Being that birthright citizenship (i.e. automatically granting citizenship to anyone born on U.S. soil, regardless of their parent’s status) is a novel concept that wasn’t accepted by the framers, it’s likely that their meaning of the term didn’t include anchor babies or children born on U.S. soil to non-citizen parents.
The claimed non-acceptance by the Framers of birthright citizenship is wrong and without factual basis as demonstrated by historical record. There is nothing novel about the concept. As established by judicial precedent, jus soli was the law of the colonies, and was brought forward into the States upon their inception. There are two sources of citizenship and two only: birth and naturalization. Naturalization only occurs subsequent to birth, and only for one alien born.
Ankeny v Governor Of State Of Indiana
No. 49A02-0904-CV-353.
916 N.E.2d 678 (2009)
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, and 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.
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 169 U. S. 664
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.'"
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."
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, 169 U.S. 698, 716.
The Convention between the United States and China of 1894 provided that "Chinese laborers or Chinese of any other class, either permanently or temporarily residing in the United States, shall have for the protection of their persons and property all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens."
28 Stat. 111. And it has since been decided, by the same judge who held this appellee to be a citizen of the United States by virtue of his birth therein, that a native of China of the Mongolian race could not be admitted to citizenship under the naturalization laws. In re Gee Hop (1895), 71 Fed.Rep. 274.
The Fourteenth Amendment of the Constitution, in the declaration that
"all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,"
contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. 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.
149 U.S. 704
VII. Upon the facts agreed in this case, the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.
Wong Kim Ark acquired citizenship by birth while being born to two Chinese aliens.
There are two classes of citizen, and two only: natural born and naturalized. Naturalization applies only to aliens at a time after their birth. Wong Kim Ark was a citizen at birth, did not need naturalization, and as a citizen was not even eligible for naturalization. That leaves only the one other category possible, natural born citizen.
Slaughterhouse Cases, 83 U.S. 36, 73 (1872)
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. 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.
Lynch v. Clark, 1 Sandf. 583 (1844), as published in New York Legal Observer, Volume III, 1845
It is an indisputable proposition, that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States, and, indeed, before the discovery of America by Columbus. By the common law, all persons born within the ligeance of the crown of England, were natural born subjects, without reference to the status or condition of their parents. [...]
And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. "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," &c. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the rule of the common law, in force when the constitution was adopted, he is a citizen.
Congressional Globe, House, June 13, 1866, 39 Cong, 1st sess, pg 3148:
Representatives DEFREES and WRIGHT asked permission to print some remarks upon this question of agreeing to the 14A proposal. Without objection, there requests wer grants. The entire proposal was then read, and the vote recorded, yeas 120, nays 32, not voting 32. Bingham voted Aye.
RECONSTRUCTION AGAIN
Thaddeus Stevens addressed each each section of joint resolution. His comments on the first section as proposed by the Senate are below. Nobody else rose to comment on any section of the joint resolution.
A few words will suffice to explain the changes made by the Senate in the proposition which we sent them. The, first section is altered by defining who are citizens of the United States and of the States. This is an excellent amendment, long needed to settle conflicting decisions between the several States and the United States. It declares this great privilege to belong to every person born or naturalized in the United States.
That is all the words said in House debate about the citizenship clause, by anybody. The recorded vote is on the next page near the top of the first column, immediately following the reading of the full 14A, which continued over to page 3149.
Page 3148: https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=269
Congressional Globe at the Library of Congress
Page 3149: https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=270
Senate Debate on Civil Rights Act of 1866 authored by Sen. Trumbull
https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=070/llcg070.db&recNum=603
Mr. TRUMBULL. I should like to inquire of my friend from Pennsylvania, if the children of Chinese now born in this country are not citizens? Mr. COWAN. I think not.
Mr. TRUMBULL. I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. That is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.
Mr. COWAN. The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument.
Mr. TRUMBULL. If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I might be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much a citizen as the child of a European.
Regardless of what anyone may have said, or be misinterpreted as saying, or just wrongly imagined to have said, the 14th Amendment established a constitutional standard of citizenship which overruled or struck down anything which can be misinterpreted or imagined to have been contrary to the 14th Amendment.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
a) "All persons." Not some persons, but all persons.
b) "born or naturalized in the United States". Anywhere in the United States.
c) "and subject to the jurisdiction thereof". Subject to the laws of the United States. That exempts cildren of accredited diplomats, and visiting royalty.
https://fam.state.gov/FAM/08FAM/08FAM030101.html#M301_1_1
[State Department, Foreign Affairs Manual]
8 FAM 301.1-1 INTRODUCTION
c. Naturalization – Acquisition of U.S. Citizenship Subsequent to Birth: Naturalization is “the conferring of nationality of a State upon a person after birth, by any means whatsoever” (INA 101(a)(23) (8 U.S.C. 1101(a)(23)) or conferring of citizenship upon a person (see INA 310, 8 U.S.C. 1421 and INA 311, 8 U.S.C. 1422). Naturalization can be granted automatically or pursuant to an application. (See 7 FAM 1140.) d. “Subject to the Jurisdiction of the United States”: All children born in and subject, at the time of birth, to the jurisdiction of the United States acquire U.S. citizenship at birth even if their parents were in the United States illegally at the time of birth:
(1) The U.S. Supreme Court examined at length the theories and legal precedents on which the U.S. citizenship laws are based in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). In particular, the Court discussed the types of persons who are subject to U.S. jurisdiction. The Court affirmed that a child born in the United States to Chinese parents acquired U.S. citizenship even though the parents were, at the time, racially ineligible for naturalization;
(2) The Court also concluded that: “The 14th 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 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.” Pursuant to this ruling:
(a) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally; and that; and
(b) A child born in an immigration detention center physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction. This is so even if the child’s parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States.
The LOSING Briefs from the precedent setting U.S. Supreme Court case of Wong Kim Ark reveal the issue of birthright citizenship was not overlooked — it LOST. United States v. Wong Kim Ark, 169 U.S. 649 (1898), at the U.S. Supreme Court. Brief on Behalf of the LOSING Appellant (United States), by George D. Collins, Of Counsel for Appellant, and also signed by Holmes Conrad, Solicitor General; at page 34:
For the most persuasive reasons we have refused citizenship to Chinese subjects; and yet, as to their offspring, who are just as obnoxious, and to whom the same reasons for exclusion apply with equal force, we are told that we must accept them as fellow-citizens, and that, too, because of the mere accident of birth. There certainly should be some honor and dignity in American citizenship that would be sacred from the foul and corrupting taint of a debasing alienage. Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance aud dignity of citizenship by birth? If so, then verily there has been a most degenerate departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having.
The argument was weighed, measured, found wanting, and rejected by the U.S. Supreme Court. It is as baseless now as it was then. The black letter text of 14A has words too clear to ignore or to be misunderstood. If a change in what they say is desired, a constitutional amendment is in order.
Inconvenient existing and controlling judicial authority came from the Circuit Court for the 9th Circuit.
The judicial authority was from In re Look Tin Sing, Circuit Court, California, 21 Fed R 905 (1884), Opinion of the Court by U.S. Supreme Court Justice (1863-1887) Stephen Field, sitting as a Circuit Court justice.
At 21 Fed R 906:
The first section of the fourteenth amendment to the constitution declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.” This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words “subject to the jurisdiction thereof.” They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must, at the time, be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This ex-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents.
At 21 Fed R 908-909:
With this explanation of the meaning of the words in the fourteenth amendment, “subject to the jurisdiction thereof,” it is evident that they do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship, and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.
