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
After establishing that English common law granted birthright citizenship to all children born within the realm of the King of England, the Court reviewed the history of this practice in America. They introduced this section of their opinion with the claim that:
“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.”
According to the Court, the United States adopted the same principle of birthright citizenship that they had practiced under British law. The Court supported this claim with quotations from numerous other Supreme Court rulings on questions of citizenship. One of the cases that the Court referenced was Inglis vs. Trustees of Sailor’s Snug Harbor in which Justice Joseph Story authored a very important concurring opinion. The Wong Court quoted Justice Story to explain what is meant by the term “allegiance” which is so often used in reference to citizenship. According to Justice Story (and, subsequently, according to the Wong Court):
“Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign.”
This is the same view of allegiance that the Court found in British common law which is not surprising since Justice Story cited two landmark British cases (Calvin’s Case and Doe v. Jones) as the source of his definition. However, this definition of allegiance was so widely accepted that Justice Story listed it as a general principle which influenced American law and not just as a principle of the common law of England. It was a general principle in both British and American law that allegiance was the duty which an individual owed to the government that was responsible for his protection. As Justice Story continued to explain:
“Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto.”
Justice Story cited three exceptions to birthright citizenship which “confirm the general doctrine.” The first exception is that children born on the ocean are considered to be citizens of the nation of their parents. According to Justice Story, this is because such children are born in a place where all governments have a common dominion. The second exception is that children born to foreign ambassadors are born as citizens of the nation that the ambassador represents regardless of the location of birth. And the third exception is that the children of invading armies born in occupied territory are citizens of the occupying nation and not of the nation being thus occupied. All three of these are based on the second requirement of birthright citizenship.
Each of these three exceptions is founded on the question of which nation is providing protection for the child at the time of his birth. In the case of the first exception, the nation of the child’s parents is responsible for his legal protection since each nation is responsible for its own citizens on the ocean. In the case of the second exception, the family of an ambassador is insulated from the laws and protection of the nation to whom he is sent and is protected instead by the nation whom he represents. And in the case of a child born to military personnel in occupied territory, the territory thus occupied is no longer under the rule of the nation being occupied but rather under the rule of the nation doing the occupying. Thus, the child born to the occupying force is under the protection of the occupying nation and is a citizen of that nation. Each of these exceptions confirms the general rule of birthright citizenship.
Justice Story concluded his analysis of birthright citizenship with the claim that:
“Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.”
The Wong Court came to this same conclusion. Wong was born under the protection of United States law. He thus owed a duty of allegiance to the United States because of the protection that he received. Since Wong was born within the borders of the United States, and since he owed allegiance to the United States because of the protection which he enjoyed from the time of his birth, Wong was a citizen of the United States at the time of his birth. Anyone born within the United States is a citizen of the United States unless he is born under circumstances that place him outside of the protection of the laws of the United States.
U.S. vs. Wong Kim Ark - The Claims of the Judicial Branch
U.S. vs. Wong Kim Ark - Rejection of Jus Sanguinis
U.S. vs. Wong Kim Ark - The Slaughterhouse Cases
U.S. vs. Wong Kim Ark - Subject to the Jurisdiction Thereof
More posts coming soon...
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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