The Debate in the Senate - Sen. Howard's Previous Remarks
The Debate in the Senate – Sen. Wade’s Proposal
The Debate in the Senate - Sen. Howard’s Amendment
The Debate in the Senate - Complete Jurisdiction
The Debate in the Senate - More on Complete Jurisdiction
The Debate in the Senate - Sovereignty Over the Soil
U.S. vs. Wong Kim Ark - British Citizenship
U.S. vs. Wong Kim Ark - Justice Story on Allegiance
U.S. vs. Wong Kim Ark - The Claims of the Judicial Branch
In continuing their review of the history of birthright citizenship in America, the Court also quoted from Justice Story’s landmark publication Commentaries on the Conflict of Laws Foreign and Domestic. The quotation noted by the Court was:
“There are certain principles which have been generally recognized by tribunals administering public law, or the law of nations, as of unquestionable authority. First, persons who are born in a country are generally deemed citizens and subjects of that country.”
Now, critics of the Court’s ruling in U.S. vs. Wong Kim Ark often point out that the Court neglected to consider the exception that Justice Story suggested for this particular principle. We will look at this objection more closely in a later section, but we should note for the time being that, while Justice Story did mention an exception to this general principle, he was very careful to point out that the exception was just his personal opinion and not a universally recognized principle. The general principle which enjoyed near universal acceptance was that “persons who are born in a country are generally deemed citizens and subjects of that country.”
The Court then referenced the 1824 case McCreery vs. Somerville which “assumed that children born in that State of an alien who was still living, and who had not been naturalized, were ‘native-born citizens of the United States.’” The Court also quoted from the 1866 case United States vs. Rhodes which had been decided on the circuit court level. In that case, Justice Swayne wrote that:
“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”
As we noted previously, allegiance is the duty that an individual owes to a government in exchange for the protection of that government’s laws. Thus, the condition of being born in the allegiance of the United States is a condition that exists for every child born in America who does not possess some kind of immunity from American laws such as the immunity possessed by children born to foreign ambassadors. Thus, according to Justice Swayne, the common law of the United States was that all children born within the territorial boundaries of the United States were citizens of the United States except for the children born to foreign ambassadors or to foreign enemies occupying American soil.
The Wong Court also referenced an 1805 decision from the Supreme Court of Massachusetts which:
“held that the determination of the question whether a man was a citizen or an alien was ‘to be governed altogether by the principles of the common law,’ and that it was established, with few exceptions, ‘that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term citizenship.’”
Once again we see that birthright citizenship in the United States is a product of the allegiance that the child owes to the government because of the protection which that child is afforded by the laws of the United States. This reciprocal relationship between allegiance and protection is the foundational principle of citizenship.
The Court then cited a case from the Supreme Court of North Carolina which concluded that:
“Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens … all free persons born within the State are born citizens of the State … The term ‘citizen,’ as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before was a ‘subject of the king' is now 'a citizen of the State.’”
There are several significant statements in this quotation. First, we find that the British common law regarding birthright citizenship was fully adopted by North Carolina with the only difference between the two being the use of the term “citizen” in the latter in place of the term “subject” in the former. Additionally, this case directly equates the concept of being “born within the dominions” of a government with the concept of being born with an allegiance to that government. And by saying that all free persons “born within the state are born citizens of the State,” the North Carolina court revealed that the idea of granting birthright citizenship to every child born within the territorial boundaries of a given government had in fact been put into practice prior to the ratification of the 14th Amendment.
All of these proclamations from the judicial branch provided overwhelming affirmation of the Wong Court’s claim “That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth.”
More posts coming soon...
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