We The Birthright People

www.americanthinker.com

Lawyers will tell you that the United States was founded on jus soli (right of the soil), with citizenship derived based on birth within U.S. borders, not bloodlines, because America’s common law is Britain’s common law. During the Revolutionary era, any infant born within the King's realm was a subject of the King, regardless of its parents' national origin or citizenship. Importantly, that principle never applied to the children of invaders, for the British understood that to hold otherwise would erase their nation.

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While the Founders recognized British common law as the baseline for American law, we have long amended, augmented it, and rejected it, replacing it with federal laws and those of our state legislatures—including recognizing that jus soli cannot apply to everyone.

In the beginning, when it came to citizenship, there was chaos. For the duration of the Articles of Confederation, styled as “United States of America,” each state was a sovereign unto itself.

Article II. Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

The Articles required the other states to give full faith and credit to citizenship awarded in any other state, but specified no uniform rule of naturalization among the states. Each state decided who its citizens were and who were not within that state’s borders.

This disorder ended with the adoption of the Constitution in 1788. The Framers counted the citizens of the fledgling United States as the free residents of the several states when the Constitution was ratified, excluding Indians not taxed. This Jus Soli grant of citizenship was an obvious necessity because there had previously been no “United” States of America, no uniform rule of naturalization, and no pre-existing citizenry to impart Jus Sanguinis citizenship to their posterity.

This lack of prior citizenry is also reflected in Article II, Section 1 (qualifications for President) because there could be no natural-born citizens without citizen parents.

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President. (Emphasis added.)

The grant of citizenship explicitly excluded Indians not taxed and implicitly excluded, without once mentioning the word, those held in slavery. Furthermore, the Framers implicitly established the descent of US Citizenship as exclusively Jus Sanguinis, by right of blood, because doing otherwise would imply children born to slaves were citizens. The Southern slave holder interests would never ratify a constitution permitting this. This truth is evident in the earliest immigration law of the Republic, The Naturalization Act of 1790, which held

...that any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on... (Emphasis added.)

Clearly, the citizenship of the fledgling United States, although initially conferred by right of soil to free men only, exempting Indians not taxed and those held in slavery, would descend only by blood without regard to soil to protect the

South’s “peculiar institution.”

When the Civil War ended, there was a significant population of newly emancipated black slaves. The Emancipation Proclamation did not and could not resolve their citizenship status because only Congress has the authority to naturalize new citizens.

Accordingly, Congress enacted and sent the proposed 13th Amendment to the states, which ratified it on December 6, 1865, ending slavery in the remaining four states where the practice was still legal. At this point, there were roughly four million emancipated slaves in America who had no citizenship in any country, including the United States. Congress chose to address this issue through both statute and amendment. It seemed that Congress returned to jus soli citizenship, which had not been applied since the founding of the current Republic in 1788.

The Civil Rights Act of 1866 (“CRA 1866”) attempted to address this issue:

All persons born in the United States and not subject to any foreign power excluding Indians not taxed, are hereby declared to be citizens of the United States.

Two years later, however, the 14th Amendment, however, slightly changed that language:

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.

We see that “under the jurisdiction thereof” in the 14th Amendment replaced “not subject to any foreign power” in CRA 1866. However, because the authors of both documents were the same men, we may infer that these phrases are synonymous. Further evidence for this is found in the Congressional Globe.

A word about the Globe is in order here. The Congressional Record, with which we are familiar, was not always so titled. In earlier times, it bore different names: Annals of Congress (1789-1824), Register of Debates in Congress (1824-1837), and Congressional Globe (1833-1873).

The authors of the 14th Amendment’s birthright citizenship clause spoke regularly on the topic of citizenship before and after its ratification. Their statements and defenses clarify what they thought their words meant.

The Hon. John A. Bingham, the author of the 14th Amendment’s citizenship clause and its sponsor in the House, made numerous references in Congress to the definition of natural born citizenship. In 1862, he emphasized allegiance to America:

All from other lands, who by the terms of laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians. (Emphasis added.)

In 1866, he made the same point about a parent’s allegiance to America:

...every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. (Emphasis added.)

And four years after the 14th Amendment was ratified, he still rejected blanket birthright citizenship:

...a natural-born citizen of the United States...born of naturalized parents within the jurisdiction of the United States... (Emphasis added.)

In the same vein, in May 1866, Senator Jacob Howard, one of the sponsors of the 14th Amendment, had this to say:

Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country. (Emphasis added.)

Both Bingham and Howard define what was meant by “Jurisdiction” in the 14th Amendment’s birthright citizenship clause, as “owing allegiance to no other country” and “not…[to] include persons born in the United States who are foreigners, aliens,” i.e., jurisdiction does not extend to a citizen or subject of any foreign power.

If one is a citizen or subject of some foreign power, then that power has a claim to that citizen’s/subject’s allegiance—exactly as the British long understood. Clearly, the citizenship clause’s purpose was to exclude such persons.

Regrettably, many of our judges and elected leaders have perverted the meaning of ‘Jurisdiction’ to mean the geographical jurisdiction of the United States, which is not at all what Bingham and Howard thought this meant. We, the people, must correct this misunderstanding. To do so means a return to Jus Sanguinis descent of citizenship. All immigration must remain subject to a uniform rule of naturalization.

Proposed 30th Amendment:

“All persons born in the United States of one citizen parent are naturalized citizens of the United States and of the state wherein they reside. No person who has been or yet to be born in the United States to foreign, alien or non-citizen parents is born a citizen of the United States.”

Button Gwinnett is a pseudonym.