A.P. Morse
Posted on 01/22/2016 7:58:09 AM PST by SeekAndFind
The problem with the CRS memo (and near all of the other articles purporting to state "citizen at birth" equates to "natural born citizen") is that they all dodge or blur the key argument to the contrary (the argument McManamon makes in her law review article): namely, that the common law did not recognize the jus sanguinis principle and that children born abroad were only subjects (citizens) at birth by virtue of legislative power. McManamon cites to U.S. v. Wong Kim Ark:
The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. . . . Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized . . . by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."
What the Court said here in WKA was embraced as part of the decision in Rogers v. Bellei. The Bellei case found that Mario Bellei, a person born in Italy to a U.S. citizen mother and alien father, did not meet the "Constitutional definition" of citizen and thus was subject to having his citizenship revoked solely by the terms of the statute granting him citizenship at birth.
Jack Maskell references Rogers v. Bellei, but I find his treatment of the case to be somewhere between sloppy and incomplete and disingenuous. Maskell writes: "The Supreme Court in Rogers v. Bellei explained that under the Fourteenth Amendment's citizenship clause the requirement that one would have to be either born in the United States or naturalized in the United States were designations for "Fourteenth-Amendment-first-sentence" citizenship only." What is misleading about this last phrase is that what Maskell terms "Fourteenth-Amendment-first sentence citizenship" is what the SCOTUS majority exclusively termed "the Constitutional definition" of citizenship. And Maskell doesn't mention that all of the justices deciding that case (the majority and dissenters) termed Bellei a naturalized citizen. So, if being born abroad makes one a naturalized citizen and puts the person outside the Constitutional definition of citizenship, how can it be said such a person can be a Constitutional Article II natural born citizen?
Neither Maskell nor any of the other "citizen at birth means natural born citizen" writers gets near to raising -- let alone answering -- this question.
And given that 1) there are only two sources of citizenship, natural born and naturalized, 2) Chinese persons could not be naturalized, and 3) Gray had already reasoned that every child born in the U.S. of alien parents is a natural born citizen, what sort of citizen was Wong? He was a natural born citizen.
The Ankeny Court got this one right. You're still floundering around.
But Gray didn't ignore the legislative history. The legislative history to the citizenship clauses of the Civil Rights Act and the 14th Amendment make clear the Congress felt it was simply incorporating the existing common law on citizenship, i.e., the rule on natural born citizen. Examples:
"This clause is unnecessary, but nevertheless proper, since it is only declaratory of what is the law without it. This has been sufficiently demonstrated by the by the distinguished chairman of the Judiciary Committee (Mr. Wilson's speech, March 1) and by the authorities he has cited. (1 Sharwood's Blackstone, 844; Naturalization Ac's Digest, 187; Section 10 of Act of September 4, 1841; Opinions of Attorneys General, vol. 4.. 1 Bouvier's Law Dictionary, title Denizen; 2 Kent. Comm., 278, note; . . Rawle on Constitution, 80; State ex Manuel, 3[.]
In the great case of Lynch vs. Clarke, it was conclusively shown that in the absence of all constitutional provision or congressional law declaring citizenship by birth, "it must be regulated by some rule of national law coeval with the existence of the Union" it was and is that "all citizens that children born here, are citizens, without any regard to the political condition or allegiance of their parents." (1 Sandford's Ch. R., 483)
This was the common law of England, and this statute (25 Edward II, St. 2 [] ) was declaratory of the old common law." Rep. Lawrence, Cong. Globe, 39th Cong., lst Sess. 1832 (1866)
Cong. Wilson affirms this with abundance:
This provision, I maintain, is merely declaratory of what the law now is. This, I presume, would not be disputed if the language were qualified by the presence of the word "white." In the absence of this word, I am sure that my proposition will be disputed by every member of this House who believes that this Government is exclusively a "white man Government." I think this question of sufficient importance to justify me in giving it something more than a mere passing notice. Blackstone says:
"The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the Crown of Englnd: that is, within the ligeance, or, as it is generally called, the allegiance of the King; and aliens are such as are born out of it." Sharswood's Blackstone, vol. 1, p. 364.
The principle here laid down applies to this country as well as England. It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, "founded in reason and the nature of government."
* * *
"It is in vain we look into the Constitution of the United States for a definition of the term "citizen." It speaks of citizens, but in no express terms defines what it means by it. We must depend upon the general law relating to subject and citizens recognized by all nations for a definition, and that must lead to a conclusion that every person born in the United States is a natural born citizen of such States, except it may be that children born on our soil to temporary sojourners or representatives of foreign Governments are native born citizens of the United States. Thus it is expressed by a writer on the Constitution of the United States: "Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity." Rawle on the Constitution, pg. 86." Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1115 - 1117 (1866).
The existing law which was being incorporated and declared by the legislation was the common law meaning of "natural born citizen" by which every person born in the U.S., even of alien parents, was a natural born citizen" (save for the cases of diplomats, hostile occupation, and children born to sovreign, self-governing indigenous tribes).
That's exactly how Gray phrased it. The legislative history was not ignored; it was affirmed.
RE: Of it could just be a refutation of your conclusion, not an implication of uncertainty.
OR, it could also be a refutation of YOUR conclusion, which means the use of the word “could” implies uncertainty.
RE: How about the really simlistic one. Your natural born if you have nothing else to choose
Or the simplistic one is — you are natural born if you are considered a citizen AT birth ( i.e., you do not need to apply for naturalization ).
RE: Yet one of the requirements for Presidential eligibility is that they be natural born, so there is every reason to believe it did pertain to it.
Sure, but there is no proof that when they wrote it, the Presidency was on their mind. They were SPECIFICALLY addressing the issue of natural birth.
RE: Because she is not the only parent involved in the child’s birth. What right does her citizenship have to subvert the sovereignty of her spouse’s nation that his citizenship is derived from?
The question can be turned around -— what right does the spouse have to subvert the sovereignty of HER nation?
What rules tells us that only the husband’s citizenship counts and the wife’s does not?
Doesn’t the 14th amendment apply here?
RE: No, he was already naturalized by statute
Or he was already natural born by virtue of his mother’s citizenship.
Article I, section eight gives Congress the authority to “establish a uniform rule of Naturalization,” and thus identify, by statute, those who must to go through a naturalization process to obtain U.S. citizenship. Those citizens who do not need to go through the naturalization process can be considered “natural born” citizens.
RE: You’re applying the wrong part of your definition - It may be done by a statute, without any effort on the part of the individual,
If a statute was written into law before a person was born, how does that NOT COVER the state AFTER his birth?
If a law states that any person born of either a citizen father or mother is a citizen at the moment of birth, why can’t it be understood to be SUBSUMED under the understanding of natural born?
RE: No, it is that simple. Sorry - that article is from NBC news in 2016 with no historical references whatsoever. Basically, it’s meaningless.
I have to disagree with you here. The NBC article simply ACKNOWLEDGES that the issue is still in doubt and there is not a clear consensus on the issue. NBC might not be trustworthy on all things, but on this one issue, they got it right. There is NO CONSENSUS.
RE: Now let’s CONTINUE that train of thought - that natural born citizen marries a foreigner and has a natural born child. Then that child marries a foreign born citizen and has a natural born child. Then THAT child marries a foreign born citizen and has a natural born child....
Ten generations down the road, you could have someone show up back in this country and run for President.
How does that square with the Founder’s specified intent of preventing foreign allegiances?
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Allegiance is a matter of the heart, more than circumstances of birth. If your scenario were to occur in future, IT WILL ALSO APPLY to someone who follows that chain with the exception that his ancestors were BOTH NATURAL BORN.
If that were to happen, the American electorate will have to determine where that person’s true allegiance (that is, his heart and actions ) lie.
Benedict Arnold was a natural born citizen by all clear understanding of it. That did not stop him from changing sides and supporting the British instead of Americans.
Therefore, that train of thought supposition you just presented could apply to someone born of TWO American parents, not just one.
The great great grandchild, even when born of natural born ancestry, could eventually be loyal to the country of the foreign born parent regardless of how many generations you put the chain in. Or he could still love and be loyal to the USA. We have to take it on a case by case basis and look at the INDIVIDUAL.
Heck, it took just one generation for natural born citizen John Walker Lindh to switch his loyalty from the USA to Afghanistan’s Taliban.
James Madison did comment that:
http://press-pubs.uchicago.edu/founders/documents/a1_2_2s6.html
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other”
HOWEVER, it must be noted that even as Madison acknowledges that “place is the most certain criterion,” but he is not suggesting that it is the ONLY criterion, as he states unequivocally that the “established maxim” is that the ultimate criterion is “allegiance,” of which the place of birth is but one (albeit “certain”) criterion.
So, the issue is not clear-cut.
SEE HERE:
http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/
Former Solicitors General Neil Katyal and Paul Clement have recently noted in the Harvard Law Review Forum,
All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States. . . .
The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law and enactments of the First Congress. Both confirm that the original meaning of the phrase “natural born Citizen” includes persons born abroad who are citizens from birth based on the citizenship of a parent.
I know you will disagree with the above writing of these two Harvard Professors, but my point is still this — THE ISSUE IS NOT SETTLED.
Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Framers of the Fourteenth Amendment explained the jurisdiction clause:
Rep. Bingham:
The Fourteenth Amendment is “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”
Sen. Trumbull:
“‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”
Sen. Williams:
Senator during the drafting of Amend. XIV, later as US Attorney General ruled the word “jurisdiction” under Amend. XIV “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” “Political and military rights and duties do not pertain to anyone else.”
The jurisdiction clause is specifically stated to pertain to political rights and allegiance, not territorial bounds.
Ignoring legislative history Gray “presumes” the intent of the jurisdiction clause:
The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words “out of the limits and jurisdiction of the United States” as habitually used in the naturalization acts. This presumption is confirmed by the use of the word “jurisdiction” in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” It is impossible to construe the words “subject to the jurisdiction thereof” in the opening sentence, as less comprehensive than the words “within its jurisdiction” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.”
Gray states “It is impossible [] to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States'” - yet the Framers precisely made that distinction. They made clear that “subject to the jurisdiction thereof” pertains to “political rights” and “allegiance”. Equally clear and obvious is that not all persons “within the jurisdiction” of the United States have political rights.
Gray ignores the Framers' intent by conflating “jurisdiction” as used in the first sentence with that in the last sentence. The first sentence confers citizenship, the last sentence applies municipal law within a territory. These are entirely different matters, in the first instance political and in the last instance governance of a geographic area.
Having misconstrued the jurisdiction clause as territorial Gray then proceeds to examine the common law of England.
To lend a sheen of legitimacy to his use of English law Gray cites State v. Manuel:
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.”
State v. Manuel is an 1838 case before the North Carolina Supreme Court. The following is the first portion of the paragraph containing the cited sentence:
It has been said that before our Revolution, free persons of colour did not exercise the right of voting for members of the colonial legislature. How this may hvae been, it would be difficult at this time to ascertain. It is certain however that very few, if any, could have claimed the right of suffrage, for a reason of a very different character than the one supposed. The principle of freehold suffrage seems to have been brought over from England with the first colonists, and to have been preserved almost invariably in the colony ever afterwards. In the act of 1743, ch. 1, (Swan’s Revisal, 171,) it will be seen that a freehold of fifty acres was necessary to entitle the inhabitant of a county to vote, and by the act of 2d Sept. of 1746, ch. 1, Ibid. 223, the freeholders only of the respective towns of Edenton, Bath, Newbern and Wilmington were declared entitled to vote for members of the Colonial Legislature. The very Congress which framed our constitution, was chosen by freeholders. That constitution extended the elective franchise to every freeman who had arrived at the age of 21, and paid a public tax; and it is a matter of universal notoriety that under it, free persons without regard to colour, claimed and exercised the franchise until it was taken from free men of colour a few years since by our amended constitution. But surely the possession of political power is not essential to constitute a citizen. If it be, then women, minors, and persons who have not paid public taxes are not citizens – and free white men who have paid public taxes and arrived at full age, but hove not a freehold of fifty acres, inasmuch as they may vote for one branch and cannot vote for the other branch of our legislature, would be in an intermediate state, a sort of hybrids between citizens and not-citizens. 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.” Considering therefore the defendant as having a right to the protection of the clauses in the constitution and declaration of rights on which he relies, we proceed to the examination of the alleged repugnancy between these and the act of 1831. The 39th section of the constitution is in these words: “The person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up bona fide all his estate, real and personal for the use of his creditors in such manner as shall be hereafter regulated by law.” ….
It is quite clear that Judge Gaston’s references to “our law” and “our constitution” are references to the statutes and Constitution of North Carolina. As North Carolina has a reception statute the cited sentence is true in North Carolina. The same can not be said for the federal government which does not incorporate the common law of England via Constitution, reception statute, or other method. The cited sentence is inapplicable to the federal government.
Gray’s use of English common law is inappropriate and his cite of Manuel to justify its use is dishonest.
Gray ignored legislative history of the Fourteenth Amendment and interpreted the intent of the jurisdiction clause territorially rather than politically ignoring the specifically stated intent of its Framers.
The holding is binding on lower courts: the SINGLE question of whether Wong was a citizen of the United States by virtue of the first clause of the Fourteenth Amendment was answered in the affirmative. The rationale when erroneous is dicta, it has little value as precedent or guidance and is not binding on lower courts.
Neither Amend. XIV nor WKA touch Art. II’s eligibility requirements.
Yes, the criterion of "NBC" relates to one's status at birth - but babies are not eligible to be elected President, nor are 35-year-olds who have since renounced their U.S. citizenship.
By the way, re. "snapshot:" There is a third requirement for eligibility: Residency for at least 14 years.
Regards,
A very unlikely scenario!
But I'll give you a much more-likely one: Some 5-rate dictatorship somewhere in the world passes legislation (or, more likely: issues a decree) that the grandchildren or even great-great-grandchildren of its subjects are its own NBCs regardless of place of birth.
RESULT: Some 4th-generation American, born and bred in (say) Oklahoma, announces his candidacy for President, and then the Supreme Court or Grand Vizir of, say, the Republic of Abkhasia or Transnistria declares: That Oklahoman is also a subject of our country! He's a dual national! Thus making him ineligible (by your definition) to become President of the U.S.
Regards,
That’s why the rule can’t be no dual nationals, but instead simply the strictest formulation that would most preclude the possibility of dual nationals.
5) Born to a US citizen parent beyond the shores of the US"
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That Act was repealed in 1795 and "natural born" was removed. Thereafter, those born abroad to a US citizen parent were just "citizens." James Madison was on the House Committee responsible for the repeal, the removal, and the 1795 ACT which replaced it.
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"Citizenship" isn't enough for Constitutional eligibility. One must be a "natural born citizen." Congress had the chance to define those with birth circumstances such as Cruz's as "natural born citizens" for Constitutional eligibility purposes in 2004, but they did not.
AB: “But I’ll give you a much more-likely one: Some 5-rate dictatorship somewhere in the world passes legislation (or, more likely: issues a decree) that the grandchildren or even great-great-grandchildren of its subjects are its own NBCs regardless of place of birth.”
Your supposition above make no difference since it was legislation of another country. US Law does not honor the laws of other countries over our citizens. That is the very basis of citizenship. But US law does acknowledge that within our borders there are aliens. Our laws do acknowledge that these non-citizens are subject to the laws of their own heritage. Until they are full US citizens, these people are still under the authority of their “fatherland”.
But as Blue Wall suggests (and I concur) is that Congress has authority to define citizenship (without amendment) as it pertains to those born on foreign soil and/or with dissimilar parentage. But Congress has no authority to change the status of those who are natural born. It seems obvious to me that if Congress could pass laws revoking the citizenship of an individual, it must mean that same individual does not have the Constitutional protection of a NBC.
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Not quite true. The exception is the case of dual citizens.
"Each country has its own nationality laws based on its own policy. Persons may have dual nationality by automatic operation of different laws rather than by choice."...The US Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. nationals may conflict with US law, and dual nationality may limit US Government efforts to assist nationals abroad. The country where a dual national is located generally has a stronger claim to that person's allegiance.
However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there."
A.P. Morse
And in the view of the framers of the citizenship clauses of the Civil Rights Act (Sen. Trumbull) and 14th Amendment (Sen. Howard), persons born in the U.S. to alien parents were citizens at birth and thus natural born citizens, and they emphasize this was the existing common law they were incorporating in the legislation!
"I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. Is not the child born in this country of German parents a citizen?" Sen. Trumbull, Cong. Globe, 39th Cong., 1st Sess. 497 (1866).
"I am afraid that we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens."' Sen. Trumbull, Cong. Globe, 39th Cong. 1st Sess. 498 (1866)
"I have already said that in my opinion birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States, and that the bill now under consideration is but declaratory of what the law now is." Sen. Trumbull, Cong. Globe, 39th Cong. 1st session. 600 (1866)
Trumbull states the proposition in matter-of-fact, almost joking terms: children born here to alien (immigrant) parents have obviously been treated as citizens, otherwise one would have to conclude whole areas with heavy concentrations of immigrants would a few citizens.
Immigrants who have not naturalized are still aliens; are still subject potentially to claims of the country of their nationality. Yet, Sen. Trumbull makes clear the jurisdiction which the U.S. holds while such persons reside here is complete and sufficient enough to make their children citizens -- and such was true even before enactment of the legislation then being debated.
Trumbull's colleague, Jacob Howard is in accord:
"A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws..... They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States, as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States." Sen. Howard, Cong. Globe, 39th Cong., lst Sess. 2765 (1866).
Howard refers to the "natural law" by which all persons born within the jurisdiction of a nation are considered "subjects or citizens" of that country. The expression "subjects or citizens" obviously is a reference to the common law which applied both to England and later the U.S. The very common law of England which Horace Gray later says provides the nomenclature by which our Constitutional terms (e.g., "natural born citizen") are to be understood.
You bring up Sen. Bingham, who, while not involved in the drafting of the citizenship clause of the 14th Amendment, nonetheless subscribes to the same principle set forth in Wong Kim Ark:
"Who does not know that every person born within the limits of the Republic is, in the language of the Constitution, a natural-born citizen." Rep. Bingham, Cong. Globe, 40th Cong, 2nd Sess, p. 2212 (1869)
Oh, and I see that your reply conveniently and completely ignored the comments from the House Judiciary Committee Chairman:
"It is in vain we look into the Constitution of the United States for a definition of the term "citizen." It speaks of citizens, but in no express terms defines what it means by it. We must depend upon the general law relating to subject and citizens recognized by all nations for a definition, and that must lead to a conclusion that every person born in the United States is a natural born citizen of such States, except it may be that children born on our soil to temporary sojourners or representatives of foreign Governments are native born citizens of the United States. Thus it is expressed by a writer on the Constitution of the United States: "Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity." Rawle on the Constitution, pg. 86." Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1115 - 1117 (1866).
Debate is a lot easier when you simply ignore the authorities that blow your argument out of the water. But try to evade all you wish; I'll keep pointing them out to you.
The jurisdiction clause is specifically stated to pertain to political rights and allegiance, not territorial bounds.
Wrong! If you taken into consideration all of their remarks, these eminent leaders of the 39th Congress makes abundantly clear that aliens residing within the territorial United States (who were not diplomats or their family members) were within the jurisdiction of the U.S. and as such their children born here were citizens.
Ignoring legislative history Gray "presumes" the intent of the jurisdiction clause:
The only person ignoring things here is you. As I pointed out on my prior post, what Gray concludes (that the citizenship clause of the 14th Amendment incorporated and declared the existing law, and that the existing law of "natural born citizen" was jus soli) is EXACTLY what Cong. James F. Wilson laid out in his lengthy floor exposition and legal report to the House.
Now, go back, read what he says, and then comment about that this time, rather than just ignoring it again.
Gray states "It is impossible [] to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States'" - yet the Framers precisely made that distinction. They made clear that "subject to the jurisdiction thereof" pertains to "political rights" and "allegiance".
But they didn't make that distinction as to immigrant aliens, whom they treated (under the "natural law" of the common law making children of such citizens -- see Sen. Howard's remarks above) as owing allegiance to the sovereign within whose domain and under whose protection the resided.
Equally clear and obvious is that not all persons "within the jurisdiction" of the United States have political rights.
Right. Indigenous persons with allegiance to self-governing tribes were deemed to hold no rights, were deemed to be outside the jurisdiction of the U.S., and their children were not citizens. The legislative history makes absolutely clear that the framers treated the situation of indigenous tribes differently from aliens coming from Europe and other parts. That "total and complete allegiance" language was used to assure that "Indians" who had not renounced tribal loyalty were treated like foreign diplomats.
It's a distinction that Horace Gray makes clear (Elk v. Wilkins; Wong Kim Ark). And it's a distinction you're not grasping as you cherry-pick quotes from the legislative history.
It is quite clear that Judge Gaston's references to "our law" and "our constitution" are references to the statutes and Constitution of North Carolina.
True, but irrelevant in the absence of a demonstration that terms used at the state level ("citizen" or "natural born citizen") differed from the same terms used at the federal/Constitutional level. You don't even try to make that case. Nor could you. Chancellor Sandford in Lynch v. Clarke (a case cited by Gray three times) did the exhaustive analysis showing the terminology was uniformly applied.
But again, your cherry-picking technique is easily exposed. Immediately following the cite to State v. Manuel, Gray cites to Chancellor Kent:
Natives 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. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while [p665] abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.
2 Kent Com. (6th ed.) 39, 42. And he elsewhere says:
And if, at common law, all human beings born within the ligeance of the King, and under the King's obedience, were natural-born subjects, and not aliens, 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. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.
Kent refers explicitly to those born "in the United States," so your disingenuous evasion using just the North Caroina case won't work here.
And back to other earlier points you skipped past.
Was Mr. Wong Kim Ark a natural born citizen or a naturalized citizen? He had to be a natural born citizen since Chinese could not be naturalized, right? And Gray said that the "same rule" by which all persons born in England to alien parents were natural born subjects held true here as well, which means all persons born in the U.S. to alien parents are natural born citizens, right?
Gray's use of English common law is inappropriate
How can that be when 1) within the legislative history of the 39th Congress English law is specifically referenced (see remarks of Chairman Wilson) and 2) Smith v. Alabama, a case reported 10 years earlier had laid out the same rule by which our Constitutional terms are to be understood in light of the language and history of the English common law?
How on earth can you argue that Gray was wrong and manage to keep a straight face?
“does he not meet the OR clause after “natural bornâ€?”
Nope. Unless he was born before the adoption of the Constitution.
“Surely you are not saying that the framers intended to DIS-INCLUDE those who are born AFTER the adoption of the constitution?”
There were no Natural Born Citizens until after the Constution. All citizens are not Natural Born Citizens.
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