Birthers point to the word “domiciled” in the Supreme Court decision in US v. Wong to exclude its conclusions from the determination of Barack Obama’s citizenship. They argue that Wong only applied to the children of domiciled parents and one of Barack Obama’s parents (his father) was not domiciled.
Three years after US v. Wong, a question like that came up in the case of Francesco Guarino. Guarino was the child born of two Italian subjects, temporarily in the United States. Hector de Castro, United States Consul-General in Rome, wrote to acting Secretary of State David J. Hill on June 20, 1901 the following letter asking if Guarino was a US citizen (text version at the bottom of the article):
What is the law? Mr. de Castro referenced language from the Civil Rights of Act of 1866, “not subject to any foreign power” to conclude that young Guarino was not a US citizen. Does this language imply the same thing as “subject to the jurisdiction” in the Fourteenth Amendment? Is Alexander Porter Morse the authority that will prevail? Do the Birthers finally get a clear citation on point?
On August 8, 1901, the answer was given (text version at the bottom of the article):
So, domicile is not necessary, a minor cannot lose their US citizenship, and Mr. Morse was not recognized as the authority.
Sorry, Birthers. Eat lasagna!
Plain text version of the two letters:
No. 99. ]
Consulate General of the United States,
Rome, Italy, June 20, 1901.
Sir: I have the honor to report the following: A minor, named Francesco Guarino, born in the United States of Italian parents, not naturalized, applied to our embassy in Rome, through our consul at Palermo, where he is now residing, for a passport. The application was granted by the chargé d’affaires, Mr. Iddings, against my representations, under the plea that the boy was born in the United States and was to be considered a United States citizen, although a minor and his parents being at the time of his birth and still are Italian subjects.
As the question may arise again, I deem it my duty, with the agreement of Mr. Iddings, to respectfully request the Department for a strong legal opinion upon the subject, in order to settle the controversy and to guide our action in the future.
The point is this: Can a minor residing temporarily or permanently abroad, but born in the United States of alien parents who have never been naturalized nor intimated their intentions of becoming naturalized, be considered an American citizen? And is such minor entitled to an American passport?
No. 864 section 992 of title 25 of the Statutes of the United States relating to citizenship reads as follows: “All persons born in the United States and not subject to any foreign power excluding Indians not taxed are declared to be citizens of the United States.” It would therefore appear clear to me that a child born in the United States of alien parents can not be considered to be a United States citizen, especially when said child is outside of the United States, no more than a child born abroad of American parents could be considered a citizen of the country where he happened to be born.
Then again Prof. Alexander Porter Morse in No. 7 of the Treaties of Citizenship, published in Washington, considers “the country of the father is that of the children at least during their minority.”
This point involves the right of a United States legation or embassy abroad to make aliens American citizens, that right lying I believe solely within the power of the United States courts.
All of which is respectfully submitted.
I am, etc.,
Hector de Castro,
United States Consul-General
No. 33. ]
Department of State,
Washington, August 8, 1901.
Sir: I inclose herewith copy of a dispatch from the consul general of the United States at Rome requesting instructions in regard to issuing passports to minors residing in Italy and born in the United States of alien parents, the particular case in point being that of a minor Francesco Guarino to whom a passport was issued by you against the consul general’s representations.
The question raised by the consul general is, in his own words, as follows:
Can a minor residing temporarily or permanently abroad but born in the United States of alien parents who have never been naturalized nor intimated their intentions of becoming naturalized, be considered an American citizen? And is such minor entitled to an American passport?
The position of the Department is that birth in the United States, irrespective of the nationality of the parents, confers American citizenship; that no act of the parent can deprive the child of the status thus acquired, and that consequently such children even though taken abroad by their parents, are entitled to be treated as citizens of the United States. In view of the decisions of our Federal courts, there can be no doubt of the correctness of this position. It has been almost uniformly held by our Federal courts that birth within the dominions and jurisdiction of the United States confers citizenship irrespective of the nationality of the parents. The question was squarely presented to the Supreme Court in 1897 in the case of Wong Kim Ark, who was born in the United States of parents who were subjects of the Emperor of China. In 1890, when he was 17 years of age, he went to China for a visit, returning to the United States the same year. He was permitted to enter the United States, and remained here until 1894, when he again went to China for a visit. He returned to the United States in 1895, but the collector of customs at San Francisco denied his application for admission on the ground that he was not a citizen or the United States. Upon habeas corpus the United States district court ordered him to be discharged on the ground that he was a citizen of the United States. The United States appealed to the United States Supreme Court and that court (169 U. S., 649) affirmed the judgment of the lower court, thus authoritatively settling the question.
The question whether the father by removing the child from the jurisdiction of the United States or otherwise can deprive him of the citizenship conferred upon him by birth has also been passed upon by the Federal courts. In ex parte Chun King (35 Fed. Rep., 354) Judge Deady, in delivering the opinion of the United States circuit court, said:
In my judgment, the father can not deprive his minor child of the status of American citizenship impressed upon it by the circumstances of its birth under the Constitution and within the jurisdiction of the United States. This status once acquired can only be lost or changed by the act of the person when arrived at majority and the consent of the Government.
Your action in granting the passport was correct.
I am, etc.,
Alvey A. Adee,