Judge: Gay couple’s child was US citizen at birth in Canada

SILVER SPRING, Md. (AP) — A federal judge ruled Wednesday that the State Department must recognize that the daughter of a gay couple in Maryland has been a U.S. citizen since her birth in Canada via a surrogate last year.

U.S. District Judge Theodore Chuang rejected the State Department’s position that the child was born out of wedlock because one of her married parents is not her biological parent.

The girl’s parents, Roee Kiviti and Adiel Kiviti, sued after the State Department denied her application for a U.S. passport. The couple argued that their equal protection rights were violated by a State Department policy requiring that both parents be biologically related to a child in order to consider that the child was born in wedlock.

“I’ll go with the common law precedent.”

Vattel's book in French pertains to international law, not common law.

common law. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASE LAW.

Black's Law Dictionary, 11th Ed.

Hell, Plyer vs Doe, is the case wherein a FOOTNOTE written by Justice Brennan is how we got BIRTHRIGHT CITIZENSHIP for illegal aliens!!!!

We get citizenship for children of illegal aliens originally from English common law, as later enshrined in the 14th Amendment.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...." 14th Amdt.

Was the child born in the United States? Was the child born subject to the jurisdiction of the United States? No other question is relevant unless, or until, the law is changed. The status of the parents is not mentioned and is irrelevant. The child may be born in a detention center of two illegal aliens awaiting deportation and the child is a natural born U.S. citizen.

Hell, Plyer vs Doe, is the case wherein a FOOTNOTE written by Justice Brennan is how we got BIRTHRIGHT CITIZENSHIP for illegal aliens!!!!

As you do not cite the page of Plyler v. Doe, I will go for Footnote 10 on page 457 U.S. 211 (1982):

¹⁰ Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States .... ." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], 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."' Id., at 687.
Justice Gray concluded that "[e]very 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." Id., at 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouvé, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).

This footnote attributes the citizenship of children born in the United States of aliens to the unanimous Opinion of the Court in Wong Kim Ark in 1898. However, Wong Kim Ark at 169 U.S. 702 clearly states, "Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization."

As the Syllabus of Plyler v. Doe demonstrates, the case did not hold citizenship for illegal alien children, but the right to attend school as illegal aliens.

Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 210-230.
(a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 210-216.

Total bs, but the state department likely won’t appeal allowing this crap to stand...

I believe the State Department will seek to challenge this. Who were the child's parents at the time of birth may be a question for Canadian law. It's a mess.

The current State Department policy, as published, speaks to Assisted Reproductive Technology birth citizenship.

https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-3

Policy Manual > Volume 12 - Citizenship and Naturalization > Part H - Children of U.S. Citizens > Chapter 3 - United States Citizens at Birth (INA 301 and 309)
State Department
Policy Manual
Chapter 3 - United States Citizens at Birth (INA 301 and 309)
A. General Requirements for Acquisition of Citizenship at Birth
A person born in the United States who is subject to the jurisdiction of the United States is a U.S. citizen at birth, to include a person born to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe. [1]
In general, a person born outside of the United States may acquire citizenship at birth if:

The person has at least one parent who is a U.S. citizen; and
The U.S. citizen parent meets certain residence or physical presence requirements in the United States or an outlying possession prior to the person’s birth in accordance with the pertinent provision. [2]

A person born abroad through Assisted Reproductive Technology (ART) to a U.S. citizen gestational mother who is not also the genetic mother acquires U.S. citizenship at birth under INA 301 or INA 309 if:

The person’s gestational mother is recognized by the relevant jurisdiction as the child’s legal parent at the time of the person’s birth; and
The person meets all other applicable requirements under either INA 301 or INA 309. [3]

Until the Act of October 10, 1978, persons who had acquired U.S. citizenship through birth outside of the United States to one U.S. citizen parent had to meet certain physical presence requirements to retain their citizenship. This legislation eliminated retention requirements for persons who were born after October 10, 1952. There may be cases where a person who was born before that date, and therefore subject to the retention requirements, may have failed to retain citizenship. [4]
An officer should determine whether a person acquired citizenship at birth by referring to the applicable statutory provisions and conditions that existed at the time of the person’s birth. These provisions have been modified extensively over the years. [5] The following sections provide the current law.
B. Child Born in Wedlock [6]
1. Child of Two U.S. Citizen Parents [7]
A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

Both of the child’s parents are U.S. citizens; and

At least one parent had resided in the United States or one of its outlying possessions.

2. Child of U.S. Citizen Parent and U.S. National [8]
A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

One parent is a U.S. citizen and the other parent is a U.S. national; and

The U.S. citizen parent was physically present in the United States or one of its outlying possessions for a continuous period of at least one year.

3. Child of U.S. Citizen Parent and Alien Parent [9]
A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

One parent is an alien and the other parent is a U.S. citizen; and

The U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age.

Time abroad counts as physical presence in the United States if the time abroad was:

As a member of the U.S. armed forces in honorable status;?

Under the employment of the U.S. government or other qualifying organizations; or

As a dependent unmarried son or daughter of such persons.

4. Child of a U.S. Citizen Mother and Alien Father [10]
A child born outside of the United States and its outlying possessions acquires citizenship at birth if:

The child was born before noon (Eastern Standard Time) May 24, 1934;

The child’s father is an alien;

The child’s mother was a U.S. citizen at the time of the child’s birth; and

The child’s U.S. citizen mother resided in the United States prior to the child’s birth.

[snip]

Also relevant to Child Citizenship:

https://fam.state.gov/FAM/08FAM/08FAM030110.html

8 FAM 301.10; ACQUISITION OF U.S. CITIZENSHIP UNDER THE CHILD CITIZENSHIP ACT
(CT:CITZ-37; 06-08-2020)
(Office of Origin: CA/PPT/S/A)

That’s exactly how I thought it worked. I am foreign born. My father was on gov’t assignment in Spain. He met and married my mother in Spain. I was born there. The only reason I was born a US citizen was because my father was a us govt employee. I have a state dept form that reads ‘US citizen born abroad’.

https://www.uscis.gov/legal-resources/immigration-and-nationality-act

The law applicable to your claim to citizenship was probably the Immigration and Nationality Act of June 27, 1952; H.R. 567; 66 Stat. 163. Note that amendments after your date of birth do not apply to you.

Pub. L. 103–416, title I, §102(e), as added by Pub. L. 104–208, div. C, title VI, §671(b)(2), Sept. 30, 1996, 110 Stat. 3009–721 , which provided that in applying amendment made by subsection (a), amending this section, to children born before Nov. 14, 1986, any reference in matter inserted by such amendment to "five years, at least two of which" was deemed a reference to "10 years, at least 5 of which", was repealed by Pub. L. 105–38, §1, Aug. 8, 1997, 111 Stat. 1115 , effective as if included in the enactment of Pub. L. 103–416.

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1433&num=0&edition=prelim

§1433. Children born and residing outside the United States; conditions for acquiring certificate of citizenship
(a) Application by citizen parents; requirements
A parent who is a citizen of the United States (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under section 1431 of this title. The Attorney General shall issue a certificate of citizenship to such applicant upon proof, to the satisfaction of the Attorney General, that the following conditions have been fulfilled:
(1) At least one parent (or, at the time of his or her death, was) is¹ a citizen of the United States, whether by birth or naturalization.
(2) The United States citizen parent-
(A) has (or, at the time of his or her death, had) been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years; or
(B) has (or, at the time of his or her death, had) a citizen parent who has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.
(3) The child is under the age of eighteen years.
(4) The child is residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application).
(5) The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.
(b) Attainment of citizenship status; receipt of certificate
Upon approval of the application (which may be filed from abroad) and, except as provided in the last sentence of section 1448(a) of this title, upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this chapter of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship.
(c) Adopted children
Subsections (a) and (b) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 1101(b)(1) of this title.
(d) Children of Armed Forces members
In the case of a child of a member of the Armed Forces of the United States who is authorized to accompany such member and reside abroad with the member pursuant to the member's official orders, and is so accompanying and residing with the member-
(1) any period of time during which the member of the Armed Forces is residing abroad pursuant to official orders shall be treated, for purposes of subsection (a)(2)(A), as physical presence in the United States;
(2) subsection (a)(5) shall not apply; and
(3) the oath of allegiance described in subsection (b) may be subscribed to abroad pursuant to section 1443a of this title.
(June 27, 1952, ch. 477, title III, ch. 2, §322, 66 Stat. 246 ; Pub. L. 95–417, §6, Oct. 5, 1978, 92 Stat. 918 ; Pub. L. 97–116, §18(m), (n), Dec. 29, 1981, 95 Stat. 1620 , 1621; Pub. L. 99–653, §16, Nov. 14, 1986, 100 Stat. 3658 ; Pub. L. 100–525, §8(l), Oct. 24, 1988, 102 Stat. 2618 ; Pub. L. 101–649, title IV, §407(b)(2), (c)(6), (d)(5), Nov. 29, 1990, 104 Stat. 5040–5042 ; Pub. L. 102–232, title III, §305(m)(3), Dec. 12, 1991, 105 Stat. 1750 ; Pub. L. 103–416, title I, §102(a), Oct. 25, 1994, 108 Stat. 4306 ; Pub. L. 106–139, §1(b)(2), Dec. 7, 1999, 113 Stat. 1697 ; Pub. L. 106–395, title I, §102(a), Oct. 30, 2000, 114 Stat. 1632 ; Pub. L. 107–273, div. C, title I, §11030B, Nov. 2, 2002, 116 Stat. 1837 ; Pub. L. 110–181, div. A, title VI, §674(b), Jan. 28, 2008, 122 Stat. 186 .)
References in Text
This chapter, referred to in subsec. (b), was in the original, "this Act", meaning act June 27, 1952, ch. 477, 66 Stat. 163 , known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.
Amendments
2008-Subsec. (d). Pub. L. 110–181 added subsec. (d).
2002-Subsec. (a). Pub. L. 107–273, §11030B(1), in introductory provisions, inserted "(or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian)" after "citizen of the United States" and substituted "such applicant" for "such parent".
Subsec. (a)(1). Pub. L. 107–273, §11030B(2), inserted "(or, at the time of his or her death, was)" after "parent".
Subsec. (a)(2)(A). Pub. L. 107–273, §11030B(3)(A), inserted "(or, at the time of his or her death, had)" after "(A) has".
Subsec. (a)(2)(B). Pub. L. 107–273, §11030B(3)(B), inserted "(or, at the time of his or her death, had)" after "(B) has".
Subsec. (a)(4). Pub. L. 107–273, §11030B(4), amended par. (4) generally. Prior to amendment, par. (4) read as follows: "The child is residing outside of the United States in the legal and physical custody of the citizen parent, is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status."
Subsec. (a)(5). Pub. L. 107–273, §11030B(5), added par. (5).
2000-Pub. L. 106–395 amended section catchline and text generally, revising and restating provisions relating to acquisition of certificate of citizenship for certain children born outside the United States.
1999-Subsec. (a)(4). Pub. L. 106–139 substituted "16 years (except to the extent that the child is described in clause (ii) of subparagraph (E) or (F) of section 1101(b)(1) of this title)" for "16 years" and "either of such subparagraphs" for "subparagraph (E) or (F) of section 1101(b)(1) of this title".
1994-Pub. L. 103–416 amended section generally, substituting present provisions for former provisions which related to: in subsec. (a) naturalization on application of citizen parents; in subsec. (b) adopted children; and subsec. (c) specified period of residence for adopted children.
1991-Pub. L. 102–232 amended section catchline.
1990-Subsec. (a). Pub. L. 101–649, §407(c)(6), substituted "applying" for "petitioning" and "application" for "petition".
Subsec. (c). Pub. L. 101–649, §407(d)(5), substituted "Attorney General" for first reference to "naturalization court" in cl. (2)(C).
Pub. L. 101–649, §407(c)(6), substituted "applies" for "petitions".
Pub. L. 101–649, §407(b)(2), substituted "within a State or a district of the Service in the United States" for "within the jurisdiction of the naturalization court".
1988-Subsec. (a). Pub. L. 100–525 repealed Pub. L. 99–653, §16. See 1986 Amendment note below.
1986-Subsec. (a). Pub. L. 99–653, §16, which inserted "unmarried and" after "be naturalized if", was repealed by Pub. L. 100–525.
1981-Subsec. (b). Pub. L. 97–116, §18(m), substituted "an adopted child only if the child" for "a child adopted while under the age of sixteen years who".
Subsec. (c). Pub. L. 97–116, §18(n), added subsec. (c).
1978-Subsec. (b). Pub. L. 95–417 substituted provisions making subsec. (a) of this section applicable to adopted children for provisions making subsec. (a) of this section inapplicable to adopted children.
Effective Date of 2008 Amendment
Amendment by Pub. L. 110–181 effective Jan. 28, 2008, and applicable to any application for naturalization or issuance of a certificate of citizenship pending on or after such date, see section 674(d) of Pub. L. 110–181, set out as a note under section 1430 of this title.
Effective Date of 2000 Amendment
Amendment by Pub. L. 106–395 effective 120 days after Oct. 30, 2000, and applicable to individuals who satisfy the requirements of this section or section 1431 of this title as in effect on such effective date, see section 104 of Pub. L. 106–395, set out as a note under section 1431 of this title.
Effective Date of 1994 Amendment
Pub. L. 103–416, title I, §102(d), Oct. 25, 1994, 108 Stat. 4307 , provided that: "The amendments made by this section [amending this section and section 1452 of this title] shall take effect on the first day of the first month beginning more than 120 days after the date of the enactment of this Act [Oct. 25, 1994]."
Effective Date of 1991 Amendment
Pub. L. 102–232, title III, §305(m), Dec. 12, 1991, 105 Stat. 1750 , provided that the amendment made by section 305(m) is effective as if included in section 407(d) of the Immigration Act of 1990, Pub. L. 101–649.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100–525 effective as if included in the enactment of the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653, see section 309(b)(15) of Pub. L. 102–232, set out as an Effective and Termination Dates of 1988 Amendments note under section 1101 of this title.
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–116 effective Dec. 29, 1981, see section 21(a) of Pub. L. 97–116, set out as a note under section 1101 of this title.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title. Application of 1994 Amendment
Pub. L. 103–416, title I, §102(e), as added by Pub. L. 104–208, div. C, title VI, §671(b)(2), Sept. 30, 1996, 110 Stat. 3009–721 , which provided that in applying amendment made by subsection (a), amending this section, to children born before Nov. 14, 1986, any reference in matter inserted by such amendment to "five years, at least two of which" was deemed a reference to "10 years, at least 5 of which", was repealed by Pub. L. 105–38, §1, Aug. 8, 1997, 111 Stat. 1115 , effective as if included in the enactment of Pub. L. 103–416.
¹ So in original. The word "is" probably should appear after "parent".

The first sentence applies to native Americans and slaves. (Note the date of amendment).

This restrictive contention is incorrect. Chinese and others were explicitly considered. Wong Kim Ark was the natural born U.S. citizen child of two Chinese ineligible for naturalization. the See Wong Kim Ark, at 169 U.S. 698-99:

The fourteenth amendment of the constitution, as originally framed by the house of representatives, lacked the opening sentence. When it came before the senate in May, 1866, Mr. Howard, of Michigan, moved to amend by prefixing the sentence in its present form (less the words 'or naturalized'), and reading: 'All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.' Mr. Cowan objected, upon the ground that the Mongolian race ought to be excluded, and said, 'Is the child of the Chinese immigrant in California a citizen?' 'I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that state and the other Pacific states to manage them as they may see fit, they may be useful; but I would not tie their hands by the constitution mgone from the country, and is beyond its jurisdiction them hereafter from dealing with them as in their wisdom they see fit.' Mr. Conness, of California, replied: 'The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.' 'We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the constitution of [169 U.S. 649, 699] the United States to be entitled to civil rights and to equal protection before the law with others.' Cong. Globe, 39th Cong. 1st Sess. pt. 4, pp. 2890-2892. It does not appear to have been suggested, in either house of congress, that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the fourteenth amendment.
Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the amendment to the Chinese race was considered and not overlooked.

- - - - - - - - - - - - - - - - - - - -

The second sentence refers to people under another jurisdiction. For example foreign diplomats in the U.S. at time of birth.
Another example would be immigrants born in the U.S. with two parents w/o American citizenship, therefore not subject to the laws/jurisdiction of the U.S..

Accredited diplomats yes; the rest is readily shown to be in direct conflict with the binding Supreme Court precedent of Wong Kim Ark.

169 U.S. 682:

The real object of the fourteenth amendment of the constitution, in qualifying the words 'all persons born in the United States' by the addition 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,—both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42.

169 U.S. at 687:

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.

169 U.S. at 693-94

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 Coke, 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 can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides, seeing that, as said by Mr. Webster, when secretary of state, in his report to the president on Thrasher's case in 1851, and since repeated by this court: 'Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance, or of renouncing any former allegiance,—it is well known that by the public law an alien, or a stranger [169 U.S. 649, 694] born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be, unless his case is varied by some treaty stipulations.' Executive Documents H. R. No. 10, 1st Sess. 32d Cong. p. 4; 6 Webster's Works, 526; U. S. v. Carlisle, 16 Wall. 147, 155; Calvin's Case, 7 Coke, 6a; Ellesmere, Postnati, 63; 1 Hale, P. C. 62; 4 Bl. Comm. 74, 92.
To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.

But the combo Jus Soli/Jus Sanguinis NBC definition the U.S. Supreme Court recognized in Minor v. Happersett would allow the U.S. to prevail in every single case of a foreign country claiming jurisdiction of a U.S. citizen who meets the Minor definition.

Nobody's citizenship was before the court in Minor v. Happersett. The Record of Transcript in Minor shows that the Agreed statement of the parties established, at 8, that "It is admitted by the pleadings that the plaintiff is a native-born, free white citizen of the United States and of the State of Missouri...."

In Minor, the U.S. Supreme Court stated:

The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.
. . .
It is contended that the provisions of the constitution and laws of the State of Missouri which confine the right of suffrage and registration therefor to men, are in violation of the Constitution of the United States, and therefore void. The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.
. . .
There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the State wherein they reside." But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision.

It was stipulated fact that Virginia Minor was a person born in the United States, subject to the jurisdiction thereof. The Supreme Court found in Minor that, pursuant to the Fourteenth Amendment, all persons born in the United States, subject to the jurisdiction thereof, were citizens of the United States.

The Court then proceeded to reflect on the status of persons before the Fourteenth Amendment, which had precisely nothing to do with deciding any issue before the Court in Minor.

To determine, then, who were citizens of the United States before the adoption of the amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterwards admitted to membership.
. . .
Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen—a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.
. . .
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, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.

That pile of slop is all dicta, opining about citizenship before the Fourteenth Amendment, something not remotely before the Court.

While there were doubts by "some authorities" about some persons before the 14th Amendment, for the purposes of Minor it was not necessary to resolve those doubts. And so, the Minor court proceeded to NOT resolve those doubts. However, any lingering doubts were resolved by Wong Kim Ark.

Wong Kim Ark at 169 U.S. 705 (1898)

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
Order affirmed.

However, Senator Howard (author) disagrees with those decisions and agrees with what I stated in my post above. Bingham is sadly on your side.

Senator Howard wrote the citizenship clause and entered it in the Senate as an amendment to Bingham's text which contained no citizenship clause.

I believe you misconstrue Howard. He only opposed citizenship for those children of aliens who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, i.e. those with diplomatic immunity from our laws. Indians on tribal land were treated differently as they were considered to be a seperate nation. The frequently seen quote of Bingham is not in reference to the 14th Amendment but to the prior Civil Rights Act of 1866.

The text of the 14th Amendment is what prevails, and neither the statements of Howard or Bingham make much difference. The amendment was ratified by the people, based upon their understanding of the words presented for ratification.

http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11

[2890]

RECONSTRUCTION.
Mr. HOWARD. I now move to take up House joint resolution No. 127. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing.an amendment to the Constitution of the United States.
The PRESIDENT pro tempore. The question is on the amendments proposed by the Senator from Michigan, [Mr. Howard.]
Mr. HOWARD. The first amendment is to section one, declaring that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
[. . .]
[2892]
The State of California has undertaken, at different times, to pass restrictive statutes as to the Chinese. The State has imposed a tax on their right to work the mines, and collected it ever since the State has been organized -- a tax of four dollars a month on each Chinaman; but the Chinese could afford to pay that and still work in the mines, and they have done so. Various acts have been passed imposing a poll tax or head tax, a capitation tax, upon their arrival at the port of San Francisco; but all such laws, when tested before the supreme court of the State of California, the supreme tribunal of that people, have been decided to be unconstitutional and void.
Mr. HOWARD. A very just and constitutional decision, undoubtedly.

Let’s do an Article V convention and maybe settle this (and other issues) peacefully.

A Convention seems like unobtanium, and unpredictable. Probably better would be an amendment with certain language presented for ratification. That would seem about as likely as a convention. I tend to doubt a convention with the power to change the Constitution would be peaceful.

A complicating factor is the law of unintended consequences. Just holding that illegal aliens are not subject to our jurisdiction would mean they would be immune to our laws just like an accredited diplomat. They could come and shoot the place up and all that could be done is deport them. Murder would be no exception. Persons not subject to our jurisdiction are not subject to prosecution in our courts.

I don't know if you have ever seen this about the passage of the 14th Amendment, but it is a hoot. I am not the author. It originated off a very old Civil War board.

Passage of the Fourteenth Amendment
The fourteenth amendment to the constitution was arguably the most sweeping and important. It is the due process of law amendment that has caused so many to our legal system. But, few know the story of the fourteenth and how the egg of "due process" was hatched.
At the Civil War's end Lincoln granted amnesty to nearly all and "with malice towards none", all the southern states were soon functioning again in a legal and proper manner. Because the war was over his emancipation proclamation was effectively ended and so the need of the thirteenth amendment to abolish slavery. There were 36 states in the union and the necessary 3/4 to pass the constitutional amendment was accomplished easily when 10 of the southern states voted for ratification.
Then came the 39th congress in December of 1865. Article 1 of the constitution states that a majority of the either house can deny the seat to any member of its respective house of congress. The Senators and Representatives of the 25 northern states voted to deny seats to the newly elected congressmen from 11 southern states. This meant that the seated congress had 182 of a possible 240 representatives, and only 50 of the rightful 72 senators. There were 36 recognized states in the union. (Keep in mind that in the 38th congress the southern representatives were allowed to vote and have their state votes count in passage of the 13th amendment).
In the beginning of the 39th congress came resolution #48 which sponsored the fourteenth amendment. The amendment was especially important to northern liberals as it's privileges and immunities clause would sweep power from states and hand it to the federal government. The sponsors of the amendment needed a two-thirds majority of each house to submit the amendment to the states for ratification, and remember, the house is short 58 representatives from the southern states and senate 22 senators as well! The constitution states amendments need the vote of "two-thirds of both houses". Does this mean of the seated members or the available seats? Well, it depends on who is counting the votes. At the time there were 33 senators in favor of the resolution #48 which was, 23 short of 2/3rds of the full compliment and 1 short of being 2/3rds of the 50 seated members. Either way you count it, passage is doomed.
NO PROBLEM. Senator John Stockton of New Jersey was elected by a plurality and not a majority vote and was seated to the senate, he was against the fourteenth . A plurality was all that was needed by New Jersey law, and other states as well, however, Stockton's seat was taken from him (after being seated) by the senate majority because he had not received a majority vote and the 33 affirmative voting senators comprised a two-thirds majority of the remaining 49 seated senators. In the house there were 120 of the 182-seated members in favor of the amendment, 2 short of the necessary two-thirds.
NO PROBLEM. Because 30 members abstained, their numbers were not recognized at all, meaning only 152 votes were recognized and 120 is well over two-thirds of the number that voted yes or no. I remind you that the full house compliment was 240 members and that 120 is 1/2 of 240 not 2/3.
Hang on, we are only half way there but it gets better.
Now the amendment must be passed by three-fourths of the states and Nebraska has been admitted meaning 28 states must ratify the 14th amendment. By March, 1867 10 states said no and 17 said yes. California then took no action on the amendment, which was the same as a no vote, meaning there could be at most 26 yes votes when all the states were counted. Then, Oregon which had voted yes with the help of two legislative members later held not to be duly elected changed its vote to no when those two state representatives were replaced by two legitimate representatives, sure doom?
NO PROBLEM. The US Congress recognized the first Oregon vote and discarded the second even though two members of the Oregon state government were not legally able to vote and replaced by the state of Oregon, remember Senator Stockton of New Jersey? The US Congress unseated him (a no vote) because it questioned his validity as a Senator, but recognized the yes votes of State representative held to be illegitimate.
Now the 39th congress passes the Reconstruction Act that placed military occupation on 10 of the 11 southern states and denied the congressional seats to those states until they passed the 14th amendment. Many northern states began to have second thoughts about the manner and validity of these federal moves, after all, what can be done to one state can later be done to yours. California now took a stand and voted no on the 14th. Maryland, Ohio and New Jersey who first voted yes, changed to no. 16 of the 37 states now said no and 3/4ths or 28 were needed to win approval and there was at most only a possible 21 yes votes when all the remaining states voted.
NO PROBLEM. 6 of the southern states that originally voted against the amendment had their legislative bodies forcibly removed by the military occupation resulting from the Reconstruction Act and changed into yes votes. Recall that the 13th amendment was passed by the 38th congress with the original and proper representatives from the southern states. Those congressmen were recognized when voting yes to 13 but thrown out when voting no on 14. Now, what to do about those states that voted yes and then changed to no?
NO PROBLEM. The congressional leaders simply recognized the original yes votes and ignored the no votes, claiming the yeses were already resolved. In other words, the states that voted no and then forced to vote yes had their new votes recognized, those who voted yes then no did not. When all states had voted, congress and Secretary of State William H Seward recognized 28 affirmative votes for ratification.
This is how the Fourteenth Amendment was ratified and made a part of our constitution on July 9, 1868. The Fourteenth is known as our "due process" and "equal protection of the law" amendment.

Found to be a citizen, not a natural born citizen.
The difference is self evident in Art.II sec.1

Try not to be ridiculous. To be born a citizen of the United States is to be a natural born United States citizen.

https://www.law.cornell.edu/constitution/articleii#section1

Article II, Section 1, Cl. 5:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

The difference is that at the time of the Framing NOBODY was a natural born citizen and 35 years of age. One who was a citizen at the time the Constitution was adopted, was eligible to be President.

Wong Kim Ark at 169 U.S. 658-59:

It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established. In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying: "Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide." 6 U. S. 2 Cranch 64, 6 U. S. 119.
In Inglis v. Sailors' Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said: "It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects."

Wong Kim Ark at 169 U.S. 662-63:

In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said: "All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."

The principle of English common law regarding citizenship carried on for three centuries before independence, and it continued after independence, with all thirteen original states explicitly adopting so much of the English common law as was not inconsistent with the Constitution, either in their state constitution or state statute law.

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