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
U.S. vs. Wong Kim Ark - Rejection of Jus Sanguinis
The Latin phrase jus sanguinis means “the right of blood,” and it is used as a reference to the theory that children should inherit the citizenship status of their fathers regardless of the location of their birth. The Wong Court considered this doctrine and rejected the claim that this view of citizenship was the foundational view of citizenship in America.
The Court began their repudiation of jus sanguinis with a quotation from James Kent, one of the early Chancellors of New York whose opinions formed the basis of American equity jurisprudence. In writing about birthright citizenship, Chancellor Kent wrote that natural born citizens are:
“all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent.”
By noting that the citizenship status of the children was determined “without any regard or reference to the political condition or allegiance of their parents,” the Chancellor was rejecting the doctrine of jus sanguinis. According to Chancellor Kent, the location at which a child is born is the primary factor which determines the child’s status as a citizen. And speaking of the same topic in another location, he indicated that the doctrine of jus soli or “the right of the soil” was the default view of citizenship throughout the United States. The Chancellor wrote:
“I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary.”
The Court also quoted from Horace Binney’s 1853 publication The Alienigenæ of the United States Under the Present Naturalization Laws. In this book, Mr. Binney pointed out that:
“The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.”
Mr. Binney, and thus the Supreme Court, recognized that the doctrine of jus soli was the foundational doctrine of American citizenship and not the doctrine of jus sanguinis.
In regards to the doctrine of jus sanguinis, the Court noted that:
“It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.”
However, after examining the citizenship laws of the European nations, the Court concluded that there was:
“little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.”
The only example of jus sanguinis that the Court found which had been implemented early enough to have had any effect on the meaning of the citizenship clause of the Fourteenth Amendment was the 1807 Code of Napoleon. Under Napoleon, French law adopted the doctrine of jus sanguinis as the foundational doctrine of their citizenship laws. The Court noted, however, that France had relied almost exclusively on the doctrine of jus soli before Napoleon’s rise to power. To support this claim, the Court quoted the eminent Robert Pothier who wrote of French citizenship in the 18th century that:
“mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil.”
The Court further noted that:
“The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799.”
Thus, the Court came to the conclusion that the adoption of jus sanguinis during the Napoleonic era was an aberration rather than the norm in French law in particular as well as in European law in general.
The Court did note, however, that the doctrine of jus sanguinis had played a minor role in the citizenship laws of both England and America. According to the Court:
“Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport, and they have never been considered in either country as affecting the citizenship of persons born within its dominion.”
In other words, in both England and America the doctrine of jus sanguinis has been used solely to grant citizenship to children born to citizens abroad. The Court quoted from four sequential laws passed by the United States Congress which utilized the doctrine of jus sanguinis in this manner.
The Naturalization Act of 1790 applied this doctrine to “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States.” The 1795 act by the same title applied jus sanguinis to children who were born to American citizens “out of the limits and jurisdiction of the United States,” and the statutes of 1802 and 1855 adopted the same language.
These were the only four instances of the doctrine of jus sanguinis being enacted into law by Congress prior to the Fourteenth Amendment, and all four of these laws limited the application of jus sanguinis to children who were born outside of the jurisdiction of the United States. In the words of Wong Court:
“Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty.”
U.S. vs. Wong Kim Ark - The Slaughterhouse Cases
U.S. vs. Wong Kim Ark - Subject to the Jurisdiction Thereof
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Bill Fortenberry is a Christian philosopher and historian in Birmingham, AL. Bill's work has been cited in several legal journals, and he has appeared as a guest on shows including The Dr. Gina Show, The Michael Hart Show, and Real Science Radio.
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