I offer for your consideration a new scholarly article entitled: Decoding the Fourteenth Amendment’s Citizenship Clause: Unlawful Immigrants, Allegiance, Personal Subjection, and the Law to appear in the Washburn Law Journal (Vol. 51, No. 2, 2012), by Patrick J. Charles1.
This paper includes a detailed treatment of the 1866 Civil Rights Act and how it compares with the 14th Amendment. What is the difference between “subject to the jurisdiction thereof” and “not subject to any foreign power?” Where does the concept of “domicile” fit in? What about United States v. Wong Kim Ark? Material that we see in the “natural born citizenship” debate is put in context through a nuanced look at what the drafters of the central documents said.
Just to be clear, this is not a paper on presidential eligibility; in fact, that subject is not touched; however, to understand the source material for the eligibility debate, it is essential to understand the issue of birthright citizenship in general, and this paper presents that background from a comprehensive historical viewpoint. The thesis of the paper, if anything, is that the Congress could adopt a law that would be Constitutional to exclude from US Citizenship the children of persons in the country illegally. Such legislation has been proposed in Congress, but not adopted.
While the first three-fourths of the paper went smoothly, I am encountering some bumpiness with the last one-quarter. Pages 38-42 seem to depart from objectivity, for example characterizing one opposing view as “idealistic.” The author’s characterization of what Marshall B. Woodworth wrote appears problematic. I read Woodworth’s, Citizenship in the United Sates Under the Fourteenth Amendment and I was not able to justify Charles’ characterization of Woodworth:
Thus, “subject to the jurisdiction thereof” did not mean mere presence in the territorial jurisdiction. It required more according to the tenets of allegiance, domicile, and personal subjection.
Woodworth never talks about domicile or personal subjection, nor interprets allegiance in the way the Charles does.
Woodworth’s paper, by the way, is interesting because it deals with the Wong Kim Ark case and at the time after it was decided by the District Court, but before it was heard by the U. S. Supreme Court. Woodworth notes that the District Court decided Wong based on the precedent of Justice Fields’ 9th Circuit Court decision in In Re Look Tin Sing. Both Charles and Woodworth discuss dicta in the Slaughterhouse Cases that impacts the citizenship of the children of aliens. Woodworth argues that the jus sanguinis principle of international law is a superior rule to the jus soli principle of the common law while at the same time acknowledging that a country can decide which to follow, and that the United States has followed the latter.
I am also troubled by some of the emphasis used by Charles, for example, he highlights this familiar citation from Wong. [In the following, I’m replacing italics with bold-faced type.]
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…
What is troubling about that emphasis is that in Charles’ paper “residence” is deemed equivalent to “domicile” and both require an intent to remain indefinitely. Those definitions tied by highlighting to the citation in Wong don’t work since the its words “temporary” and “so long as he remains” are inconsistent with the definitions Charles uses. One should also note that by the time this case reached the Supreme Court, was raised, Wong’s “domiciled” parents had returned to China 8 years previous.
While I do not agree with everything I read in Charles’ paper, I still think that the reader may reach a more sophisticated understanding of the issues because of it. Certainly this paper gives one a strong sense of how utterly naïve the birthers writers on the subject are.
I wrote to Mr. Charles to communicate a couple of typographical errors I found in his text. He replied and said in effect that the text had not yet been reviewed by the publisher. I’ll want to see what changes for the published version.
1Patrick J. Charles is the author of numerous articles on legal history and standards of review…. He received his J.D. from Cleveland-Marshall School of Law, and his B.A. in History and International Affairs from the George Washington University. He is a historian for the United States Air Force 352nd Special Operations Group stationed at Mildenhall, United Kingdom and independent consultant on constitutional matters.