PART TWO: TERRITORIAL FILIPINOS

NATURAL-BORN CITIZENS OF THE UNITED STATES

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

“The Philippines thereby ceased, in the language of the treaty, 'to be Spanish.' Ceasing to be Spanish, they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection.”--The Diamond Rings, 183 U.S. 176 (1901), Chief Justice Fuller

“Neither the climate nor the soil, but allegiance and obedience that makes the subject born.”--Calvin's Case (1608)

Sec. 2, (a) (1) “All citizens of the Philippine Islands shall owe allegiance to the United States.”
Sec. 8. (a) (1) “For purposes of the Immigration Act of 1917 … citizens of the Philippine Islands shall be considered as if they were aliens.”
--The Philippine Independence Act (1934) (Tydings-McDuffie Act)
---------------------------------------------------------------------------------------------------------------------
The Citizenship Clause in Section 1 of the Fourteenth Amendment of the U.S. Constitution declares:

“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.”

A. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS READ OFFICIALLY AND JUDICIALLY AS A “QUALIFYING PHRASE” OF THE ELEMENT PRECEDING IT, “ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES”
Officially and judicially in the United States, the phrase “and subject to the jurisdiction thereof” in the Citizenship Clause is viewed as a “qualifying phrase,” a modifier of the element preceding it, “All persons born or naturalized in the United States.”

“Congress’ intent in including the qualifying phrase “and subject to the jurisdiction thereof,” was apparently to exclude from the reach of the language children born of diplomatic representatives of a foreign state and children born of alien enemies in hostile occupation, both recognized exceptions to the common-law rule of acquired citizenship by birth, as well as children of Indian tribes subject to tribal laws.” [See FindLaw, citing U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) and Elk v. Wilkins, 112 U.S. 94 (1884)]

We underscore the phrases “recognized exceptions” and “subject to tribal laws,” both of which will be discussed in detail later.

B. U.S. CIRCUIT COURTS REJECT THE INTERPRETATION THAT THE WORDS “IN THE UNITED STATES” INCLUDE THE 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 forcefully:

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

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 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.

C. TERRITORIAL FILIPINOS 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 the 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:

"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 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 11 April 1899 and 04 July 1946 following the ratification of the Treaty of Paris (concluded 10 December 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 who, 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 were “aliens by supposition.” And It is precisely the misreading of the Citizenship Clause that legitimized the “supposition” and rendered TERRITORIAL FILIPINOS--natural-born citizens of the United States under the Clause (had it been grammatically read as it was written)--

STATELESS, WITHOUT ANY COUNTRY, AT BIRTH!
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)

D. THE CONJUNCTION “OR” JOINS THE WORDS “BORN” AND “NATURALIZED”
As worded, 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, it is clear that, under this section of the Clause, “citizens of the United States’ are “persons” who are (1) “born … [only] in the United States” and “persons” who are (2) “naturalized [only] in the United States” and NOT anywhere else, other than ONLY “in the United States.”

In other words, owing to the definition of the conjunction “or,” 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 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 Commonwealth of Puerto Rico and of the U.S. territory 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”—and 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 “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?

The U.S. Congress, of course, can lean on the other option--Article I, Section 8.

“The Congress shall have the Power … To establish an uniform law of Naturalization.”

But this authority embodied in the original 1787 U.S. Constitution was no doubt modified by the Citizenship Clause in the Fourteenth Amendment ratified 80 years later in 1868 which declares that ONLY “persons … naturalized in [and NOT OUTSIDE of] the United States,” can qualify to be “citizens of the United States.”

So, in view of this modification, upon what constitutional authority does the U.S. Congress rely on to legitimize the term “COLLECTIVE NATURALIZATION“?

The anomaly of this assumed power is readily evident in the provisions of the U.S. Code itself which 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 (already “born” in) a newly-ceded territory upon annexation and even their children “born” later, but NOT ANY child “born” there.

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” (“after birth,” that is) for your further scrutiny.

And we, of course, must also emphasize the date these cited provisions were to become effective--“April 11, 1899”--which is the date, mind you, of the exchange of ratifications of the Treaty of Paris, the same date the Spanish Crown ceded Las Islas Filipinas (Philippine Islands) to the United States, and the same fateful date Territorial Filipinos became “subject to the jurisdiction” of the United States.

But why has this date been moved RETROACTIVE to “April 11,1899,” when Puerto Ricans were conferred U.S. citizenship only in 1917 and Guamanians only in 1950?

Let the U.S. Congress respond and explain these inexplicables.

Perhaps, by moving the date RETROACTIVE, the U.S. Congress has finally recognized--and is now merely trying to be subtly consistent with-- the jus soli principle that citizenship of a state is acquired if birth occurs in territory over which the state is sovereign on or after the date of formal acquisition of such territory.

In any case, had it really been the intention to authorize the so-called “Collective Naturalization” in the manner it is being applied by the U.S. Congress now, the Citizenship Clause should have been reworded in a way that the words “in the United States,” do not qualify the words “or naturalized,” as follows:

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

Understandably, the exercise of this anomaly has NOT been raised or argued in the Courts, nor has it been exhaustively discussed in legal journals, since “COLLECTIVE NATURALIZATION” affords the enjoyment of rights, privileges, benefits and immunities to those “naturalized” upon conferment of citizenship or nationality. So, why complain?

And, if this is the first time that it has been questioned, the reason is that Territorial Filipinos are the ONLY group that has been unjustly affected, having been collectively “denationalized” by the exercise of this awesome power the U.S. Congress assumes.

These cited implications alone (among others to be discussed later here), brought about by the ungrammatical reading of the Clause, officially and judicially, which views the phrase “and subject to the jurisdiction thereof” as a “qualifying phrase,” may be regarded as a monumental reading error, unbelievably persisting to this day.

E. THE WORDS “OR NATURALIZED” WERE INSERTED LATER
Actually, the words “or naturalized” do not appear in the draft Senator Jacob Merritt Howard, the author, proposed on 30 May 1866 that was debated and “agreed to” that same day. The draft Senator Howard submitted for consideration reads:

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

It was only a week later, June 8th, that the words, “or naturalized,” were inserted “by general consent, after the word 'born'" (without any debate), sponsored by Joint Committee on Reconstruction Chairman Senator William Pitt Fessenden.

It is, perhaps, this later addition of another conjunction “or” from the newly inserted words “or naturalized” (aside from the conjunction “and” in Senator Howard’s original) that may have brought about the grammatical confusion and fueled the lamentable misreading of the Clause.

For shorn of all modifiers and adjuncts, Senator Howard’s draft as originally debated and approved, without the words “or naturalized,” would have been easier to grammatically parse, for it would have looked like this:

“Persons born, and subject to, are citizens.”

This confusion is apparently the reason why the official and judicial view that regards the phrase “and subject to the jurisdiction thereof” as a qualifier or modifier to “All persons … naturalized in the United States” provokes a glaring redundancy, a superfluity.

The official and judicial view is superfluous, since the phrase itself is, in fact, the very reason why a person files a “petition” to be “naturalized” and that is, to be “subject to the jurisdiction” of the United States or, specifically, of the Court. And this can be gleaned from the Court’s view that “An applicant for naturalization is a suitor, who, by his petition, institutes a proceeding in a court of justice for the judicial determination of an asserted right.” (In re Bodek, 1894, Fed Rep. 813, Pa. Dist 725)

Even if the phrase is to be read otherwise, not as a qualifier or modifier, but as a mere description of what a person “naturalized” is or becomes; the prevailing view is still redundant, since a person deemed “naturalized” is simply another way of saying that that person is already “subject to the jurisdiction” of the United States.

NOTE: It is, indeed, odd that this insertion has not been given much thought. In fact, Google and Wikipedia search engines fail to provide a citation in a law journal or Court case that discusses this addition on a later date of the words “or naturalized” to Senator Howard’s Draft. In Wong Kim Ark (1898), it merely mentions about the “omission” as an aside, with nary a comment, that the words “or naturalized” were not in the draft.

This amendment to Senator Howard’s draft has remained virtually unnoticed, probably because the insertion of the words “or naturalized,” which appears on page 3040 (08 June 1866) of the Congressional Globe, is 143 three-column pages from the last page of the Senate Citizenship Clause debate that ended at page 2897 (30 May 1866).

F. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS ENCLOSED WITHIN A PAIR OF COMMAS
Now, take careful note that, as originally proposed, a pair of commas already enclosed the phrase “and subject to the jurisdiction thereof” and, for that matter, even after the words “or naturalized” were inserted later “after the word ‘born.’”

An innocuous comma is often crucial--even fatal.

“Sir Roger Casement was 'hanged by a comma.' This British diplomat was charged with treason during WW I. His trial centered on the question; 'Did the law apply to acts of treason performed abroad?' The answer depended on whether or not there were a pair of commas in the relevant section of the law. It was ruled there were, and Casement was hanged.” (Quoted in Lynn Truss, “Shoots, Eats & Leaves," 2004)

The British Statute of Treasons (1351) referred to declares: "If a man do levy war against our said Lord the King in his realm or be adherent to the enemies of our Lord the King in his realm giving to them aid and comfort in the realm or elsewhere."

“The question of interpretation can be shortly stated: is it treason to adhere outside the realm to the King's enemies? In other words, do the words or elsewhere qualify only the words which immediately precede them, or do they qualify the entire phrase be adherent to the enemies of our Lord the King in his realm giving to them aid and comfort in the realm? If the document had been punctuated, where would the commas have been?

“His counsel contended that, because the Act was unpunctuated, the phrase 'if the man be adherent to the king's enemies in his realm giving to them aid and comfort in the realm or elsewhere' could be construed to mean that it was perfectly all right to plot against the realm provided you did it abroad. Two judges trudged off to the public records and found a faint comma, after the second 'realm'. This, according to Mr Justice Darling, proved that 'giving aid and comfort' were words of apposition, ie if you were on the side of the king's enemies you were on their side wherever you happened to be. And Casement was duly hanged.”

In other words, since the comma was placed before the coordinating conjunction “or,” after the word “realm,” the word “elsewhere” that follows the coordinator was intended to convey the meaning that it was to be regarded as a separate element.

Territorial Filipinos for their part were collectively “hanged by a pair of commas” the author already affixed in the Citizenship Clause but read and ruled--officially and judicially--to be anywhere, except there!

G. COMPARING THE CITIZENSHIP CLAUSE WITH A SIMILAR PROVISION IN THE 1866 CIVIL RIGHTS ACT ENACTED TWO MONTHS EARLIER BY THE SAME 39TH CONGRESS
Had Senator Howard really intended the phrase, "and subject to the jurisdiction thereof," in his original draft to modify the phrase preceding it, "All persons born in the United States," he could have simply followed what the same 39th Congress did just two months earlier in wording a similar provision in the 1866 Civil Rights Act—OMIT THE COMMAS.

The first sentence in 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.”

Note that the grammatical subject of both the Act and Senator Howard’s original draft is basically the same structure:

Draft --“All persons born in the United States, and subject to the jurisdiction thereof,”
Act --“All persons born in the United States and not subject to any foreign power”

Both the Draft and the Act begin with the main subject “All persons” and the adverbial modifier “born in the United States,” but differ only in the phrase that follows joined by the coordinating conjunction “and.”

The telling difference between the two is the manner in which the phrases joined by the coordinator “and” is structured: The phrase in the Draft is enclosed within a pair of commas while that in the Act is not, NO commas are used

Owing to the absence of commas in the Act, the phrase “and not subject to any foreign power” is no doubt intended to modify or qualify the phrase preceding it, “All persons born in the United States,” which is how it was read and intended to convey.

The other more significant difference between the two phrases joined by the coordinator “and” pertains to the words employed: The Draft uses the words “subject to the jurisdiction” while the Act avails only of the words “subject to” (negatively phrase), particularly the absence of the crucial determinant word “jurisdiction,“ which is the subject matter of separate discussion.

H. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS NON-RESTRICTIVE
In the case of the Citizenship Clause, the phrase “and subject to the jurisdiction thereof” is enclosed between a pair of commas, with the first comma placed before the coordinating conjunction “and,” and the second before the linking verb “are,” leaving the phrase virtually sandwiched between the subject and the verb.

Note the stark similarity of the punctuation between the comma in “Casement” (the “hanging” discussed earlier) and that in the Clause: The comma in “Casement” is marked before the conjunction “or,” while the first comma in the Clause is placed also before a conjunction, the coordinating conjunction, “and.”

English grammarians designate an element enclosed within a pair of commas, in this instance the phrase “and subject to the jurisdiction thereof,” as “non-restrictive” whenever “the element enclosed is not grammatically essential to the construction of a sentence” and “the omission of which would not change the meaning of the main clause.”

Simply put, the rule says: “if it can be omitted,” which means that the element is “non-restrictive,” as in the Citizenship Clause, “it can be set off by commas”; if not, which means that the element is “restrictive,” as in the Civil Rights Act, it “should not be set off by the comma.”

Thus, based on these simple rules, the phrase “and subject to the jurisdiction thereof”--which, to repeat, is defined as “non-restrictive” since it is “set off by commas”--is definitely not intended to qualify or modify the element preceding it, “All persons born [“or naturalized” added later] in the United States.”

The phrase does NOT qualify 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.” Even granting the phrase is, it is still a “non-restrictive appositive.”

NOTES: In The Elements of Style by Strunk (1918), “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.”

In 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.”

I. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS THE SECOND OF A COMPOUND SUBJECT
But if the phrase does not act as a modifier or as an appositive, why is it there?

The clue comes from the coordinating conjunction “and” the phrase enclosed begins with and the first comma placed before it.

Grammatically defined, a “coordinating conjunction is a little word [in this case
“and”] whose sole function in a sentence is to tie together two elements that are completely equal in value and alike in function.”

In other words, “a coordinating conjunction is a link that joins two exactly similar elements into one, making a compound.”

Thus, the coordinating conjunction “and” in the subject of the Clause ties together “two exactly similar elements into one, making a compound” or, to be precise, a “compound subject.”

So, since it is not a modifier, nor an appositive, the author obviously intended the phrase to act as the second of a “compound” subject (joined together by the coordinating conjunction “and”), deliberately enclosing the phrase within a pair of commas in order to be identified as “non-restrictive,” so as not to be mistaken or confused later as a modifier or qualifier of the element preceding it, the First subject of the compound.

The compound subject of the Citizenship Clause joined together by the coordinating conjunction “and” consists of:

First: “All persons born or naturalized in the United States”;
Second, “subject to the jurisdiction thereof”

NOTES: It is pertinent to mention in passing that there is a distinct punctuation mark--comma-plus-plus-coordinating-conjunction-“and”--Robert Brittain defines in “Correct Punctuation” 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” employed to “join two independent clauses into one compound sentence.” This structure, Brittain continues, “allows the same subject in the second sentence to be omitted and understood rather then stated.”

“Grammar English's Famous Rule of Punctuation: Never use only one comma between a subject and its verb.”

J. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS AN ELLIPTICAL
But the Second subject of the compound--or the phrase “subject to the jurisdiction thereof”--does not carry a noun, not even a pronoun; thus, the “antecedent” the omission refers to needs to be determined.

As defined, “grammatical structures that omit words that they would usually include are called elliptical” and “the missing subject of the elliptical clause should always be the same as the explicit subject of the main clause.”

The definition continues: “Elliptical Clauses are grammatically incomplete … The missing parts of the elliptical clause can be guessed from the context and most readers are not aware that anything is missing. In fact, elliptical clauses are regarded as both useful and correct, even in formal prose, because they are often elegant, efficient means of expression.”

Guided by this definition of “elliptical,” it is evident that, being joined together by the coordinating conjunction “and” with a comma placed before the coordinator, the “antecedent” that the subject “missing” or omitted from the phrase refers to is no other than the same “explicit” subject of the First in the compound, which is the noun “persons,” modified by the adjective “all” or “all persons.”

Thus, the phrase “and subject to the jurisdiction thereof” is actually the “elliptical construction” for "and all persons subject to the jurisdiction of the United States," with the main subject "all persons" omitted to be understood rather than to be stated or repeated for brevity or style.

There is also another “elliptical” in the Clause.

This is the “elliptical” the author employed in the second of the compound object of the Clause--"citizens of the United States and [citizens] of the State wherein they reside"--with the second object "citizens" in the compound also omitted to be understood rather than to be stated or repeated for brevity or style.

NOTE: A “gapping comma” is meant “to show that one or more words have been left out when the missing words would simply repeat the words already used earlier in the same sentence,” and It “indicates that you have decided not to repeat some words which have already occurred in the sentence.”

K. U.S. SENATE DEBATE CONFIRMS THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” TO BE AN ELLIPTICAL FOR “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
The one question remains: Was the phrase really intended to function as an “elliptical”?

The Draft of the Citizenship Clause Senator Jacob Merritt Howard authored on 30 May 1866 as "prefix" to Section 1 of House Joint Resolution No. 127 (internet accessible at Congressional Globe, 39th Congress, 1st Session, May 30, 1866, p. 2890, 2nd col.) reads:

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

His Draft "was agreed to" that same day. (Id. at 2897, 3rd col.)

Note that, as earlier discussed (Item F), the words “or naturalized” do not appear in Senator Howard’s Draft. It was only a week later, June 8th, that the words were inserted, sponsored by Joint Committee on Reconstruction Chairman Senator William Pitt Fessenden, and approved, without any debate, but "by general consent, after the word 'born.'" (Id. at 3040, 2nd col.)

What should be underscored at this point is that the 8-page Senate debate in the Congressional Globe was focused solely on Senator Howard’s original draft--without the inserted words, “or naturalized” yet.

Following Senator Howard's sponsorship speech, Senator James Doolittle immediately moved "to amend the amendment … by inserting after the word 'thereof' the words 'excluding Indians not taxed.'" (Id. at 2890, 3rd col.)

Senator Doolittle explains the reason behind his amendment, critical of the phrase “subject to the jurisdiction thereof” Senator Howard employed in his draft:

"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…For instance, there are seven to eight thousand Navajoes … in [the territory of] New Mexico." (Id. at 2892, 3rd col.)

Worth mentioning as well is the fact that the entire Senate debate on the Citizenship Clause was a discussion on Senator Doolittle’s proposal concerning the implications of the phrase “subject to the jurisdiction thereof” Senator Howard used in his draft.

Judiciary Committee Chairman Senator Lyman Trumbull responds to clarify:

"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.'" (Id. at 2893, 1st col.)

Senator Trumbull proceeds to describe where these persons "owing allegiance," or "subject to the jurisdiction thereof," are situated by delineating the territorial extent or applicability of the Clause:

"[T]he first section [Citizenship Clause] refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia." (Id. at 2894, 1st col.)

Senator Howard (the author) adds to qualify the word “jurisdiction”:

"[T]he word 'jurisdiction,' as here employed, ought to be construed so as to imply the full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States." (Id. at 2895, 2nd col.)

Unconvinced and still fearful of the consequences of "the very language" Senator Howard used—"subject to the jurisdiction of the United States" (as distinguished from just the words "subject to" used two months earlier in a similar provision in the 1866 Civil Rights Act quoted earlier here)—Senator Doolittle restates the question:

"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." (Id. at 2896, 1st col.)

When the vote was finally taken that day, Senator Doolittle's "amendment to the amendment was rejected" and Senator Howard's "amendment was agreed to." (Id. at 2897, 3rd col.)

Noteworthy during the debate is Senator Doolittle's long-overlooked reason for his apprehension concerning "the very language" Senator Howard employed in defining another category, the now-forgotten 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." (Id. at 2897, 1st col.)

What is interesting to underscore at this point 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 in the scanned Congressional Globe page (at page 2897) printed in “QUOTATION MARKS.”

The printed “quotation marks” appearing in the Congressional Globe journal are significant, crucial. The words a Speaker directly quotes during a debate require a specific instruction to show precisely where the quotation marks are to begin and end.

So, during the debate, Senator Doolittle was obviously obligated to utter the words, “quote” or “to quote,” before citing the phrase, “all persons subject to the jurisdiction of the United States,” in order to warn the Senate stenographers that the line he was about to speak was a direct quotation, requiring it to be printed in the journal punctuated with “quotation marks” later. In fact, for that matter, he had to order at the end, the warning words “unquote” or “end of quote,” to signal to the stenographers that he had already finished citing the direct quotation.

What this reveals, no doubt, is that the phrase Senator Doolittle directly cited that appears 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 it to mean at the time it was spoken, and that is, the complete construction for the “elliptical phrase” used in the Clause; otherwise, Senator Dollittle’s “quote” and “unquote” instructions to the stenographers to enclose the phrase during the debate would certainly have elicited a roomful of questions or, at the least, corrected and discussed.

But there is no discussion whatsoever, and Senator Doolittle’s direct quotation was accepted--evidenced by his colleague’s silence on the line he quoted--as the complete construction of the elliptical phrase Senator Howard used in his draft.

So here, lying dormant in suspended animation, unnoticed, on page 2897 (1st column), Congressional Globe, 39th Congress, 1st Session, May 30, 1866, Senator Doolittle cites the complete construction for the elliptical "language" of this SECOND category of citizens of the United States printed in “QUOTATION MARKS”--

"All persons subject to the jurisdiction of the United States."

Of course, this is in addition to similarly-worded statements Senator Doolittle delivered during the debate already quoted but repeated for emphasis below:

--Page 2893: “… there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States.”
--Page 2897: “… and yet if they are subject to the jurisdiction of the United States they are regarded by the very language of this amendment to be citizens.”
--Page 2897: “… what does it mean when you say that a people are subject to the jurisdiction of the United States …?”

For clarification and to avoid confusion, allow us to repeat what Senator Trumbull said at page 2893 cited earlier in reply to the foregoing remarks of Senator Doolittle, arguing that the phrase was inapplicable to Indians:

"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.'”

Actually, the U.S. government continued to treat the native American tribes or nations as “quasi-sovereign bodies,” and the territory reserved to the native Americans was and is regarded as “within the bounds of the Union.” All native Americans were granted U.S. citizenship in 1922. (See Alan Tauber, "The Empire Forgotten: The Application of the Bill of Rights to U.S. Territories," November 17, 2005, available at SSRN.)

In any case, it is evident that, as understood by the 39th Congress during the debate, the phrase enclosed between the commas, “and subject to the jurisdiction thereof,” is the elliptical for the complete construction, “all persons subject to the jurisdiction of the United States,” conferring a separate, still-unrecognized SECOND category of citizens of the United States.

Applying the clarifications advanced by Senators Trumbull (on “owing allegiance” and “in Territories and in the District of Columbia”) and Howard (on “coextensive in all respects with the constitutional power of the United States”) quoted earlier during the debate, the phrase may be regarded to mean:

“All persons owing allegiance in the Territories and in the District of Columbia over whom the constitutional power of the United States extends.”

This is, of course, consistent with the dictionary meanings of the words (Webster’s Revised Unabridged Dictionary, 1913-1828) at the time they were written:

01. Subject (to) – “Owing allegiance to a particular sovereign or state.” (Sense 2)

02. Jurisdiction – "Sphere of authority; the limits within which any particular power may be exercised. Jurisdiction is limited to place or territory, to persons, or to particular subjects.” (Sense 3)

L. THE ELLIPTICAL PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” DEFINES A STILL-UNRECOGNIZED CATEGORY OF CITIZENS OF THE UNITED STATES—“ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
Having established that the Citizenship Clause consists of a compound subject with an elliptical second subject, it goes without saying that the Clause was intended to confer U.S. citizenship upon TWO categories of “citizens of the United States":

First Category: All persons born or naturalized in the United States
Second Category: All persons subject to the jurisdiction of the United States

The concern for these two categories, (1) "in the United States" and (2) "subject to the jurisdiction of the United States," is consistent with the THIRTEENTH AMENDMENT ratified a year earlier in 1865, insofar as "slavery" is concerned, which declares:

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

First category: Slavery shall not exist within the United States
Second category: Slavery shall shall not exist any place subject to their jurisdiction.

A detailed discussion of the Civil War Amendments is in Part III of this paper.

This conclusion we have reached, of course, contradicts the prevailing official and judicial view of the Clause in the United States which regards the phrase “and subject to the jurisdiction thereof” to be a “qualifying phrase” of the element preceding, “All persons born in the United States.”

We are not alone. Justice Harlan, dissenting in Elk v. Wilkins, 112 U.S. 94 (1884), also had occasion to contradict the official and judicial reading:

“Our brethren, it seems to us, construe the fourteenth amendment as if it read: 'All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the state in which they reside … there is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.”

In fact, in line with Justice Harlan’s thinking, had Senator Howard really intended his original draft to convey the official and judicial view, he could have written his draft with far fewer words to simply read:

“All persons born subject to the jurisdiction of the United States …”

M. TERRITORIAL FILIPINOS ARE PERSONS “SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
Several U.S. Supreme Court and Circuit Court decisions all agree that the U.S. Territory of the Philippine Islands (later Commonwealth of the Philippines in 1934) as well as Territorial Filipinos were--“subject to the jurisdiction of the United States,” to cite a few:

In Grafton v. U S, 206 U.S. 333 (1907). Mr. Justice Harlan delivered the opinion:

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

The U.S. Supreme Court in Barber v. Gonzalez, 347 U.S. 637 (1954) at Footnote (1), reiterating pronouncements in several previous Supreme Court decisions, said:

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

And from the Executive, on 04 July 1946, U.S. President Harry S. Truman proclaimed that:

“The United States withdraws and surrenders all rights of possession, supervision, jurisdiction, control or sovereignty now existing and exercised by the United States of America in and over the territory and people of the Philippines …”

Thus, the phrase “subject to the jurisdiction of the United States” is of “paramount” importance to Territorial Filipinos; for, to summarize, in:

--Grafton (1907), “the jurisdiction … of the United States over the territory and its inhabitants, for all legitimate purposes of government, is paramount”;
--Barber (1954, citing Hooven & Allison Co. v. Evatt, 1945), “the Philippine Islands were American territory subject to the jurisdiction of the United States”;
--President Truman’s Proclamation (1946, text taken from 1934 Philippine Independence Act ): “the United States withdraws and surrenders all rights of … jurisdiction … now existing and exercised by the United States of America in and over the territory and people of the Philippines.”

Territorial Filipinos, therefore---whatever the political status they were conferred with, or the territory they were born in as arbitrarily designated, by the U.S. Congress--were unquestionably:

“Persons subject to the jurisdiction of the United States.”

N. UNDER THE CITIZENSHIP CLAUSE, TERRITORIAL FILIPINOS (THE ANTENATI AND THE POSTNATI) ARE CITIZENS OF THE UNITED STATES
Doubtless, the territory of the Philippine Islands and Territorial Filipinos were “subject to the jurisdiction of the United States”; if they were not, to what state were they “subject to the jurisdiction of” after Spain ceded them to America in 1898?

Now, since Territorial Filipinos were persons “subject to the jurisdiction of the United States,” there is only ONE conclusion as to their status during the American territorial period in the light of the correct grammatical reading of the Citizenship Clause, and that is--

Territorial Filipinos are citizens of the United States.

Territorial Filipinos belong to two distinct categories:

(1) The “Antenati “were born before 11 April 1899 and became citizens of the United States from and after the moment they became, on that date AFTER BIRTH, ”subject to the jurisdiction of the United States”; and

(2) The “Post Nati “were born after 11 April 1899 and before 04 July 1946, “subject to the jurisdiction of the United States,” and became citizens of the United States AT BIRTH or are “natural-born.”
--------------------------------------------------------------------------------------------------------------------------------------------

Part III discusses the historical context of the Citizenship Clause, particularly the "Abolition of Slavery in the Territories," and the irrelevance and unconstitutionality of the laws the U.S. Congress enacted regarding the status of Territorial Filipinos during the American territorial period.