The Supreme Court in US v. Wong used an argument to demonstrate that Mr. Wong was a citizen, which applied the principle of English Common Law that those born within the allegiance of the sovereign were natural born subjects. Notice that I didn’t say “within the country.” The leading case in English law on this topic was Calvin’s Case and the writing of Lord Coke was considered definitive. The idea of the mutual obligation between subject and sovereign was the basis for the Common Law criteria to qualify as a natural born subject.
James H. Kettner wrote extensively about Calvin’s Case in his book, The Development of American Citizenship: 1608-1870. In a later chapter on “Birthright Citizenship” in the United States, he harkens back to Calvin’s Case and says:
With the single exception of eligibility for the presidency, they [aliens who met naturalization requirements] thereby acquired the same status and rights as native citizens.
But who counted as native citizens? No one appeared to re-examine and justify Coke’s idea of the “natural-born citizen.” Americans merely continued to assume that “birth within the allegiance” conferred the status and its accompanying rights. Natives were presumably educated from infancy in the values and habits necessary for self-government, and there was no need to worry about their qualifications for membership. …
It was not “birth within the territory” but “birth within the allegiance.”
James Madison, a Framer of the Constitution, spoke before the US House of Representatives in 1789 with an argument in favor of the citizenship of William Smith, opening with his “general principles”:
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.
In an argument on citizenship, Madison begins with “allegiance.” He recognizes the possibility that allegiance may be created through parentage, even though in 1789 US law did not provide for it. When he says that “in general place is the most certain criterion; it is what applies in the United States,” he may have been acknowledging that all of the states granted citizenship, at least to those born within their borders. Under federal law, the children of citizens born abroad were not citizens until the year following Madison’s speech, when the 1790 Naturalization Act made them citizens. Ever since 1790, US law contains a provision granting citizenship to the foreign-born children of our citizens
I assert that the 1790 Act and its successors brought those foreign-born citizens under the allegiance of the United States when it made them citizens, and therefore made then natural born citizens under the criteria of the English Common Law.
If Ted Cruz hadn’t registered for the draft, he would have been guilty of a felony.
I do not see any difference in the allegiance of a person born in the country and the allegiance of someone born its citizen elsewhere. “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 allegiance is allegiance.