 Ever since the Constitution was first submitted for ratification, the final clause in Article VI has been a matter of strong contention among Americans. That clause, known as the religious test clause, simply states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” It is frequently claimed that this clause represents the desire of the founding fathers to keep religion out of the government and to establish a secular nation. But is that really how this phrase was intended to be used?
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 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 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 U.S. vs. Wong Kim Ark - The Slaughterhouse Cases U.S. vs. Wong Kim Ark - Subject to the Jurisdiction Thereof U.S. vs. Wong Kim Ark - Opinions of the Executive Branch U.S. vs. Wong Kim Ark - A Very Broad Conclusion Supreme Court opinions are often described as being either narrow or broad in their application. An opinion is considered to be narrow if it applies only to the specific case that was brought before the court and other cases just like it. A broad opinion, on the other hand, is an opinion that was written to give guidance to future courts who may have to rule on cases in a similar context. Those who oppose birthright citizenship for the children of aliens often claim that the opinion of the Wong Court was a narrow opinion. They claim that it only applies to the children of permanent residents. The Wong Court itself, on the other hand, presented their opinion as a very broad conclusion which would apply to every child born on American soil.  I recently discovered a document from 1796 which confirms the prevalence of birthright citizenship in the early days of the republic. It's a circular that was sent out by Oliver Wolcott Jr. who was George Washington's Secretary of the Treasury. The circular was written and distributed at Washington's request and with the advice of Attorney General Charles Lee and Secretary of State Timothy Pickering. I've uploaded a photo of the entire document below followed by an explanation of its relevance to the birthright citizenship debate.
 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 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 U.S. vs. Wong Kim Ark - The Slaughterhouse Cases U.S. vs. Wong Kim Ark - Subject to the Jurisdiction Thereof U.S. vs. Wong Kim Ark - Opinions of the Executive Branch At this point, the Wong Court turned its consideration to the writings of members of the executive branch concerning the legality of birthright citizenship. They began with a letter from Ebenezer Hoar, the Attorney General under President Grant, which had been written to Hamilton Fish, the Secretary of State. In that letter, the Attorney General explained that America had no authority to interfere with the right of other nations to grant citizenship to the children who were born abroad to American parents. He spoke of these children as owing allegiance to the country of their birth even though they were born to American parents.  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 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 U.S. vs. Wong Kim Ark - The Slaughterhouse Cases U.S. vs. Wong Kim Ark - Subject to the Jurisdiction Thereof After dismissing Judge Miller’s statement in the Slaughterhouse Cases, the Wong Court turned to another case which they described as “the only adjudication that has been made by this court upon the meaning of the clause, ‘and subject to the jurisdiction thereof.’” That case was the 1884 opinion given in Elk v. Wilkins.  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 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 U.S. vs. Wong Kim Ark - The Slaughterhouse Cases After presenting the history of citizenship in America and concluding from that history that America had always had a jus soli foundation for citizenship, the Court moved on to address the phrase “subject to the jurisdiction thereof” which has been the focus of so many of our modern debates on birthright citizenship. The Court began its consideration of this phrase with a look at an 1873 Supreme Court opinion known simply as The Slaughterhouse Cases.  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 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.  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 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:  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 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:  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: |
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.
Contact Us if you would like to schedule Bill to speak to your church, group, or club. "Give instruction to a wise man, and he will be yet wiser: teach a just man, and he will increase in learning." (Proverbs 9:9)
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