"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."

Within its jurisdiction
The word “jurisdiction” in the phrase “within its jurisdiction” is also used in the penultimate line of Sec. 1 of the Fourteenth Amendment (the same section as the Citizenship Clause):

“nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.”
Evidently, the two phrases employed in the same section, “subject to the jurisdiction thereof” and “within its jurisdiction,” are not to be regarded as synonymous.

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.
Owing allegiance
During the debate, Judiciary Committee Chair Senator Lyman Trumbull (author of the Civil Rights Act) explains the meaning of “subject to the jurisdiction of the United States” in the context of the Clause:

"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' … 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 … for the very fact that we have treaty relations with them shows that they are not subject to our jurisdiction. We cannot make a treaty with ourselves; it would be absurd.” (p. 2893, 1st-2nd cols.)

Senator Trumbull later reiterates this meaning saying that Indians “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.” (p. 2894, col. 2)

Senator Howard further qualifies the word “jurisdiction”:

“I concur entirely with the honorable Senator from Illinois [Trumbull] in holding that the word 'jurisdiction,' as here employed, ought to be construed so as to imply the full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States." (p. 2895, 2nd col.)

Modifying phrase
The “stare decisis” reading of the Clause (as ratified) views the element between the commas, “and subject to the jurisdiction thereof,” as a “modifying phrase” of the element preceding it, “All persons born or naturalized in the United States.”

This interpretation comes from Justice Gray’s opinion in U.S. v. Wong Kim Ark (1898):

“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.”
Recognized exceptions
However, providing for what Justice Gray refers to as the “recognized exceptions”--exceptions, mind you, as old as the birthright rule itself--would be open to misinterpretation later. Thus, as to be expected, Chief Justice Fuller (Justice Harlan concurring) countered, dissenting:

“Was there any necessity of excepting them? And, if there were others described by the words, why should the language be construed to exclude them … They do not owe allegiance otherwise than to their own governments, and their children cannot be regarded as born within any other … There was no necessity as to them for the insertion of the words, although they were embraced by them."

Born subject to the jurisdiction
Earlier, Justice Gray also penned the majority opinion in Elk v Wilkins (1884), asserting that:

“Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof.”

This moved Justice Harlan to argue the view we regard as compelling, even in dissent:

“Our brethren, it seems, construe the Fourteenth Amendment as if it read: ‘All persons born subject to the jurisdiction of, or naturalized in, the United States are citizens of the United States and of the State wherein they reside;’ whereas the amendment, as it is, implies in respect of persons born in this country 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.”

So, mark this: To Justice Harlan, dissenting, persons acquire “national citizenship” NOT only AT BIRTH--“born in the United States”; but also AFTER BIRTH--“from and after the moment they become subject to the complete jurisdiction of the United States.”

Now, since under the Wong Kim Ark ruling, ONLY those “born in the United States” (“or naturalized,” added later after the debate), who, at the moment of nativity, are “subject to the jurisdiction thereof”--including even the now-controversial “ANCHOR BABIES” born on American soil of undocumented aliens--are to be regarded as citizens of the United States; this reading clearly contradicts what Senator Howard himself insisted that his draft “will include every other class of persons,” other than the “class of persons” born in the United States.

BY VIRTUE OF NATIONAL LAW
Senator Howard in his speech posits that the draft he offered “is simply declaratory of what I regard as the law of the land already … by virtue of … national law.”

But were there “other class of persons” already recognized and declared “by virtue of … national law” to be citizens of the United States at the time the Clause was debated in 1866?

The same 39th Congress enacted only a two months earlier a “national law,” the Civil Rights Act of 1866. But the citizenship provision in that Act was what Senator Howard was proposing to revise in his draft which, in fact, was the subject of the debate ongoing. Even then, the Act similarly declares what the Clause itself proclaims: “All persons born.”

Foreign-born Children of American Parents
In Wong Kim Ark, Chief Justice Fuller dissenting (with Justice Harlan concurring), identifies those belonging to a class of persons conferred citizenship (“natural-born” at that) “by virtue of … national law” in force in 1866--“the children of citizens of the United States who have been born abroad” or “born out of the limits and jurisdiction of the United States.”

At that time in 1866, a “national law,” the Naturalization Act of 1795 (repealing the first in 1790 and amended several times over until 1855), provided that: (1) “any alien, being a free white person, may be admitted to become a citizen of the United States”; and that (2) “the children of citizens of the United States born out of the limits and jurisdiction of the United States shall be considered as citizens of the United States.”

These foreign-born children (along with aliens naturalized) obviously qualify to belong to “every other class of persons”; for, to Chief Justice Fuller, “in all the acts from 1790 down”--such “national” laws Senator Howard refers to--they were already declared and recognized to be citizens of the United States at the time the Clause was enacted in 1866.

Chief Justice Fuller continues:

“[I]t 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.”
Children of American parents born abroad after 1868 “were and are aliens”
But to Chief Justice Fuller’s dismay:

“Thus the fourteenth amendment is held to be merely declaratory, except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond the control of the legislative power.

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

“In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this government. If not, and if the correct view is that they were aliens, but collectively naturalized under the acts of congress which recognized them as natural born, then those born since the fourteenth amendment are not citizens at all unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized 'in the United States.'”

To repeat for emphasis: To Chief Justice Fuller, under Wong Kim Ark, children of U.S. citizens born abroad since 1868 “WERE AND ARE ALIENS”; sadly, he adds, these foreign-born could only be “naturalized in the United States”--and could NOT possibly be “naturalized,” if they happen to be somewhere else--with the rather grim caveat that “no statutory provision to the contrary is of any force or effect,” including, of course, “all acts from 1790 down.”

And why should they not be regarded as “ALIENS”? The Clause after all is a constitutional mandate; and so, the “stare decisis” interpreting that mandate laid down in Wong Kim Ark--to the extent that ONLY those “born or naturalized in the United States,” and nowhere else, who must at the same time be “subject to the jurisdiction thereof,” are “citizens of the United States”--“puts that rule,” in the words of Chief Justice Fuller, “beyond the control of the legislative power.”

Children of American parents born abroad between 1802 and 1855 were aliens
Justice Gray in his majority opinion in Wong Kim Ark added a more disturbing note:

“In 1802, all former acts [of 1790 and of 1795] were repealed, and the provisions concerning children of citizens were re-enacted in this form ‘… the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.' Act April 14, 1802, c. 28, 4 (2 Stat. 155) …

“But the provision concerning foreign-born children, being expressly limited to the children of persons who then were or had been citizens, clearly did not include foreign-born children of any person who became a citizen since its enactment. 2 Kent, Comm. 52, 53; Binney, Alienigenae, 20, 25; 2 Am. Law Reg. 203, 205. Mr. Binney's paper, as he states in his preface, was printed by him in the hope that congress might supply this defect in our law.

“In accordance with his suggestions, it was enacted by the statute of February 10, 1855, c. 71, that 'persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.' 10 Stat. 604; Rev. St. 1993.

‘It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad, during that period, of American parents who had not become citizens of the United States before the act of 1802; and that the act of 1855, like every other act of congress upon the subject, has, by express proviso, restricted the right of citizenship, thereby conferred upon foreign-born children of American citizens, to those children themselves, unless they became residents of the United States.”
So, to Justice Gray, between 1802 and 1855, foreign-born children of American parents who had not become U.S. citizens before the act of 1802 were “ALIENS.”

Was this “defect in our law,” Justice Gray refers to, and its appalling consequences to foreign-born children of American parents, the “desideratum in the … legislation of this country” concerning “the great question of citizenship” Senator Howard cited in his speech?

What really bothered Chief Justice Fuller was the manner in which foreign-born children of American parents were shabbily treated as “ALIENS,” when he compared them with “children who are aliens by descent, but born on our soil [who] are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court” and “eligible to the presidency, while children of our citizens, born abroad, were not.”

So, 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 generally accepted exceptions as old as the rule itself?

Is Senator John McCain “born abroad” a statutory or naturalized citizen?
Now, adopting Chief Justice Fuller’s argument in dissent and the gist of Justice Gray’s opinion, both in Wong Kim Ark, would presidential aspirant Senator John McCain “born abroad” or “born out of the limits and jurisdiction of the United States” in the “unincorporated” U.S. territory of Panama Canal Zone--even of American parents--qualify as a Fourteenth amendment “natural-born” citizen under the official and judicial reading of the Clause today? Or is he a statutory or naturalized citizen? Senator Hillary Clinton would certainly be amused to know.

Note that 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, persons born “abroad” of American parents as ruled in Rogers v. Bellei, are “not born” or are “not naturalized” IN THE UNITED STATES.

If, indeed, the phraseology of the Clause under Wong Kim Ark was intended NOT to include the citizenship of foreign-born children of American parents (not to mention aliens naturalized) who were already recognized “by virtue of national law” as citizens of the United States as far back as the act of 1790 yet, what OTHER “national law” on citizenship was in force then and regarded as “the law of the land already” in 1866, was Senator Howard referring to in his speech, the provisions of which his draft “is simply declaratory of”?

Aliens Naturalized
To recall, Senator Howard’s draft--that was debated and approved by the Senate--did not include the words “or naturalized.” But his omission of these words does not necessarily imply that aliens “naturalized” are excluded from among those who belong to the class of persons who are NOT “born in the United States” Senator Howard describes as “every other class of persons” to be recognized likewise as “citizens of the United States.”

Rather, aliens “naturalized” certainly qualify to be included; for, as already cited earlier here, the Naturalization Act of 1795--a “national law” in force in 1866 Senator Howard speaks of--already stipulated:

“That any alien, being a free white person, may be admitted to become a citizen of the United States …”
Naturalization Clause modified
As discussed earlier here, Chief Justice Fuller, dissenting in Wong Kim Ark, asserted that those “born abroad” of American parents could acquire citizenship only “by naturalization in the United States”--and nowhere else--and even warned that “no statutory provision to the contrary is of any force or effect.”

The Constitution provides:

“The Congress shall have the Power … [t]o establish an uniform law of Naturalization.”
Justice Fuller’s view is that, this authority embodied in the original 1787 U.S. Constitution was no doubt modified by the Fourteenth Amendment ratified 80 years later in 1868 by the inclusion of the words “or naturalized” in the Citizenship Clause, restricting its application to persons (specifically to “aliens”) ONLY “in the United States” at the time of their application for naturalization--and nowhere else--for the pertinent line reads:

“All persons … naturalized in the United States, and subject to the jurisdiction thereof.”

Conjunction “or” joins the words “born” and “naturalized”
As worded in the Clause, the conjunction “or,” defined as “introducing the second of two alternatives,” in the phrase “born or naturalized in the United States,” joins together the word “born” with the alternative, “naturalized”; and the phrase “in the United States” is the determinant for both alternatives, (1) “born” and (2) “naturalized.”

Hence, to Chief Justice Fuller, “citizens of the United States’ are “persons” who are (1) “born … in the United States” and “persons” who are (2) “naturalized in the United States” and NOT anywhere else, other than ONLY “in the United States,” the determinant.

So, were the words “or naturalized” inserted more as an afterthought out of abundant caution, or were they inserted to restrict the power of naturalization only to persons already “in the United States” and NOT to persons anywhere else?

BY VIRTUE OF NATURAL LAW
Senator Howard in his speech contends further that his draft likewise recognizes the citizenship persons acquire “by virtue of natural law” which, again, “is simply declaratory of what I regard as the law of the land already.”

But what “natural law” is Senator Howard talking about?

A seminal paper Polly J. Price wrote on "the natural law origins of birthright citizenship in the common law" explores “Calvin's Case (1608) and the early modern common-law mind that first articulated a theoretical basis for territorial birthright citizenship” (Natural Law and Birthright Citizenship in Calvin’s Case, 9 Yale J.L. & Human. 73, 82, 1997), and to quote in part the paper’s introduction:

Birth within the realm and within the allegiance
“The roots of United States conceptions of birthright citizenship lie deep in England's medieval past. This Article explores Calvin's Case (1608) and the early modern common-law mind that first articulated a theoretical basis for territorial birthright citizenship. Involving all the important English judges of the day, Calvin's Case addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered "subjects" in England. Calvin's Case determined that all persons born within any territory held by the King of England were to enjoy the benefits of English law as subjects of the King. A person born within the King's dominion owed allegiance to the sovereign and in turn was entitled to the King's protection. Calvin's Case is the earliest, most influential theoretical articulation by an English court of what came to be the common-law rule that a person's status was vested at birth, and based upon place of birth. In the view of Sir Edward Coke, one of the judges deciding Calvin's Case, the court's determination was required by the divine law of nature, which was "indeed … the eternal law of the Creator" and "part of the law of England.

“Coke's report of Calvin's Case was one of the most important English common- law decisions adopted by courts in the early history of the United States. Rules of citizenship derived from Calvin's Case became the basis of the American common-law rule of birthright citizenship, a rule that was later embodied in the Fourteenth Amendment of the U.S. Constitution and which is now the subject of heated political and legal debate. Remarkably, the rule of birthright citizenship derived from Calvin's Case remained a status conferred by the common law, as opposed to statutory or constitutional law, for centuries …”

Justice Gray in Wong Kim Ark, restates the “fundamental principle” prevailing:

“The fundamental principle of the common law with regard to English nationality was birth within the allegiance--also called 'ligealty,' 'obedience,' 'faith,' or 'power'--of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual …”

He continues and refers to Calvin’s Case (1608), the case controlling, Polly J. Price also cited:

“This fundamental principle, with these qualifications or explanations of it, was clearly. though quaintly, stated in the leading case known as 'Calvin's Case,' or the 'Case of the 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 footnote citing the principle Calvin’s Case laid down:

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

Justice Gray concludes:

“The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.”
Birthright of the Natural-born under Natural Law
Hence, “by virtue of natural law,” the mere circumstance of being “born in the United States,” unarguably a “class” by itself, already qualifies a person--ANCHOR BABIES included--to be regarded as a “natural-born” citizen of the United States, irrespective of parentage, race, color, creed or purse. It is the birthright under “jus soli” that “all persons” born “within the realm” is entitled to assert and enjoy, with all its attendant rights, privileges and immunities.

Reciprocal Duty of Obedience and Allegiance
Yet, reciprocally in return--mandated by the same “natural law”--that accident of birth obligates the person so born to owe full and complete “obedience and allegiance” to the United States, alone and to no other, with all the duties and obligations a citizen is mandated to perform by law and to bear arms in the service of the nation, and be willing to sacrifice life and fortune, to defend the Flag and preserve the Constitution of the United States, unqualifiedly in war and in peace.

So, what the “natural law” has decreed, the Citizenship Clause proclaims--“All persons born.” But “what makes the subject born”? It is, to Sir Edward Coke, “the divine law of nature,” “the eternal law of the Creator”: “Neither the climate nor the soil but obedience and allegiance.”

Sadly, it is this Duty and Obligation of Obedience and Allegiance to the United States that NATURAL LAW imposes upon the natural-born, or “persons born in the United States,” that seems to have been conveniently forgotten in the debate over ANCHOR BABIES which is unfairly centered more on the birthright benefits the person born of “undocumented aliens” is entitled to enjoy reciprocally in return.

District of Columbia and Territories
There is another “class of persons” falling under the criteria of “natural law.” What about those born or residing “in the District of Columbia or in the Territories” situated outside of the FIFTY States “in the United States,” including the inhabitants of ceded territory at the time of annexation (over whom the United States now exercises the rights of sovereignty and jurisdiction), particularly their children, born later, who are already “within the realm and within the allegiance”? Do they qualify or become obligated to belong to Senator Howard’s category of “every other class of persons” his draft recognizes likewise as citizens of the United States?

In1872, four years after the ratification of the Fourteenth in 1868, the U.S. Supreme Court handed down its first ruling on the Citizenship Clause in the Slaughter-House Cases, and said:

“The purpose is manifest, to establish through the whole jurisdiction of the United States ONE PEOPLE … 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 ... It is an act of Union … Under it the fact of citizenship does not depend upon parentage, family, nor upon the historical division of the land into separate States, some of whom had a glorious history, of which its members were justly proud.”
Justice Miller in Slaughterhouse goes on to highlight the diversity of opinions concerning the status of persons in “the District of Columbia or in the Territories” at the time the Clause was debated in 1866:

“It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided … [but the Clause] “puts at rest both the questions which we stated to have been the subject of differences of opinion.”

Justice Bradley, dissenting in Wong Kim Ark, argued the same view Justice Miller articulated:

“The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country; and that State citizenship is secondary and derivative … Inhabitants of Federal territories and new citizens by annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, as citizens of the United States, lay claim to every one of the privileges and immunities which have been enumerated …”

Persons everywhere
Senator Trumbull during the debate delineated the extent of the reach of the Clause as “everywhere” (comparable to “any place” in the phraseology of the Thirteenth), so long as that person remains “subject to the jurisdiction of the United States,” and to quote:

"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." (p. 2894, 1st col.)

Senator Trumbull’s clarification merely affirms what Rep. James Falconer Wilson, Chair of the House Judiciary Committee, said during the Civil Rights Act debate two months earlier, quoting William Rawle, “A View of the Constitution of the United States of America” (1829) at page 80, “whose constitutional law treatise was one of the most widely respected antebellum works”:

“Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen of the United States in the sense of the Constitution.” (p. 1115, 3rd col., March 01, 1866)

Earlier during the House debate, Rep. Wilson also cites Sharwood's Blackstone, Vol. 1, p. 364 (1765) to confirm the tie between “natural-born subjects” and “allegiance” in “natural law”:

"Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance of the King; and aliens are such as are born out of it."
Rep. Wilson concludes by stating that the status of a ”natural-born” as derived from “natural law,” became the “national law” (p. 1115, 3rd col., March 01, 1866):

"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."

In short, under “natural law,” persons born or residing “within the realm and within the allegiance” or “those who had been born and resided always in the District of Columbia or in the Territories” are to be regarded as “natural-born” citizens of the United States, particularly “inhabitants of Federal territories and new citizens by annexation of territory … though without any status as citizens of a State.”

Hence, to the Court, “by virtue of natural law,” under the Clause Senator Howard drafted: “Citizenship of the United States is the primary citizenship … State citizenship is secondary and derivative”; a person may be a citizen of the United States without being a citizen of a State. More importantly, citizenship does not anymore depend upon “the historical division of the land into separate States.”

Unincorporated territory
However, persons born in Puerto Rico and Guam, territories ceded under the 1898 Treaty of Paris, “appurtenant and belonging to the United States, but not a part of the United States” (being “unincorporated” under the Doctrine of Incorporated Territory the myth of the Insular Cases enunciated) are deemed merely as second-class “statutory,” NOT “Fourteenth Amendment,” citizens of the United States, a “U.S. citizenship” the Congress--it is claimed--may confer by “collective naturalization” (inexplicably, even “at birth”?) and may unilaterally revoke at its pleasure.

As already discussed earlier, the conjunction “or” joins together the word “born” with the alternative, “naturalized”; and the phrase “in the United States” is the determinant for both alternatives, (1) “born” and (2) “naturalized.”

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

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

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

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

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

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

Can the power to naturalize apply to persons at birth?
The U.S. Code defines the term “naturalization” to mean “the conferring of nationality of a state upon a person after birth, by any means whatsoever.”

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

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

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

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

“All persons born in Puerto Rico on or after April 11, 1899 … subject to the jurisdiction of the United States … are hereby declared to be citizens of the United States.”

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

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

Upon reading these provisions (even assuming that these persons are “in the United States”), we were stunned, speechless; so, we prefer not to comment, other than to underscore the phrase “All persons born” in the cited provisions above in relation to the legal definition of “naturalization”--conferred ONLY “after birth”--for your scrutiny.

So, it is evident that the phrase, “and subject to the jurisdiction thereof,” in Senator Howard’s draft of the Clause as intended include, “by virtue of natural law,” the “class of persons” born or residing “within the realm and within the allegiance” or “those who had been born and resided always in the District of Columbia or in the Territories.”

PART THREE

A PAIR OF COMMAS AND AN ELLIPTICAL PHRASE
A different reading of the Clause is argued below, hopeful that it will heighten interest on that “class” of the unrecognized, the now-forgotten, disowned citizens of the United States.

So, what is in the phraseology of his draft, particularly in the phrase “and subject to the jurisdiction thereof” that Senator Howard felt so confident about, prompting him at the end of his speech to boldly proclaim that his draft “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States [which] has long been a great desideratum in the jurisprudence and legislation of this country”? (p. 2890, 2nd col.)

PAIR OF COMMAS ENCLOSES A “NON-RESTRICTIVE” PHRASE
What if the Key to resolve these lingering contradictions concerning the author’s intent lies, not in analyzing the meaning of the few simple unambiguous words he wrote (that legal scholars have already fine-combed), but in the crucial, yet overlooked, PAIR OF COMMAS Senator Howard deliberately enclosed the words “and subject to the jurisdiction thereof” with?

Restrictive and non-restrictive
The relevant punctuation rule in English Grammar says: “if it can be omitted,” which means that the element is “non-restrictive, it can be set off by commas”; if not, which means that the element is “restrictive, it should not be set off by the comma.”

This rule appears in the New Handbook of Composition (1926) by Woolley (used as text by the pre-war Cebu Normal School): “Rule 223, (b) A non-restrictive phrase following its principal should be set off by the comma; a restrictive phrase following its principal should not be set off by the comma.”

In placing the first comma before the coordinator “and,” the rule laid down in The Elements of Style by Strunk (1918) applies: “If a parenthetic [or non-restrictive] expression is preceded by a conjunction,” the rule is “place the first comma before the conjunction, not after it.”

And, in the case of the second comma placed before the linking verb “are,” “Grammar English's Famous Rule of Punctuation” is: “Never use only one comma between a subject and its verb.”

It is pertinent to mention that there is a distinct punctuation mark, known as: comma-plus-coordinating-conjunction-“and.” Robert Brittain [sic] defines this mark in Correct Punctuation (1981) as “a single mark composed of two symbols, one of which we normally think of as a punctuation mark and the other as a word symbol.”

Can the Rule of law ignore these accepted rules of English grammar?

Commas in a similar but “restrictive” provision in Civil Rights Act of 1866 omitted
Assuredly, this trifle concern for a pair of commas is not just nit-picking. A similar clause in the 1866 Civil Rights Act (which was enacted only two months earlier by the same 39th Congress) OMITS the pair of commas, particularly the comma placed before the coordinator “and”--

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

NOTE: Text quoted above is taken from the scanned printed original copy of S. 61 (Civil Rights Act), Bills and Resolutions, Senate, 39th Congress, 1st Session, March 13, 1866.

By omitting the comma before the coordinator “and,” the author of the Act (Senator Lyman Trumbull) is conveying the intention that the phrase "not subject to any foreign power" is "restrictive," which means that, grammatically understood, it is intended to modify, qualify or restrict the phrase preceding it, "All persons born in the United States." And this, in fact, was how it was read and understood to mean, even to this day--as a “modifying phrase.”

Current official and judicial reading disregards pair of commas
Now compare the grammatical structure in the subject of the provisions quoted below, and notice the disparity between the two, involving the comma and the coordinating conjunction “and”:

“All persons born in the United States and not subject to any foreign power”-- Civil Rights Act

“All persons born in the United States, and subject to the jurisdiction thereof”-- Howard Draft

In the Act, the comma is omitted before the coordinator “and”; while in the draft, a comma is inserted. If a comma is omitted in one and inserted in the other, why should BOTH phrases be read similarly as a “modifying phrase,” grammar rules to the contrary, of the element preceding?

If Senator Howard really intended the phrase “and subject to the jurisdiction thereof” to modify “All persons born in the United States,” he could have simply followed what the same 39th Congress did only two months earlier in the Civil Rights Act--omit the commas; but he did not; Senator Howard instead opted to insert the commas (doubtless, deliberately, since the easier option was to omit--or not to insert--to achieve what he meant to convey, if indeed it was).

In any case, since it was the same 39th Congress and its Committee on Style that edited these similarly-phrased provisions, would they have applied the same rule selectively, arbitrarily?

Thus, it is reasonable to assume that the elementary English grammar rule on punctuation cited was made to apply consistently to both the similar subject in the Act and in the draft; likewise, it is reasonable to argue the contrary view that, precisely to avoid the confusion of being mistaken later as a “modifying phrase” (now officially and judicially read as such), Senator Howard employed the pair of commas to differentiate, grammatically, the “non-restrictive” phrase “and subject to the jurisdiction thereof” from the “restrictive” phrase, “and not subject to any foreign power,” used in the Act that, to recall, the same 39th Congress enacted just two months earlier.

NOTE: The phrase does not qualify to be regarded as an “appositive,” since the term means “a noun, noun phrase, or noun clause which follows a noun or pronoun and renames or describes the noun or pronoun.” But even as an “appositive,” it is still a “non-restrictive appositive.”

COORDINATOR “AND” CREATES A COMPOUND
Then, there is the coordinating conjunction “and,” which, as defined, connects “words, phrases or clauses that are of equal importance or have the same grammatical structure within a sentence.” In particular, a “compound subject” is defined as “two or more noun phrases (and their modifiers, if any) joined together with a coordinating conjunction.”

So, by placing the first comma before the coordinator “and” and inserting the second before the linking verb “are,” effectively enclosing the phrase “and subject to the jurisdiction thereof,” Senator Howard is conveying, grammatically, the intention that his draft consists of a “compound subject” conjoined by the coordinator “and,” with a common predicate, depicted as--

First Subject: “All persons born in the United States,” and

Second Subject: “subject to the jurisdiction thereof”

“AND SUBJECT TO THE JURISDICTION THEREOF”--AN ELLIPTICAL
But why is the main noun (or pronoun) in the Second Subject missing?

There is actually none to speak of. But if--as now assumed--the phrase, “and subject to the jurisdiction thereof,” is the second subject of a compound; then, it is doubtless structured as an “elliptical,” defined as “grammatical structures that omit words that they would usually include.” The “missing subject of the elliptical clause should always be the same as the explicit subject of the main clause.”

Having been joined together by the coordinating conjunction “and,” the compound subject of the Clause is in a “coordinate configuration”; hence, the unexpressed element, or the main noun “missing,” in one subject of the compound is meant to be understood, rather than to be stated or repeated--recoverable or inferable from the context of the other subject it is coordinate with.

The “missing” main noun between the words “and” and “subject to” in the Second subject, “and subject to the jurisdiction thereof,” should thus be the same as the “explicit” main noun of the First subject, “All persons born in the United States,” which is “All persons,” acting as the antecedent, common to both the two subjects in “coordinate configuration” in the compound.

Thus, as an elliptical, Senator Howard omits the main noun phrase, “all persons,” in the Second subject to be understood rather than to be stated or repeated, for brevity or style, inferable from the “explicit” subject in the First. Thus, the complete construction Senator Howard intended the elliptical Second subject to convey is:

“and [all persons] subject to the jurisdiction thereof”

Senator Howard, of course, could have avoided using the elliptical structure for the Second subject of the compound, by instead availing of the applicable plural pronoun, “those,” which is the antecedent of the “explicit” main noun phrase in the subject of the First Category, “All persons,” to read: “and those subject to the jurisdiction thereof.” But the word, “those,” is a vague indefinite pronoun, which Senator Howard understandably refrained from employing, since indefinite pronouns are inappropriate in formal or legal writing.

The other elliptical conveying the other compound
As if to emphasize the author’s reliance on the grammatical device of an elliptical (to those who may be reluctant to concede the elliptical later) as the means to convey his intent in describing a compound in “coordinate configuration,” there is this second elliptical Senator Howard used in structuring the other compound, the COMPOUND OBJECT of the linking verb “are”--

First Object: “citizens of the United States”

Second Object: and [citizens] of the State wherein they reside”

Here, similarly structured as an elliptical, Senator Howard omits the Second object of the compound, “citizens,” common to both, which is the “explicit” object of the First, also joined together by the coordinator “and,” to be understood rather than to be stated or repeated.

Apparently, the use of the elliptical in the compound object of the linking verb “are” satisfies the very same purpose--brevity or style--that motivated Senator Howard’s use of the elliptical to convey his intent in the Second of the compound subject of the Clause discussed earlier.

Thus, the complete construction that Senator Howard intended his draft to convey is:

“All persons born in the United States, and [all persons] subject to the jurisdiction of the United States [from “thereof”], are citizens of the United States and [citizens] of the State wherein they reside.”
And the complete construction of the TWO categories of U.S. citizens Senator Howard’s compound subject with a common predicate was purposely intended to create are:

First Category: “All persons born in the United States are citizens of the United States and [citizens] of the State wherein they reside.”

Second Category: “[All persons] subject to the jurisdiction of the United States [from “thereof”] are citizens of the United States and [citizens] of the State wherein they reside.”

Grammatically read as intended, therefore, the phrase “and subject to the jurisdiction thereof, contrary to the official and judicial reading, is NOT to be viewed as a “modifying phrase,” but is worded instead to represent a SECOND Category to account for those who belong to “every other class of persons,” confirming what Senator Howard said his draft was meant to recognize.

DEBATE TRANSCRIPTS AFFIRM A SECOND CATEGORY
But was it really Senator Howard’s intention to word the phrase, “subject to the jurisdiction thereof,” to function as the elliptical for the complete construction, “all persons subject to the jurisdiction of the United States,” an elliptical that would define the other category he refers to as “every other class of persons” and not as a “modifying phrase” as officially and judicially read?

“Excluding Indians not taxed”- Senator Doolittle’s proposal to insert
Note it well in this regard that the eight (3-column) pages in the Congressional Globe of the Senate debate on the Citizenship Clause were focused solely on the proposal Senator James Doolittle raised "to amend” Senator Howard’s draft “by inserting after the word 'thereof' the words 'excluding Indians not taxed'" (p. 2890, 3rd col.), to read:

“All persons born in the United State, and subject to the jurisdiction thereof, excluding Indians not taxed”
The official and judicial reading of the Clause, to repeat, assumes the view that the subject, “All persons born,” is modified by “subject to the jurisdiction thereof,” a circumstance which may be regarded as the “First Qualifier” a person must fulfill or possess to acquire the status AT BIRTH. So, upon this assumption, Senator Doolittle’s proposal to insert the phrase, “excluding Indians not taxed,” in Senator Howard’s draft should likewise be regarded as another modifier of the same Subject, call it the “Second Qualifier,” required to acquire that same status AT BIRTH.

But a thorough reading of the Congressional Globe debate transcripts fails utterly to validate the assumption that the phrase “subject to the jurisdiction thereof” is a “modifying phrase of “all persons born”--the status AT BIRTH. Rather, in explaining the reason behind his amendment, Senator Doolittle treats the phrase “subject to the jurisdiction thereof,” not as a qualifier to “all persons born,” but as a separate SECOND CATEGORY of “citizens of the United States”--

“I moved this amendment because it seems to me very clear that 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. All the Indians upon reservations within the several States are most clearly subject to our jurisdiction, both civil and military.” (p. 2892, 3rd col.)

Senator Doolittle consistently restates the question along that line later during the debate:

"My friend from Michigan will not contend that an Indian can be taxed if he is not subject to the State or to the United States; and yet if they are subject to the jurisdiction of the United States they are regarded by the very language of this amendment to be citizens … Why, sir, what does it mean when you say that a people are subject to the jurisdiction of the United States." (p. 2896, 1st col.)

Senator Doolittle DIRECTLY QUOTES the complete construction of the elliptical
Finally, at page 2897, 1st col. is Senator Doolittle's long-overlooked reason behind his concern regarding "the very language" Senator Howard employed in quoting what is undoubtedly the now-forgotten, still-unrecognized SECOND CATEGORY of “citizens of the United States”:

"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."

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To repeat, for emphasis: “All persons subject to the jurisdiction of the United States”

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Is this not the same complete construction of the elliptical SECOND SUBJECT, “subject to the jurisdiction thereof,” that was arrived at after a detailed grammatical analysis of the draft earlier above? Is this not a confirmation of a SECOND CATEGORY of citizens of the United States the Clause is intended to recognize and confer?

Quotation marks
What is interesting to underscore is that the phrase “all persons subject to the jurisdiction of the United States” Senator Doolittle cited in the remarks above as “the language he [Senator Howard, the author] uses” appears remarkably in the internet-accessible scanned original 1866 copy of the Congressional Globe page PRINTED in “QUOTATION MARKS.”

What this reveals, no doubt, is that the phrase Senator Doolittle directly cited that appears printed in “quotation marks” in the Congressional Globe was precisely what he, along with the author, Senator Howard, and the 39th Congress for that matter, understood the quoted line to mean at the time it was spoken, and that is, the complete construction for the elliptical used in the draft.

Otherwise, Senator Dollittle’s “quote” and “unquote” instructions to the stenographers to enclose the phrase with during the debate would have been disputed by Senator Howard himself. But the records will show, that “the language he [Senator Howard] uses, “All persons subject to the jurisdiction of the United States” Senator Doolittle directly quoted was accepted, unchallenged.

A SECOND category in the Clause for “every other class of persons”
Thus, without intending disrespect, the official and judicial view of the Citizenship Clause is dead wrong--A MONUMENTAL READING ERROR!

For contrary to what is now the “stare decisis” reading of the Clause, the phrase “and subject to the jurisdiction thereof” does NOT act as a “modifying phrase” of the element preceding it, “All persons born or naturalized in the United States.”

Rather, read grammatically as Senator Howard intended it to convey, the phrase represents a still unrecognized SECOND Category of citizens of the United States to account for those who belong to “every other class of persons,” his draft was conceived to embrace and recognize, and to repeat what he said in his sponsorship speech:

“This amendment I have offered is simply declaratory of what I regard as the law of the land already … by virtue of natural law and national law … This wil … include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a desideratum in the jurisprudence and legislation of this country.” (p. 2890, 2nd col.)

To his credit, this concept of a SECOND category, indeed, “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

PART FOUR

A SECOND CATEGORY
So, there is, after all, a SECOND category of citizens of the United States--“all persons subject to the jurisdiction of the United States,” which is the complete construction for the elliptical Senator Howard employed in his draft, “subject to the jurisdiction thereof.”

NO TERRITORIAL RESTRICTION
As distinguished from the First, “born in the United States,” which identifies a place, “in the United States,” the Second category does not refer to a named or described place or location where persons “subject to the jurisdiction of the United States” are required either to be born or to reside in.

Nor does the Second category specify, much less imply, any such place, district or territory (for there is none to speak of) Congress or the Court may define as “appurtenant and belonging to the United States, but not a part of the United States” (Insular Cases), “organized,” “incorporated,” “ceded,” “annexed,” “contiguous,” “insular,” “occupied,” or any other relevant or synonymous term, which is to be regarded as the determinant place of birth or residence in order to qualify.

Rather, irrespective of territory, district, place or location, it is the PERSON and the circumstance of being “subject to the jurisdiction of the United States,” from and after the moment, that alone matters to qualify under the Second category as a “citizen of the United States.”

Slavery in the territories
In the context of History, what must be emphasized is that slavery in the territories was the main reason behind why the Citizenship Clause in the Fourteenth Amendment was conceived, following the bloody American Civil War.

Abolition of slavery and protection of inhabitants in the territories were important issues. 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.”

Dred Scott was about the ban on slavery in the territories and the citizenship of black Americans.

The historical background of the 13th and 14th Amendments show clearly that concern for the Rights of Freedmen and inhabitants 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,” in addition to that or those “in the United States.”

The 12 organized territories awaiting statehood
Aside from the District of Columbia (NOT a State but carved from, and ceded by, the States of Virginia and Maryland), enumerated below are the respective dates of admission (chronologically) of the territories as a state and their respective dates of creation into an Organized Territory earlier:

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.

U.S. citizenship to be conferred upon persons born or residing in these territories were obviously what was utmost in the minds of Senator Howard and the 39th Congress.

AT BIRTH OR AFTER BIRTH
Not only that, the Second category confers U.S. citizenship upon persons not only AT BIRTH, as in the First Category (persons “born”), but also AFTER BIRTH, as in persons “naturalized,” and, using Justice Harlan’s words dissenting in Elk v. Wilkins, “from and after the moment they become subject to the complete jurisdiction of the United States” or quoting Senator Trumbull’s definition during the debate, “owe allegiance” thereto.

WHO AND WHERE ARE THEY?
The following “persons” acquire citizenship of the United States under the SECOND category at birth or after birth from and after the moment they become “subject to the jurisdiction of the United States” or “owe allegiance to the United States,”--irrespective of where they are born or residing:

Acquisition of U.S. citizenship at birth (Natural-born)

01. Children of U.S. citizens (including female U.S. citizens married to a foreigner) born abroad.

02. Persons born in ceded or annexed territory over which the United States exercises the rights of sovereignty and jurisdiction from the time of formal territorial cession or acquisition.

Acquisition of U.S. citizenship after Birth (Naturalization)

01. Inhabitants and aliens residing in ceded or annexed territory by “collective naturalization” from and after the moment the United States exercises the rights of sovereignty and jurisdiction who opt to renounce (rather than preserve) their allegiance to the previous sovereign.

02. Aliens naturalized--but only those “naturalized in,” not outside of, “the United States” owing to the insertion of the words “or naturalized” after the word “born” in the Clause as ratified with the determinant phrase “in the United States,” common to both.

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

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

FOURTEENTH: The benefits, privileges and immunities U.S. Citizenship confers upon PERSONS:

(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof"

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

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

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

On the contrary, read grammatically as intended by Senator Howard, the Clause imposes NO “limitation.” 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.

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

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

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

“The attitude of Chief Justice Fuller and Mr. Justice Harlan [in Wong Kim Artk] was that at common law the children of our citizens born abroad were always natural-born citizens from the standpoint of this government, and that to that extent the jus sanguinis obtained here.”
In William Blackstone, Commentaries (1765), the “jus sanguinis” aspect in English Common Law was also recognized:

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

Recognizing the application of “jus sanguinis” in the Second category is still consistent with Senator Howard’s declaration that his draft “will include every other class of persons.”

NOTE C: ON COLLECTIVE NATURALIZATION
During the debate, Senator Trumbull emphasized that:

"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." (p. 2893 (2nd and 3rd cols.)

Justice Harlan, dissenting in Elk v. Wilkins and echoing Senator Trumbull's remarks above, asserted the view (a view we cited earlier here as compelling, which we now regard, of course, as his recognition of a SECOND category as early as 1884 yet) that: "Our brethren, it seems to us, construe the fourteenth amendment as if it read: 'All persons born subject to the jurisdiction'"; rather, "national citizenship," he continues, is conferred not only upon those "born in the United States," but also upon those "from and after the moment they become subject to the complete jurisdiction of the United States."

Senator Trumbull and Justice Harlan surely do NOT speak of persons born or AT BIRTH; they refer instead to persons already born or AFTER BIRTH "who come completely within our jurisdiction" or those "brought under our jurisdiction."

In fact, Senator Howard mentions the term "naturalization" several times during the debate in the course of objecting to Senator Doolittle's proposal to insert the words, "excluding Indians not taxed," in his draft, in this context:

"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.”(p. 2895, 2nd col.)

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.”(p. 2895, 2nd col.)

As already cited earlier here, the United States Code defines the term “naturalization” to mean "the conferring of nationality of a state upon a person after birth, by any means whatsoever.” Once again, kindly take note of the keywords "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.”

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 under Wong Kim Ark, must at the moment of their BIRTH, be (1) “subject to the jurisdiction thereof” (as a "modifying phrase") and, had Senator Doolittle’s amendment been accepted, (2) “excluding Indians not taxed” (as the second "modifying phrase")?

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 conferring citizenship AT BIRTH and AFTER BIRTH.

Take note that the phrase, "excluding Indians not taxed," was also inserted in the Civil Rights Act that the same 39th Congress passed only two months earlier. Senators Howard and Trumbull (the author of the Act), voted for its inclusion, since the phrase, as employed--without the comma before the conjunction "and"--qualified the element preceding it, "All persons born in the United States and not subject to any foreign power."

In short, Senator Doolittle’s proposal was directed at qualifying the SECOND category--and NOT the FIRST, as in the Civil Rights Act--to the effect that “all persons subject to the jurisdiction of the United States” must exclude “Indians not taxed.” Senators Howard and Trumbull naturally objected; for Indians by TREATY were never regarded as having been "born in the United States," nor were they considered at that time in 1866 to be fully and completely “subject to the jurisdiction of the United States.”

Moreover, the "Collective Naturalization" authorized under the SECOND category may now be regarded as intended to avoid the difficulty 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 not only the “antenati,” but the “post nati” as well--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.”

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

Under the SECOND category of the Clause, however, both the “post nati” and the “antenati” acquire citizenship of the United States from and after the moment they become AT BIRTH or AFTER BIRTH “subject to the jurisdiction of the United States.”

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). For, upon the moment of cession, the inhabitants of these territories (those already “born”) and those born later become “subject to the jurisdiction of the United States” and hence qualify under the SECOND category to be conferred the status of citizens of the United States.

Sadly. as interpreted under the stare decisis of the Insular Cases, Senator Howard should have rephrased the Citizen Clause as if it read:

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

NOTE D: ON ALLEGIANCE AND OBEDIENCE
In light of all that has been discussed, together with Senator Howard’s phraseology and Senator Trumbull’s clarification of the intent of the rule “in force” laid down under “this fundamental principle,” the single, most important characteristic that distinguishes a “citizen of the United States,” who is a person “subject to the jurisdiction of the United States,” from that of an “alien,” is ALLEGIANCE to the United States.

Defined, ALLEGIANCE is the obligation of loyalty owed to one’s country; OBEDIENCE is the willingness to comply with the laws and the Constitution of that country.

And it is both the permanent OBEDIENCE to the laws of, and the ALLEGIANCE owed to, the United States that defines a “citizen of the United States,” a person “subject to the jurisdiction thereof,” that distinguishes the temporary or “local” OBEDIENCE of an “alien” to the laws of the United States while temporarily “under” or “within the jurisdiction of the United States,” who remains “subject to a foreign power” and owes permanent OBEDIENCE and ALLEGIANCE to that “foreign power.”

Thus, both OBEDIENCE and ALLEGIANCE makes a person a “citizen.”

Allegiance and citizenship
This concept of citizenship that Senator Howard crafted, recognizing TWO categories of “citizens of the United States,” is doubtless consistent with the prevailing common-law principles the 39th Congress endeavored to uphold in the Citizenship Clause it enacted:

01. “Birth within the realm and within the allegiance.”

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

These are, of course, the same principles Senator Trumbull relied on in his definition of the phrase quoted earlier here:

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

For ALLEGIANCE owed, to Polly J. Price in her paper, is the “eternal Law of the Creator,” the “immutable Divine Law of Nature.”

The IDEAL Citizenship Clause
Actually, the Ideal Citizenship Clause that Senator Howard was aspiring to create would have been readily conveyed as precisely as the very words he framed to define the SECOND category with--

ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES ARE CITIZENS OF THE UNITED STATES AND OF THE STATE WHEREIN THEY RESIDE.

Why? The SECOND already includes the FIRST category, since “All persons born or naturalized in the United States” (First) are also unarguably persons “subject to the jurisdiction of the United States” (Second) or owe allegiance thereto, particularly those “naturalized,” since they are required to take the Oath of Allegiance before they can be admitted to be citizens of the United States.

In fact, this explains the reason why Senator Howard omitted the words “or naturalized” in his draft, for its inclusion would have provoked a REDUNDANCY; however, as already noted earlier here, the insertion of these words in his draft a week later was intended to modify the Naturalization Clause in order to restrict its application solely to persons “in the United States” and exclude persons “outside of the limits and jurisdiction of the United States” as suggested by Chief Justice Fuller, dissenting in Wong Kim Ark.

So, the Second category of “persons subject to the jurisdiction of the United States”--“from and after the moment” at birth or after birth--resolves the lingering contradictions engendered by the current misreading, officially and judicially, of the Clause, for it undoubtedly embraces the category Senator Howard refers to in his sponsorship speech as “every other class of persons.”

That ends our discussion of the intent of the Citizenship Clause as framed by its author, Senator Jacob Merritt Howard, and approved by the 39th Congress on May 30, 1866.

The next part is a discussion of the applicability of the Citizenship Clause to TERRITORIAL FILIPINOS, “persons subject to the jurisdiction of the United States.”