Further, nothing herein affects the rights of Congress to expel aliens, that is, the parents. But Congress may not legislate with a view to denying "domicile" in an attempt to amend the Constitution which prescribes jus soli rights of birth citizenship as a constitutional matter free of any interference by the Congress which, of course, remains free to regulate naturalization. I am of the opinion that the jus soli foundation for American Citizenship is false. That our Break from England in 1776 effectuated a break with it's feudal based rules governing subjects , and that we thereafter did not follow English Common law on this matter. There is quite a bit of evidence to support this position.
I am likewise of the opinion that the reason so many people today believe we followed English Common law was because so many people in the early 19th Century were asserting that we did; Specifically William Rawle in his widely distributed book " A View of the Constitution."
But Rawle was not a Delegate at the Constitutional convention, nor was he a member of any State's ratifying legislature. He was the Son of a British Loyalist during the War for Independence, and received his legal training in England, where he would have been taught nothing else. In addition to that, I have evidence that indicates Rawle deliberately lied about this in the writing of his book.
Most of the people who make the claim that we follow English Common law were not Delegates or Legislators and had nothing to do with adopting the US Constitution.
The Only exception of which I am aware is James Madison during his defense of William Loughton Smith, but Madison himself contradicted this position as President, so you could say he's on both sides of the issue, though I would say his acts as President count for more than his words while trying to support a political ally in Congress.
The people who WERE Constitutional Delegates or members of the Ratifying Legislature indicate that we did NOT follow English Common Law, but rather followed Natural Law as related by Emmerich Vattel.
I would point out that after the treaty of Paris, there were Hundreds of thousands of British Loyalists and their children who did not suddenly become American just because they were born in the US after July 4, 1776. The rule was never applied to Indians, and it was also never applied to slaves.
The jus soli principle is conspicuous in regards to how many exceptions there were to it throughout American History. It had so many exceptions that they had to enact a 14th amendment just to create a de facto jus soli rule.
Obviously Slaves were exempt to it till 1868, and Indians were exempt to it till 1924. A rule with many millions of exemptions is hardly a rule at all.
In reading the article I thought for a while that the point of vulnerability in the author's thesis was is jump from "subject to the jurisdiction," to "allegiance," to "domicile." In other words, if you could break the syllogism at the jump between allegiance and domicile his whole approach breaks down but he does support the argument rather well.
The problem is the fourteenth amendment was adopted in 1868 not in 1787. The author's thesis is to the effect that geography determines unless there is an absence of domicile. That puts us back in nearly as tight a box as the conventional reading which says that all non-diplomat, non-soldier births are citizens leaving us with only tourism babies.
There is another problem, if we reject the author's argument entirely and say jus soli means nothing except what Congress says it means, you don't really have birth citizenship at all which is a an exceedingly strained interpretation of the fourteenth amendment and clearly contrary to the holding of the Wong case.
