“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization ...” Right. Citizens can be added by birth, but some are by statutory means, not natural born.
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” Right. Minor is saying the definition of ‘natural born citizen’ is extraconstitutional ... OUTSIDE of the Constitution, and they proceed to cite Vattel’s definition nearly word for word. Neither the 14th amendment nor any naturalization law changes this..
“For the purposes of this case it is not necessary to solve these doubts.” It’s not ‘necessary’ but they solve the doubts by reviewing naturalization laws and the necessity of alien fathers to naturalize in order for their children to become citizens; or later to have started the process. Obama’s father did not naturalize.
“So Minor never tackles the question of citizenship by birth from non-citizen parents. This is why the question still existed at the time of WKA. This was after the 14th, so a lot depended on the meaning of under the jurisdiction.” WKA answers the question by saying the parents, if not citizens, must have permanent domicil and residence, and the offspring is then a ‘citizen of the United States’ but not a ‘natural born citizen.’ Obama’s father was not a permanent resident and arguably, neither was his mother.
“Minor is saying the definition of ‘natural born citizen’ is extraconstitutional ... OUTSIDE of the Constitution, and they proceed to cite Vattel’s definition nearly word for word.”
Ummm...what they actual SAID is, “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar...” Notice they refer to common law, which Vattel mirrors. For a couple of paragraphs earlier they wrote, “For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words “subject,” “inhabitant,” and “citizen” have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government...” Notice the link between common law terms of subject and citizen, and then think about the use in WKA of natural born subject in determining citizenship.
They affirm, as they did in WKA 20 years later, that COMMON LAW is the source of understanding, not Vattel.
““For the purposes of this case it is not necessary to solve these doubts.” It’s not ‘necessary’ but they solve the doubts by reviewing naturalization laws and the necessity of alien fathers to naturalize in order for their children to become citizens; or later to have started the process.”
Incorrect. They were concerned with the question of citizenship for a woman born of citizen parents, and didn’t feel a need to determine citizenship of alien parentage. If they had addressed it then, they would not have needed to do so in WKA 20 years later.
“WKA answers the question by saying the parents, if not citizens, must have permanent domicil and residence...”
No. The concern of WKA was primarily racial: “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 [p675] 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. 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.”
The question in WKA wasn’t even if alien parentage prevented citizenship, but CHINESE parentage. For they noted the purpose of the 14th, saying, “Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States.”
Again, it is LOCATION they refer to, not parentage. By the time of WKA, it was accepted that all whites and blacks born in the USA are citizens, and that this is true even if their parents are not citizens. They note an exception for Indians, but say, “The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.”
So again, it is primarily race before the court, and they assume that for most races, birth = citizenship, unless the child of an ambassador.
They eventually summarize many pages of argument with:
“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.” Notice they do NOT include a requirement of permanent domicile.
And by this time, they are also no longer arguing based on common law meanings of natural born subject, and thus natural born citizen falls from their concern.
“Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are “ subject to the jurisdiction thereof” in the same sense as all other aliens residing in the United States.”
The court does NOT require permanent domicile, but says the Chinese are held to the same standard as white - are the parents in the US at the time of birth, while not an ambassador or one of a handful of other classes not subject to the jurisdiction. Thus tourists are, as the dissent noted, parents of US citizens unless the parent is here to represent another country.