In ARE PERSONS BORN WITHIN THE UNITED STATES IPSO FACTO CITIZENS THEROF? The American Law Review (Sep/Oct 1884) George D. Collins argues that only those born in the United States whose fathers are citizens, are themselves citizens.
Mr. Collins jumps right into the topic by attacking Lynch v. Clarke (New York 1844) denying that there is a common law of the United States (although he is quite ready to adopt the Swiss philosopher Vattel in lieu of a common law). Collins seems to think de Vattel’s “The Law of Nations” represents international law rather than de Vattel’s philosophy of international law, but the facts are that de Vattel’s view of citizenship did not represent a consensus of national laws on citizenship; quite the contrary.
Finally Collins launches into racist screed against the Chinese:
Now it is evident that such persons [the Chinese] are utterly unfit, wholly incompetent, to exercise the privileges of an American citizen….
…yet under the common law rule the children of all persons, irrespective of race, who were born within the United States would be citizens.
We already know that Collins argument was rejected by the US Supreme Court in United States v. Wong Kim Ark. I think the flaw in Collins lies in confusion of common law as a principle under which the Constitution is to be understood, and whether one might rely on the common law in contravention to actual laws.
For a detailed analysis of the controversy between state citizenship and national citizenship, I refer the reader to Kettner’s book The Development of American Citizenship, 1608-1870, Chapter 9. For a view of what the contemporary federal courts thought about Collin’s argument, see Another Look. (It may well be that Collins was writing in response to the Look Tin Sing case given its publication just a month after the decision.)