In the late 19th-century debate over the citizenship of the children of aliens after the Fourteenth Amendment, there were two camps. The excellent paper by Mr. Woodworth, Citizenship in the United Sates Under the Fourteenth Amendment, in 1896 lays out the two opposing viewpoints which he describes as “common law” and “international law” or put using different terms, jus soli and jus sanguinis.
The same categories were used by George D. Collins who wrote the Appellant’s Brief for the US Government challenging the citizenship of Wong Kim Ark, a US-born child of Chinese subject parents domiciled in the United States. Collins argued that international law, citizenship through parentage, was the correct rule to apply in the United States, not the English Common Law.
When Birthers today make their arguments about what a “natural born citizen” is, they cite a work on international law, The Law of Nations (short English title) by Emer de Vattel. The problem with citing Vattel (beyond issues of translation) is that such presumes that the rule in the United States is international law and not common law, and Collins supports the Birthers by arguing that international law is the correct rule.
Collins, describes the common law rule he opposes in his Brief, and what he says is instructive for the question of Barack Obama and two citizen parents. Collins wrote:
The alien father owing local allegiance, his child born on British soil was deemed to be born within that allegiance, and therefore a natural-born subject of the King. The same rule applied where the father had never been within the Kingdom; in that case the local allegiance of the mother was deemed sufficient.
Collins acknowledges that if the common law rule applies then not only does the father’s mere presence in the country generate sufficient allegiance to make the child a natural born subject, but also the local allegiance of the mother alone is sufficient. Sufficient allegiance can be generated by a single parent.
Collins would argue that feudal relationships such as the allegiance between a sovereign and the inhabitants of his kingdom, and the very notion of “subject” are inappropriate in a Republic such as the United States, but Collins would lose that argument before the Supreme Court in 1898. In fact, after the Revolution, state legislatures would continue to use citizen and subject language interchangeably. The Supreme Court in the Wong decision cites Chancellor Kent saying:
And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.
The Court, citing the decision in Smith v. Alabama would say that terms in the US Constitution must be understood in the light of the English Common Law familiar to the Framers of the Constitution (citing also Minor v. Happersett, Moore v. United States, Ex parte Wilson and Boyd v. United States).
Citing Justice Swayne in US v. Rhodes:
“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.”
And so the United States Supreme Court ruled that Wong Kim Ark was a citizen of the United States based on the common law rule. The Court affirmed what the principal author of the United States Constitution, James Madison, said:
It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.