Your citation isn't from the opinion of the court. This was a concurring opinion, but one that different on the matter of alienage. The majority opinion said:
2. If born after 4 July, 1776, and before 15 September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority, which never having been done, he remains a British subject and disabled from inheriting the land in question.
The part you quoted from Justice Story was qualified as only HIS OPINION and on the basis of the parents having an intention to become PERMANENT members of the state/colony:
Upon the whole, upon the point of alienage as presented in the case, the following are my opinions under the various postures of the facts.
2. That if he was born after the 4th of July 1776, and before the 15th of September 1776, he was born an American citizen; and that it makes no difference in this respect, whether or not parents had at the time of his birth, elected to become citizens of the state of New York, by manifesting an intention of becoming permanently members thereof, in the sense which I have endeavoured to explain.
But, if that's not enough for you, look what Story says only a couple of sentences AFTER the part you quoted:
If he was born after 15 September, 1776, and his parents did not elect to become members of the State of New York, but adhered to their native allegiance at the time of his birth, then he was born a British subject.
Notice how the citizenship of the child is now DEPENDENT on the allegiance of the parents DESPITE birth on U.S. soil. Your own source isn't particularly consistent. Sorry.
Then you quote Schneider v. Rusk, which uses different terms: native born as opposed to natural born, the latter of which the court puts in quotation marks. But that point aside, this quote says nothing about the citizenship of the parents in relation to who is natural born nor even native born.
As for the Rogers v. Bellei case, it says:
3. Apart from the passing reference to the "natural born Citizen" in the Constitution's Art. II, § 1, cl. 5, we have, in the Civil Rights Act of April 9, 1866, 14 Stat. 27, the first statutory recognition and concomitant formal definition of the citizenship status of the native born:
"[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. . . ."
This, of course, found immediate expression in the Fourteenth Amendment, adopted in 1868, with expansion to "[a]ll persons born or naturalized in the United States. . . ."
Note that this says the first formal definition of "native born" is found in the Civil Rights Act of 1866, which is dependent on jus soli AND jus sanguinis to the point that the parents cannot be subject to any foreign power. The decision says the 14th amendment is an expansion of that citizenship definition. It's a pretty poor argument to claim that jus soli = natural born when there's no definition that specifically says this and the other dicta shows that the status of the parents has always been part of the consideration for the citizenship status of the child ... even up to the 14th amendment, which WKA said included the criteria of permanent domicil and residence.
That if he was born after the 4th of July 1776, and before the 15th of September 1776, he was born an American citizen; and that it makes no difference in this respect, whether or not parents had at the time of his birth, elected to become citizens of the state of New York, by manifesting an intention of becoming permanently members thereof,
On your next point you quote
If he was born after 15 September, 1776, and his parents did not elect to become members of the State of New York, but adhered to their native allegiance at the time of his birth, then he was born a British subject.Read a little further and see why birth after September 15th makes him a British subject:
As early as 15 September, 1776, his parents joined the British troops in New York and remained under the protection of the British arms during the war.Note that birth after September 15 1776 would mean he was born on British occupied territory, under the protection of the British occupiers. So your statement Notice how the citizenship of the child is now DEPENDENT on the allegiance of the parents DESPITE birth on U.S. soil. Your own source isn't particularly consistent. Sorry. is an error – if he was born September 15th or later, he was not born “under the ligeance of” the United States, but rather of Britain.
It's a pretty poor argument to claim that jus soli = natural born when there's no definition that specifically says this There are many. here’s one, and and another and even plain old Webster’s dictionary. The English system is also explained in WKA
Children, born in England, of such aliens were therefore natural-born subjects. [the preceding sentence makes it clear that “such aliens” were “aliens in amity,” meaning not invading enemies]there’s also NGUYEN v. INS where Justice Scalia questioned the appealing lawyer
- Justice Scalia: … I mean, isn’t it clear that the natural born requirement in the Constitution was intended explicitly to exclude some Englishmen who had come here and spent some time here and then went back and raised their families in England? .
- They did not want that. .
- They wanted natural born Americans. .
- [Ms.]. Davis: Yes, by the same token….
- Justice Scalia: That is jus soli, isn’t it? .
and the other dicta shows that the status of the parents has always been part of the consideration for the citizenship status of the child ... even up to the 14th amendment, which WKA said included the criteria of permanent domicil and residence.
I may have missed it, but where does it say they must be permanently domiciled? From WKA
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 StatesBy the way, are you saying Marco Rubio’s parents weren’t domiciled in the US?