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Wharton’s “Conflict of Laws”

The Appellants who argued that Wong Kim Ark was not a citizen of the United States because Congress made a law excluding the Chinese, and Ark was born in the United States, a child of Chinese subjects, cited Francis Wharton’s Conflict of Laws in their Appellants’ Brief to the US Supreme Court.

By the fourteenth amendment to the Constitution of the United States it is provided 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.” If a child is born in the United States of French parents temporarily resident but not domiciled in the place of birth, is such a child a citizen of the United States by force of the amendment just stated? This depends on the question of whether the child at its birth is “subject to the jurisdiction of the United States.”

In one sense it undoubtedly is. All foreigners are bound to a local allegiance to the State in which the sojourn. Yet the term “subject to the jurisdiction,” as above used, must be construed in the sense in which the term is used in international law as accepted in the United States as well as in Europe. And by this law the children born abroad of American citizens are regarded as citizens of the United States, with the right on reaching full age to elect one allegiance and repudiate the other, such election being final. The same conditions apply to children born of foreigners in the United States.

The Appellants lost the case. In 1905 George H. Parmele published the third edition of  Conflict of Laws (1905) and in the preface, wrote about the purpose of the edition:

The controlling purpose in the preparation of the present edition of this work has been to present the American and English decisions upon specific questions relating to conflict of laws, or involving the application of principles of private international law, and to formulate from these decisions the concrete principles and rules applicable to such questions, rather than to trace general principles and theories though unrelated subjects. The great number of decisions rendered since the publication of the second edition has made this mode of treatment practicable.

In particular, the Wong Appellants’ citation has been updated with the following new information, based on the decision in Wong itself:

Upon the other hand it is now settled by a decision of the United States Supreme Court [footnote references United States v. Wong Kim Ark] that the amendment, interpreted in the light of the common law, extends citizenship to a person born in the United States of foreign parents who have not been, or cannot be, naturalized in the United States, but who have a permanent domicil or residence therein; and that it is beyond the power of Congress to deny citizenship to such a person. It was said in this connection: The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, and in the allegiance and under the protection of the country, including all children 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.”

pp. 49-50.

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9 Responses to Wharton’s “Conflict of Laws”

  1. avatar
    nbc May 29, 2012 at 2:28 pm #

    Again, pretty devastating evidence running counter to what Judges have called mertiless or frivolous arguments about International Law guiding the US’s notion of citizenship.

    Thanks Doc, a nice comparison of two editions…

  2. avatar
    TraderJack May 30, 2012 at 4:11 pm #

    Another interesting possting,
    there never has been any doubt about children born of two citiziens in the USA.

    But then comes the fact that Congress has to pass laws to grant citizenship to the children of two citizens when the child is born on a foreign ship in the harbor of an America coastline.

    Now you can not affect the citizenship of a child born in the USA of two citizens, but you can affect the citizenship of a child born in the USA in a foreign domain?

    therefore, would it not be accurate to state that there is a DIFFERENCE in the citizenship of a child when born of two parents in the USA, then of a child born of two citizens of the USA but born in a foreign domain. One is by right, and the other by Law!

    Would it not appear that a child born of two citizens in the USA has a different legal status than a child not born of two citizens in the USA , due to the inability of Congress to control the possession of that citizenship at the time of birth.

    Now a child born abroad to one citizen parent possesses no inherent USA citizenship, but a parent born abroad to two citizen parents possess an inherent USA citisenship by law.
    Is there any grievious error in these words.

  3. avatar
    linda May 30, 2012 at 4:26 pm #

    There are provisions for citizens at birth, outside the US, by only one citizen parent. I have pointed this out to birthers, but since it says citizen at birth and not NBC, they are not convinced. (The first in the list “(a) is a person born in the US and subject to the jurisdiction thereof”, not a word about parents or their citizenship…gasp!)

    (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person
    (A) honorably serving with the Armed Forces of the United States, or
    (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
    (h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.
    http://www.law.cornell.edu/uscode/text/8/1401

  4. avatar
    Paper May 30, 2012 at 4:43 pm #

    Yes.

    TraderJack: Is there any grievious error in these words.

  5. avatar
    JPotter May 30, 2012 at 5:19 pm #

    TraderJack: Another interesting possting, blahblahramblerambleP>

    Since this is “Obama Conspiracy Theories”, what is the nature of your conspiracy? In what way does this rambling about children born abroad to X number of American parents impact the citizenship of a person born in the US?

  6. avatar
    y_p_w May 30, 2012 at 5:20 pm #

    linda:
    There are provisions for citizens at birth, outside the US, by only one citizen parent.I have pointed this out to birthers, but since it says citizen at birth and not NBC, they are not convinced.(The first in the list “(a) is a person born in the US and subject to the jurisdiction thereof”, not a word about parents or their citizenship…gasp!)

    The requirements you listed went into effect in 1986. Before that time there were several laws passed by Congress. Obama’s situation (if he were born outside of the US) would have been the law in effect from 1952 to 1986, where a child of one US citizen parent and one alien parent would need that one citizen parent to have resided in the US for at least 5 years past the 14th birthday and 10 years total. There were many different rules for birth out of wedlock, birth to married parents, etc. Then there were laws that made citizenship retroactive should the parents meet future relaxed standards.

    http://www.state.gov/documents/organization/86757.pdf

    7 FAM 1133.2-2 Original Provisions and Amendments to Section 301

    (CT:CON-317; 12-08-2009)

    a. Section 301 as Effective on December 24, 1952: When enacted in 1952, section 301 required a U.S. citizen married to an alien to have been physically present in the United States for ten years, including five after reaching the age of fourteen, to transmit citizenship to foreign-born children. The ten-year transmission requirement remained in effect from 12:01 a.m. EDT December 24, 1952, through midnight November 13, 1986, and still is applicable to persons born during that period. As originally enacted, section 301(a)(7) stated: Section 301. (a) The following shall be nationals and citizens of the United States at birth: (7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.

  7. avatar
    Keith May 30, 2012 at 6:54 pm #

    TraderJack: Now a child born abroad to one citizen parent possesses no inherent USA citizenship, but a parent born abroad to two citizen parents possess an inherent USA citisenship by law.
    Is there any grievious error in these words.

    You mean besides the obvious?

  8. avatar
    nbc May 30, 2012 at 8:09 pm #

    TraderJack: Would it not appear that a child born of two citizens in the USA has a different legal status than a child not born of two citizens in the USA , due to the inability of Congress to control the possession of that citizenship at the time of birth.

    the difference is simple: A child born on soil is under our jurisdiction, a child born outside is not. English Common Law used the concept of allegiance, which was explained by subject to our jurisdiction in the 14th.

    It has nothing to do with the number of US parents involved. By statute, the US has extended citizenship jus sanguinis (by blood) to children born abroad to US citizen parents, although at times it has totally revoked such citizenship, or made it dependent on the status of the parent(s).

  9. avatar
    gorefan May 30, 2012 at 8:28 pm #

    TraderJack: Now you can not affect the citizenship of a child born in the USA of two citizens, but you can affect the citizenship of a child born in the USA in a foreign domain?

    Only by a Constitutional amendment that repealed the 14th Amendment.