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