Judge in Seattle blocks Trump order on birthright citizenship nationwide

The common law origin of jus soli begins with the case of Elyas de Rababyn (1290) II Rotuli Parliamentorum 139 where it was assumed that all persons born on English soil were subjects of the King.

It is far better known in common law in Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608).

Jus soli existed in the colonies, and later in the states. It is the law of the United States today.

Jus soli was largely abandoned in Britain with the British Nationality Law of 1981. There is limited jus soli in the United Kingdom for foreign nationals resident in the UK for three years or more before the birth of the child.

https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1734&context=vjtl

Vanderbilt Journal of Transnational Law
Volume 33
Issue 3 May 2000
Article 5
2000

Birthright Citizenship in the United Kingdom and the United States

Michael Robert W. Houston

[excerpt]

Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608)

At 698

1. Exposition of the Territorial Birthright Citizenship Principle:
Calvin's Case
Calvin v. Smith (Calvin's Case), decided in 1608, established the seminal exposition of territorial birthright citizenship.⁷
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7. 77 Eng. Rep. 377 (K.B. 1608) [hereinafter Calvin's Case]. This case was heard by all the justices of the King's Bench and Common Pleas, as well as the Lord Chancellor and barons of the Exchequer-14 justices in all. See Polly J. Price, Natural Law and Birthright Citizenship in Calvin's Case, 9 YALE J.L. & HUMAN. 73, 82 (1997). All but two justices found in favor of Calvin. See id. While Calvin's Case embodies the quintessential explanation of common law territorial birthright citizenship, some historians have asserted that the concept dates back as early as 1290, in the case of Elyas de Rababyn. See id. at 92 n. 109. (noting the rule was assumed to be that all persons born on English soil were the King's subjects). In Elyas, it was assumed that all persons born on English soil were the king's subjects. See id. (citing 9 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 75 (1926)).

Birthright citizenship can be dated back to 1290. It was cemented as the law of Great Britain with Calvin's Case in 1608. It was the law in the British colonies that became Canada and the United States. On July 4, 1776 it became the law of the land for the thirteen states that declared independence. As common law, birthright citizenship continued as the law of the land in the United States up to the adoption of the 14th Amendment. Birthright citizenship was then elevated from common law to constitutional law, with the explicit purpose being to place it beyond the reach of the legislature. And so it remains today.

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. 649, 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.

Wong Kim Ark at 169 U.S. 649, 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,, 169 U. S. 649, 702 (1898)

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.

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.

U.S. Supreme Court: Plyler v. Doe, 457 U.S. 202, 211 (1982)

In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase "within its jurisdiction." ¹⁰
We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.
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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).

Government lawyers who continue to argue nonsense are likely to face sanctions, and possibly disbarment.

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