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.
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?