That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later ...
The Slaughterhouse Cases listed a couple of basic exceptions to the subject clause of the 14th amendment. Gray makes a point here that this list can't be assumed to be comprehensive and that you have to look at other cases when certain aspects of an issue aren't examined. In Minor, they defined NBC. In Elk v. Wilkins, they excluded Indians from the subject clause of the 14th amendment. Neither of these were considered in Slaughterhouse. But the same judges in Slaughterhouse that were divided were NOT divided in Minor. They UNANIMOUSLY rejected Virginia Minor's claim of being a 14th amendment citizen because she met the court's definition of natural born. This is why Gray says the court was committed to excluding NBCs ("all children born in the United States of citizens") from the citizen clause of the 14th amendment. In the next paragraph he gives the Minor definition of NBC. In the paragraph after that, he summarized the Minor definition, citing both JUS SOLI and JUS SANGUINIS criteria:
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.
In the next paragraph (now we have at least four paragraphs that now support each other), Gray cites Elk:
The only adjudication that has been made by this court upon the meaning of the clause, "and subject to the jurisdiction thereof," in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94, in which it was decided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of a State but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen either by the United States or by the State, was not a citizen of the United States, as a "person born in the United States and subject to the jurisdiction thereof" within the meaning of the clause in question.
That decision was placed upon the grounds that the meaning of those words was not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;
From this point forward, Gray does NOT say anything more about natural-born citizens. He had a definition that could NOT be applied to Wong Kim Ark.
Sections 2-4 conclude:
“Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.”
So, before the 14th was adopted, “all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States”.
Yes, I know you pretend native born and natural born are not equivalent, but they are used interchangeably by the court.
For example, “treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,
and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”
What does that say? “a child born in England of alien parents was a natural-born subject” and then “such a child “was a native-born subject”. The same child is called natural-born & native-born.
Again:
The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . 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 as a “subject of the king” is now “a citizen of the State.”
Note they use “native-born British subjects” in the same manner they use NBS.
Again:
Chancellor Kent, in his Commentaries, speaking of the “general division of the inhabitants of every country under the comprehensive title of aliens and natives,” says:
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. . . “
Natives uses the same definition as NBC.
Section 5 begins a new section in the decision:
“V. In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.”
Now attention switches from NBC/NBS/native born subject/citizen to the 14th.
You proceed to get it backwards.
You say, “Gray makes a point here that this list can’t be assumed to be comprehensive and that you have to look at other cases when certain aspects of an issue aren’t examined.”
Actually, the Slaughterhouse case said that “The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Notice a distinct change from everything else in WKA. Before it was only the kids of ambassadors & foreign armies who were excluded. Slaughterhouse expanded that to include the children of “citizens or subjects of foreign States” - and WKA overturns that part of Slaughterhouse.
First, it points out that the phrase appears as dicta, and not very good dicta at that. It says:
“This was wholly aside from the question in judgment and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities, and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase”
and
“In weighing a remark uttered under such circumstances, it is well to bear in mind the often quoted words of Chief Justice Marshall:
It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.”
They then go on to show that even the court that decided the Slaughterhouse case did not believe that “all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment” by citing your favorite: Minor.
But they cite the entire paragraph, and their point is that the court that decided the Slaughterhouse case had NOT excluded children born of alien parents from citizenship, in spite of what they had written earlier.
Anyone prior to WKA could use Slaughterhouse as a basis to reject citizenship for the children of aliens. WKA overturns that basis, rejecting it.
They then turn to Elk v. Wilkins, and point out it only applies to Indians, who are considered members of a nation inside the USA boundaries.
These are cases that would weaken the idea that anyone born in the USA was a citizen. After reviewing (and in the Slaughterhouse case, rejecting), the court concluded:
“The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”
It is worth pointing out that sections 2 & 3 don’t mention the 14th Amendment. Section 4 mentions it 3 times - twice as a date (”at the time of the adoption of the Fourteenth Amendment “) and once in the final paragraph of section 4:
“Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.”
Sections 2,3 &4 were not about the 14th Amendment at all. Sections 5 & 6 use it in detail.
In Minor, you write:
“They UNANIMOUSLY rejected Virginia Minor’s claim of being a 14th amendment citizen because she met the court’s definition of natural born.”
Wrong, as usual. They said the passing of the 14th Amendment did not create her a citizen since she already WAS a citizen beyond any question. There is not a 14th Amendment citizenship, and a separate NBC citizenship.
As the courts have said time & again, there are two sources of citizenship, and only two - birth, and naturalization.
Thus you have in Kwock Jan Fat v. White, 253 U.S. 454 (1920)
“It is not disputed that if petitioner is the son of Kwock Tuck Lee [Chinese] and his wife, Tom Ying Shee [also Chinese], he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U.S. 649. But, while it is conceded that he is certainly the same person who, upon full investigation, was found, in March, 1915, by the then Commissioner of Immigration, to be a natural born American citizen, the claim is that that Commissioner was deceived, and that petitioner is really Lew Suey Chong, who was admitted to this country in 1909 as a son of a Chinese merchant, Lew Wing Tong, of Oakland, California.”
And in Minor:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that
“No person except a natural-born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of President,
and that Congress shall have power “to establish a uniform rule of naturalization.” Thus, new citizens may be born or they may be created by naturalization.”
Elk:
“This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.”
In Baumgartner v. United States, 322 U.S. 665 (1944):
“The naturalized citizen has as much right as the natural born citizen to exercise the cherished freedoms of speech, press, and religion, and, without “clear, unequivocal, and convincing” proof that he did not bear or swear true allegiance to the United States at the time of naturalization, he cannot be denaturalized.”
Two types of citizenship - naturalized, and NBC.
In Oyama v. California, 332 U.S. 633 (1948)
“But the same can be said of an eligible alien or a natural born citizen.”
In Klapprott v. United States, 335 U.S. 601 (1949)
“No such procedures could strip a natural-born citizen of his birthright or lay him open to such a penalty...This case, however, presents squarely the issue whether, beyond any question of burden or weight of proof, the ordinary civil procedures can suffice to take away the naturalized citizen’s status and lay him open to permanent exile, with all the fateful consequences following for himself and his family, often, as in this case, native-born Americans. “
Native and natural born are interchanged, and the alternative to being native/natural born is to be naturalized. Two categories.
And they went on:
“If, in deference to the Court’s rulings, we are to continue to have two classes of citizens in this country, one secure in their status and the other subject at every moment to its loss by proceedings not applicable to the other class, cf. Schneiderman v. United States, supra, concurring opinion at 320 U.S. 167, Knauer v. United States, supra, dissenting opinion at 328 U.S. 678, I cannot assent to the idea that the ordinary rules of procedure in civil causes afford any standard sufficient to safeguard the status given to naturalized citizens. If citizenship is to be defeasible for naturalized citizens other than by voluntary renunciation or other causes applicable to native-born citizens...”
And Schneider v. Rusk, 377 U.S. 163 (1964)
“We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1.”
Native & natural born are used interchangeably, and there are 2 classes: born & naturalized.