by CDR Charles F. Kerchner, Jr. (Ret), blogging at CDRKerchner

The Fourteenth Amendment (National Archives)

(Mar. 10, 2022) — This paper on Birthright Citizenship was brought to my attention by a researcher and key excerpts are herewith shared. You can get a copy and read the full paper here:

Some excerpts with key words and phrases added with bold type for emphasis by editor:

p. 14: In McKay v. Campbell, the U.S. District Court for the district of Oregon considered whether the plaintiff could be deemed a U.S. citizen, and should be allowed to vote. The defendants argued that McKay was British, since he was the child of a British subject, and had been born at a point when Britain and the United States had agreed-for the moment-to occupy the territory jointly.  Judge Deady, evaluating the case, narrowed the issue to that of birthright citizenship under the Fourteenth Amendment, which he interpreted in terms of the common law; as he asserted, eliding jurisdiction and allegiance, “The case turns upon the single point – was the plaintiff born subject to the jurisdiction of the United States – under its allegiance? Citing Calvin’s Case, the Judge recalled Lord Coke’s statement that “To make a subject born, the parents must be under the actual obedience of the king, and the place of birth be within the king’s obedience, as well as within his dominion.  According to Judge Deady’s reading of the Fourteenth Amendment, it is “nothing more than declaratory of the rule of the common law,” and, therefore, the citizen’s allegiance at birth must be evaluated.  In McKay’s case, “The child, although born on soil … subsequently acknowledged to be the territory of the United States, was not at the time of its birth under the power or protection of the United States, and without these the mere place of birth cannot impose allegiance or confer citizenship.

p. 17: The contrast that Stoney drew between national allegiance and national jurisdiction did not respond to a common law interpretation of allegiance, but instead to an internationalist one, which would insist that the allegiance of the parent governs the child as well.

p. 29: the subject of citizenship being national, questions relating to it are to be determined by the general principles of the law of nations.

p. 44: The words ‘not subject to any foreign power’ do not in themselves refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that nevertheless they may be subject to the political jurisdic­tion of a foreign government.


Read the rest here.

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  1. The US Supreme Court defined an NBC as “One born in the United States to parents who are both U.S. Citizens themselves”. There can BE only ONE definition under the Constitution. If a divergent definition is accepted then the term of art “Natural Born Citizen” is still contested. That it is still contested is NOT a fact. The definition of NBC goes way back to the Nationality Act of 1795 in which Congress, realizing that a provision in the NA of 1790 saying that people born overseas to citizen parents were to be “Considered” as NBCs, was REPEALED as unconstitutional. Several cases pre-dating US v. Wong Kim Ark established the meaning of NBC as being born in a country to citizen parents, being born IN the US to US Citizen Parents. Even in Wong Kim Ark the court concurred that an NBC IS one born in the US to US parents who are both US Citizens themselves.

  2. This issue has been discussed ad nauseum. It is now an immutable long established legal fact that under the authority of the Constitution, the term of art “Natural Born Citizen” MEANS “One born in the United States to parents who are both U.S. Citizens themselves”. This has been proven by the proffering of no less then (8) U.S. Supreme Court opinions that support my contention. Arthur, Obama and Harris are ALL usurpers,frauds and imposters., as well as Cruz, Rubio, Jindal, Duckworth, et al.

    The moment that the U.S. became independent from Britain and became a sovereign nation ALL ties to “British Common law” were SEVERED. The U.S. has its own common law. British jurisprudence should not and does not have any import in our court opinions.

    1. No court has said the only definition for natural-born citizen is being born in the United States to two U.S. citizen parents.

      The U.S. Constitution “must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.” U.S. v. Wong Kim Ark, 649, 655 (1898). The common law which the Framers knew was English common law. Which is why the U.S. Supreme Court in Wong Kim Ark extensively examined English common law.

      1. The US Supreme Court defined an NBC as “One born in the United States to parents who are both U.S. Citizens themselves”. There can BE only ONE definition under the Constitution. If a divergent definition is accepted then the term of art “Natural Born Citizen” is still contested. That it is still contested is NOT a fact. The definition of NBC goes way back to the Nationality Act of 1795 in which Congress, realizing that a provision in the NA of 1790 saying that people born overseas to citizen parents were to be “Considered” as NBCs, was REPEALED as unconstitutional. Several cases pre-dating US v. Wong Kim Ark established the meaning of NBC as being born in a country to citizen parents, being born IN the US to US Citizen Parents. Even in Wong Kim Ark the court concurred that an NBC IS one born in the US to US Citizen Parents.

  3. From the link provided by DeMaio.

    “Thus, because the matter never proceeded to a trial on the merits, the court’s abstract discussion of the eligibility issue is either dictum or, at minimum, of no precedential weight on the constitutional eligibility topic, even in Indiana.”

    The Ankeny decision was by the Court of Appeals of Indiana. And it is a published decision. Because the state supreme court refused to hear their appeal, the Court of Appeals was the highest court to publish an opinion on the case. It is therefore binding on all lower courts in their jurisdiction.

    https://www.nwitimes.com/news/local/lake/state-justices-reject-birther-lawsuit/article_4da2bd4c-62b3-556f-a97c-8c3009013129.html

  4. “p. 14: In McKay v. Campbell”

    You should have included this passage,

    “Since the United States did not possess exclusive control over the territory at the time of plaintiff’s birth, and MacKay would not susceptible to the teach of US power, he could not be considered a jus soli citizen.”

    At the time he was born (1823) that portion of the Oregon territory did not belong exclusively to the US or England. It wasn’t until 1846 that the US gained exclusive control over it.

    From the McKay v. Campbell ruling:

    “When, in 1818, the two governments entered into the treaty of “joint occupation,” as it has been aptly called, they thereby agreed that this then unsettled and unknown country, might be occupied by the people of both nations — that it should “be free and open” “to the vessels, citizens, and subjects of the two powers” — without either of them losing their nationality, changing their allegiance, or passing beyond the jurisdiction and protection of their separate governments. As to the British subject and his children born here, the country was for the time being British soil, while to the American citizen and his offspring it was in the same sense American soil. Neither government was entitled to exercise any authority over the citizens or subjects of the other, or to assert the power and rights of a sovereign over them, or their effects, within this particular territory.”

    https://cite.case.law/f-cas/16/161/

    “p. 44: The words ‘not subject to any foreign power’ … ”

    P. 44 is a direct quote from Chief Justice Fuller’s dissent in Wong Kim Ark. Chief Justice Fuller also said the Common law rule applied by the majority would make Wong eligible to be president.

    1. Response from Joseph DeMaio:
      ———————–
      “Chief Justice Fuller also said the Common law rule applied by the majority would make Wong eligible to be president.”

      With respect, that claim is at minimum misleading and at worst, wrong.

      In reality, that which Chief Justice Fuller actually said in his Wong Kim Ark dissent, 169 U.S. at 715 — concurred in by Justice Harlan — was this: “Considering the circumstances surrounding the framing of the [C]onstitution, I submit that it is unreasonable to conclude that ‘natural-born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.” (Emphasis and bolding added)

      Correctly stated, Justices Fuller and Harlan were saying in dissent that it was wrong or, more politely stated, “unreasonable to conclude” — as advocated by the majority opinion in Wong Kim Ark — that the term “natural born citizen” was intended by the Founders to refer to any person born within the geographic limits of the United States “irrespective of circumstances… whether of royal parentage or not….” Plainly, the dissenters were NOT parroting support for the majority’s flawed conclusions.

      In fact, the claim that “even the dissent” in the case recognized that Wong Kim Ark was eligible to the presidency was (and remains) a deceptive and false assertion made by the Congressional Research Service in its Nov. 14, 2011 Report entitled “Qualifications for President and the ‘Natural Born Citizenship’ [sic] Eligibility Requirement” (Qualifications For President and The “Natural Born” Citizenship Eligibility Requirement – 11/14/20 | PDF | United States Nationality Law | United States Constitution (scribd.com). That CRS Report is addressed and dismantled here (Of Presidential Eligibility, Doubling Down and Linguistic Torts, Part 3 – The Post & Email (thepostemail.com)).

      Thus, the observations made in the main post, and to which Mr. Fremick takes exception, seem instead to be well-taken.

      1. “Plainly, the dissenters were NOT parroting support for the majority’s flawed conclusions.”

        I’m not sure what DeMaio’s point is.

        CJ Fuller is dissenting to the majorities opinion that the terms citizen of the United States and natural born citizen as they appear in the Constitution must be interpreted in light of the English common-law rule. And that this “rule” was in effect in the US from the Declaration of Independence and afterwards in the United States (dissent at 124). And he points out that under the majorities’ conclusion children born outside the US to US citizen parents are in fact aliens (dissent at 126). At 126 he speaks of the “conclusion” of the majority opinion.

        After describing the English common-law rule and his belief that international rules (Vattel) should determine citizenship, CJ Fuller eventually circles back to the status of children born outside the US.

        “In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this government.” (Dissent at 162) this is in contrast to what Justice Gray wrote “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized” (majority opinion at 113).

        CJ Fuller is therefore pointing out the effects of the majority opinion not supporting it.

        “Considering the circumstances surrounding the framing of the constitution, I submit that it is unreasonable to conclude that ‘natural born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.”

        CJ Fuller is disagreeing with the majority conclusions (“I submit that it is unreasonable to conclude …”).

        When the dissent is viewed as a whole, we can only conclude that CJ Fuller believed the majority ruling made people like Wong eligible to be president.

        He was not the only one.

      2. The dissent in Wong Kim Ark acknowledged the reasoning in the majority’s ruling would lead to the conclusion that (minor exceptions aside) those born in the United States are natural-born citizens. The dissent obviously disagreed with such a possibility, but it is only a dissent, and not a majority ruling carrying the force of law.

        Later, various courts, when ruling in eligibility cases on the meaning of natural-born citizen, relied on guidance provided by the majority ruling’s in Wong Kim Ark to state plain what was only implied.

        And the CRS, when examining the eligibility cases, noted not only the insight of Wong Kim Ark’s dissent, but also the cases that applied the majority ruling to those born in the United States in a manner consistent with the dissent’s prediction.

      3. Judge Morrow’s ruling in the case of Wong Kim Ark.

        “From the law as announced and the facts as stipulated, I am of opinion that Wong Kim Ark is a citizen of the United States within the meaning of the citizenship clause of the fourteenth amendment.”

        Note he does not use the term natural born citizen to describe Wong Kim Ark.

        https://casetext.com/case/in-re-wong-kim-ark

        From the government’s appellant brief:

        “The question presented by this appeal may be thus stated, is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural born citizen”

        Why does the government say Judge Morrow ruled Wong a natural born citizen when he never used that term?

        Later they ask the following question:

        “Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of importance and dignity of citizenship by birth?” (appellant brief at p. 34)

        The appellants were concerned that the children of Chinese parents would be eligible to be President.

        http://libraryweb.uchastings.edu/library/research/special-collections/wong-kim-ark/case.htm

      4. In 1898 William Dameron Guthrie delivered a lecture on the 14th Amendment. This passage about the recently decided case of US v Wong Kim Ark is from that lecture.

        “The common law rule has been finally affirmed by the Supreme Court in the recent case of the United States v Wong Kim Ark. The Supreme Court held that a child born in this country of Chinese parents domiciled here is a citizen of the United States by virtue of the locality of his birth. The whole subject is discussed at length in the opinions of this case. The effect of this decision is to make citizens of the United States, by virtue of the Fourteenth Amendment, all persons born in United States of alien parents and permanently domiciled here, except the children of the diplomatic representatives of foreign powers; and therefore, a male child born here of alien Chinese subjects is now eligible to the office of President, altho his parents could not be naturalized under our laws.” p.57

        https://books.google.com/books?id=BOE9AAAAIAAJ&printsec=frontcover&dq=william+guthrie+lectures+on+the+14th+amendment&hl=en&newbks=1&newbks_redir=0&source=gb_mobile_search&gbmsitb=1&sa=X&ved=2ahUKEwiJr-rT9cD2AhXvHzQIHZwFAS8QuwV6BAgJEAc#v=onepage&q&f=false

        1. William Dameron Guthrie was clearly devoid of any real understanding of what an NBC is. A citizen merely born here (Jus soli) without benefit of 100% American Jus sanquinis (of the blood of Americans) is NOT an NBC.

      5. In a 1903 Washington Law Reporter article, Alexander Porter Morse, a strong proponent of natural born citizens requiring citizen parents, argued against the use of the term native-born citizens and that natural born included children born outside the US to citizen parents. In a reference to the Wong Kim Ark decision, Morse wrote,

        “Under decision of the Supreme Court of the United States, a child of domiciled Chinese parents, if born in the United States, would seem to be eligible to the office of President and to all the privileges of the Constitution, while the child of American parents and grandparents, born on shipboard or in foreign territory in travel or transit, might be excluded from similar rights and privileges.”

        Like Chief Justice Fuller, AP Morse understood that even without the use of term “natural born citizen” the majority opinion made Wong eligible.

        https://books.google.com/books?id=q-0ZAAAAYAAJ&pg=PA843&dq=alexander+porter+morse+1903+washington+law&hl=en&newbks=1&newbks_redir=0&source=gb_mobile_search&gbmsitb=1&sa=X&ved=2ahUKEwip2N_bosH2AhWEZM0KHSFsAXUQ6AF6BAgIEAM#v=onepage&q&f=false

      6. During the construction and intent of the 14th Amendment, the Article 2 NBC clause suffered no alteration at all. If the intent was to secure a disparate class of eligibility for Citizens born on the soil, then clearly the Article 2 requirements were never addressed and predate the political climate of the 14th Amendment.
        Any person born on the soil, of two citizen parents does not need interpretation of the 14th Amendment, since Article 2 articulates clearly what the requirements for President and Vice President of the United States must clear. The clause stating ” or a Citizen of the United States, at the time of the Adoption of this Constitution” logically assumes that in order for a Natural born Citizen at the time of the adoption of the Constitution would be impossible, since new Citizens would have children too young to meet the qualifications as written.
        In that light, Kamala Harris is a usurper to the Vice Presidential Office. Unqualified via the 20th Amendment Section 3 (where she fails to qualify) to hold either position. Neither of her parents were citizens of the United States at the time of her birth on the soil. She is therefore a 14th Amendment citizen (anchor baby) and NOT an Article 2 Natural Born Citizen.