Birthright “Jus soli” Citizenship Only Applied to State Citizenship Prior to March 26, 1790

There has been much hubbub in and around the lame-stream media airwaves as well as bloggers of all political affiliations regarding birthright citizen aka anchor babies. Now while much of it is coming from hosts that I respect; they just happen to not quite be the true constitutional conservatives they claim to be.  None the less, we are all entitled to our own opinions, however as the old saying goes, “you are entitled to your own opinion, but not to your own facts”. Especially when one can not substantiate one’s own facts with evidence that can be corroborated by independent researchers. 

One of the 1st pieces of evidence that was brought to my attention nearly 3 years ago and hundreds of hours of research since was the 1884 Supreme Court case Elk v Wilkins in which Justice Gray stated in the deciding opinion of the court.

The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which

“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,” and “The Congress shall have power to establish an uniform rule of naturalization.” Constitution, Article II, Section 1; Article I, Section 8. By the Thirteenth Amendment of the Constitution, slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes ( 60 U. S. 73; Strauder v. West Virginia,@ 100 U. S. 303, 100 U. S. 306.)

This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”; The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized

One can not surmise from Gray’s opinion that “subject to the jurisdiction” meant one thing for birth and another for naturalization for no law can suppose to repudiate itself. Nor can 2 laws of the same effect at the same time suppose to repudiate themselves. Gray is merely reiterating the deciding opinion written by Chief Justice Waite in Minor v Happersett (1874).

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization…and that Congress shall have power “to establish a uniform rule of naturalization.”

Both the Minor (1874) & Elk (1884) cases pertained to the meaning of the 1st section of the 14th Amendment and thus we continue with Chief Justice Waite’s deciding opinion as to who the “persons” born or naturalized & “subject to the jurisdiction” are.

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…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 the 14th Amendment is merely the Civil Rights Act of 1866 ratified as a constitutional amendment with the 1866 Act itself remaining in tact and acting as the chief language used to enforce the citizenship laws until 1940 when Congress finally consolidated the two laws into one. We’ll touch more on this in a bit,  but until then make a note that  Title 8 of the US Code defining persons who were born citizens read as follows in the highlighted opening of the 1866 Act until 1940.

All 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.”

In the Elk deciding opinion written by Justice Gray, we find the dicta of the Slaughter-House Cases (1872) that was accepted unanimously by that court, including all the dissenters.

“[t]he 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.”…Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Brad­ley in dissent from the principal holding of the case, likewise acknowledged that the clause was designed to remove any doubts about the constitu­tionality of the 1866 Civil Rights Act, which pro­vided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power.

Thus, the Slaughter-House dicta was adopted in the holding of the opinion in the Elk case.

Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.

And this is where most of the pundits derail themselves in reference to children born to aliens on US soil. They claim that only children born to ambassadors or diplomats are not “subject to the jurisdiction”. It is very clear here that the Supreme Court justices, including those who held dissenting opinions, determined unanimously that the phrase “subject to the jurisdiction” did not pertain to children born on US soil to aliens regardless of thei parents political duty to their country of allegiance.

Yes, prior to the adoption of the US Constitution, citizenship & immigration was controlled wholly by the individual states and the laws were as vast as there were states. While some held fast to the old English custom of feudal doctrine, many did not and they adopted the natural law, “jus sanguinis” in accordance with the Declaration of Independence which was also the law adopted by the US Constitution & the US Naturalization laws.

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them

Case in point, the 1779 citizenship laws of Virginia.

Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens.

Already in 1779, even before the “Treaty of Paris” (1783) we see that the state of Virginia had cast off the feudal doctrine of birthright “jus soli” allegiance and children born in Virgina to aliens not yet naturalized were themselves aliens born. Thomas Jefferson was Governor of Virginia at the time and the drafting of this law is attributed to him. He also was the Secretary of State under Washington until he resigned in 1793. Jefferson was a stickler for detail in order that there would be absolutely no obfuscation of the intent of the laws and he carried it with him into the Presidency in 1801. In 1802 the US Congress revised the Naturalization laws, repealing the Alien & Sedition Acts put in place by Adams as well as clarifying important aspects of the Naturalization law.

In my most recent research of the Congressional Globe (H/T to bushpilot1 at Free Republic for directing me specifically to the 28th Congressional debates) I finally found specific reference to the much important Naturalization Act of 1802.

28th Congress, 2nd Session
page 129

MR. SAUNDERS’S REPORT ON NATURALIZATION

First, the act of 1802, which repeals all former acts.

It restores the provision of the declaration of intention to three years before application, and a residence of 5 years before admission, and requires proof of good character, renunciation of former allegiance, as well as of all titles or orders of nobility, and an oath to support the constitution; it requires the “registry” of aliens “in order” to become citizens, and the production of the certificate of registration when applying for admission. It further provides for the children of aliens, whether born within or out of the United States

That last part intrigued me as I had read the 1802 Act several times but had never latched onto the pertinent part of the Act which states:

An Act To establish an uniform rule of Naturalization and to repeal the acts heretofore passed on that subject
Approved April 14 1802 US Statutes at Large Vol 2 pg 155

SEC 4 And be it further enacted That the children of persons duly naturalized under any of the laws of the United States or who previous to the passing of any law on that subject by the government of the United States may have become citizens of any one of the said states under the laws thereof being under the age of twenty one years at the time of their parents being so naturalized or admitted to the rights of citizenship shall if dwelling in the United States be considered as citizens of the United States

Under the Article of Confederation, the states & their citizenship & naturalization laws were independent of each other; each acting separately & wholly for the benefit of the individual state as if it was an independent nation in & of itself under the Laws of Nations. Birthright “jus soli” citizenship only pertained to state citizenship proffered to children born to aliens within the states that kept the feudal law in place prior to the adoption of the US Constitution & prior to the passing of the 1790 Naturalization Act. Therefore, children born to aliens on US soil prior to AND after the passing of the Naturalization Act of 1790 did not become US citizens until their parents, themselves finalized their immigration process & became US citizens as US citizenship did not exist until the ratification of the US Constitution.

According to Black’s Law, laws are to be specific and not made to create “Repugnancy” (Black’s Law 1171 5th Ed) Rule of Civil Proc. 8 ) if they refer to similar subject matter as did the Civil Rights Act of 1866 & the 14th Amendment that remained in place at the same time for 72 years. When the 1866 Civil Rights Act was consolidated with the 14th Amendment in 1940, it was a matter of common sense jurisprudence that a formal change in the verbiage of Title 8, from “not subject to any foreign power” to “subject to the jurisdiction”, needed to be made to reflect the verbiage of the law still in place. Not because the Civil Rights Act was repugnant, but because Congress finally made the decision that since the 1866 Act was constitutionalized by the amendment process, the law no longer needed to remain in place as the other aspects of the Act had been formally transferred to different sections of the US Code pertaining specifically to other civil rights. Also, parts such as expatriation had also been transferred & reflected in Title 22 under foreign affairs while some parts of the expatriation act still remain under Title 8.

Title 8> Chapter 1> §§ 1-18. Repealed or Omitted

These sections, relating to citizenship, were affected by the Nationality Act of 1940, former section 501 et seq. of this title.

That act was passed on Oct. 14, 1940, to consolidate and restate the laws of the United States regarding citizenship, naturalization, and expatriation, and, in addition to certain specific repeals thereby, all acts or parts of acts in conflict with its provisions were repealed by former section 904 of this title. See the notes below for history of individual sections.

Section 1, relating to citizenship of persons born in the United States, was repealed by act Oct. 14, 1940, ch. 876, title I, subch. V, § 504, 54 Stat. 1172. It was from R.S. § 1992, which was revised from act Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27. Similar provisions were contained in former section 601 (a) of this title. See section 1401 of this title. [emphasis mine]

And that is where I will close, with the Expatriation Act of 1868 formally known as “An Act concerning the Rights of American Citizens in foreign States” approved by Congress on July 27, 1868 that denounces any claim, notion or concept that the United States does or ever did adopt & recognize any form of dual nationality & that the Law of Nations as adopted by the United States government is the common law of the national government as it is the only law that remains constant when dealing with independent & sovereign states under a Republican form of government.

Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle, this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendents, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed; Therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.

Therefore, the 14th Amendment along with its sister act, “The Expatriation Act of 1868, any “claims” that there was anything such as dual citizenship was finally & formally declared to be inconsistent with the principles of our Republican form of government; and that the phrase “subject to the jurisdiction” as ratified by the states has always meant “owing allegiance exclusively to the United States”. Birth on US soil & US citizenship are not naturally inclusive terms unless born to parent(S) (plural) who do not owe allegiance to any foreign nation. All others fall under the naturalization clauses of Title 8 and are citizens by statute, not by nature, thus they can never claim to be “natural born” US citizens. At most, they are naturalized citizens per old English feudal law as shown in Sec 214 of the law of nations. At the least, they are foreigners permitted to settle & stay in the country under Sec 213 of the law of nations. These persons may be citizens of their local community; but still owing direct allegiance to their home country, they & their children therefore are not US citizens for constitutional purposes.

Law of Nations Bk 1

§ 212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.

§ 213. Inhabitants.

The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state while they reside in it; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the law or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society without participating in all its advantages. Their children follow the condition of their fathers; and, as the state has given to these the right of perpetual residence, their right passes to their posterity.

§ 214. Naturalization.(58)

A nation, or the sovereign who represents it, may grant to a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalization. There are some states in which the sovereign cannot grant to a foreigner all the rights of citizens, — for example, that of holding public offices — and where, consequently, he has the power of granting only an imperfect naturalization. It is here a regulation of the fundamental law, which limits the power of the prince. In other states, as in England and Poland, the prince cannot naturalize a single person, without the concurrence of the nation, represented by its deputies. Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner

Linda Melin, citizen researcher

copyright 2011

No part of this article may be reprinted or cross-posted at other blogs without the express consent of the author. However, the references contained herein that are linked are in the public domain and are there to ease the burden of others in their own research so they may write their own original articles.

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Matthew 6:24 & Luke 16:13

No man can serve two masters; for either he will hate the one, and love the other; or else he will hold to one, and despise the other.

Jeremiah 5:5-6

So I will go to the leaders
and speak to them;
surely they know the way of the LORD,
the requirements of their God.”
But with one accord they too had broken off the yoke
and torn off the bonds.
Therefore a lion from the forest will attack them,
a wolf from the desert will ravage them,
a leopard will lie in wait near their towns
to tear to pieces any who venture out,
for their rebellion is great
and their backslidings many.

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