Part 8 - Birthright Citizenship and the 14th Amendment

Introduction
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

During the latter half of the 19th century, the Republican controlled congress passed several laws which were known collectively as the Chinese Exclusion Acts.  These acts were designed specifically to prevent Chinese laborers from entering the United States, and in August, 1895, Wong Kim Ark who had been born in America to Chinese parents was forbidden entry back into the United States.  The U.S. attorney claimed that Wong was not a citizen because he was born to parents who were subjects of Emperor of China.  Thus their child was not born subject to the jurisdiction of the United States even though he was born within the borders of America.   The Supreme Court stated the question to be decided as:

“The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution.”
 
The Court decided in favor of Wong by a six to two majority, and Justice Gray wrote the opinion of the Court.
 
To support their decision to recognize Wong’s birthright citizenship as valid, the Court presented an analytical history of the concept of citizenship in America.  They began with the history of birthright citizenship under British common law.  According to the Court:

“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 -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”
 
The Latin phrase inserted into the middle of this paragraph translates as “protection draws with it subjection, and subjection protection.”  The phrase is considered a maxim in British law, and it is explained in Black’s Dictionary of Law as:

“The protection of an individual by government is on condition of his submission to the laws, and such submission on the other hand entitles the individual to the protection of the government.”

Thus, what the Supreme Court was saying in the above paragraph is that, under British common law, everyone who was protected by the King’s laws was a subject of the King and owed him allegiance for as long as they remained under that protection.  Even aliens traveling within the realm owed allegiance to the King as long as they were within his realm.  The only aliens who did not owe allegiance to the King while they were within the borders of his realm were those aliens who remained under the complete protection of some other sovereign in spite of their location.  This would include foreign emissaries and members of a foreign military who entered the realm in a state of war.  These aliens did not receive protection from the King of England, and therefore, were not under any obligation to submit to him. 

In applying this principle to children, British common law declared that all children born within the borders of England were natural born subjects of the King except for the children of foreign emissaries and the children of foreign armies during a time of war.  The children born to aliens within the realm of England were born under the protection of the King of England and thus owed him subjection.  Since they received this protection and owed this subjection from the moment of their birth, they were natural born subjects of the King of England.
 
The Court quoted several British authorities and cited multiple cases in British courts which gave unanimous confirmation of the Court’s view of British citizenship.  They concluded their study of British laws on citizenship with the claim that:

“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.”

But why did the Court bother with such a study of the British laws of citizenship in the first place?  The Court answered this question by quoting Justice Matthews who had previously explained that “There is no common law of the United States.”  But Justice Matthews followed that statement with a very important exception.  He claimed:

“There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

According to Justice Matthews and thus according to the Court in United States vs. Wong Kim Ark, a knowledge of British common law is necessary for a proper understanding of the language used in the Constitution.  The Court was not claiming that the common law of England had any legal force in America after the adoption of the Constitution.  They were merely pointing out the obvious fact that many of the adults in America at the time that the Constitution was adopted would have spent more than half of their lifetimes as British subjects.  Given this condition, it should be readily apparent that the words used in forming the laws of America were largely adopted from and thus carried definitions from the laws of England. 

It was for this reason that the Court began their study of the history of citizenship in America with an analysis of the laws of citizenship in England.  Many of the men who established our laws here in America would have grown up under a system of laws in which every child born on British soil was a British subject (with the exception of children born to ambassadors or invading armies).  That would have been their default view of citizenship, for it was the manner of citizenship with which they were the most familiar.  Of course, they were not bound by that particular view of citizenship.  They were free to adopt another view if they chose to do so, but their own heritage as British subjects would have at least had significant influence on their understanding of who was and who was not a natural born citizen of America. 

U.S. vs. Wong Kim Ark - Justice Story on Allegiance
U.S. vs. Wong Kim Ark - The Claims of the Judicial Branch
More Posts Coming Soon...