Senator John McCain is natural-born

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Senator John McCain was born in 1936 of American parents in the Panama Canal Zone, out of the limits of the United States. Owing to this circumstance of his birth, it is claimed that he may not qualify as a "natural-born citizen"; hence, ineligible to the presidency. But the "assumption and understanding" of most Americans is that Senator McCain is "constitutionally qualified" to hold the nation's highest office.

This confusing situation is precisely what Chief Justice Melville Fuller articulated, dissenting in U.S. v. Wong KIm Ark (1898), concerning the majority reading of the Citizenship Clause:

"If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect ... I submit that it is unreasonable to conclude that ... the children of foreigners, happening to be born to them while passing through the country ... were eligible to the presidency, while children of our citizens, born abroad, were not."

"All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England."

Even Justice Horace Gray in Wong Kim Ark agrees:

"The fundamental principle of the common law with regard to English nationality was birth within the allegiance ... The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual ... The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established."

So, what of the place of birth that jus soli is anchored upon, irrespective of parentage, even race, color, creed or purse? A.V. Dicey in Conflict of Laws (1896), also cited in Wong Kim Ark, clarifies:

"... though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England."--

If, indeed, the status that attaches at birth "in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance"; perhaps, it is the ALLEGIANCE of the PERSON at birth that may turn out to be the overlooked keyword to resolve the confusion concerning Senator McCain's "natural-born" status; allegiance, in fact, may well be the real determinant to the acquisition of citizenship of the United States, to being "natural-born" in particular. For consider--

"Neither the climate nor the soil but obedience and allegiance that makes the subject born."--Sir Edward Coke, Calvin's Case (1608)

" Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject."--Sir William Blackstone, Commentaries on the Laws of England (1765)

"There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection (that is, in relation to citizenship) reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance."--Chief Justice Morrison R. Waite, Minor v. Happersett (1874)  

So, although unarguably born out of the limits of the United States, Senator McCain was doubtless "born in the allegiance of the United States," having been born of America parents owing allegiance to the United States.

But the word "allegiance" is nowhere to be found in the Citizenship Clause in Sec. 1 of the Fourteenth Amendment that Senator Jacob Merritt Howard proposed, and the Senate debated and "agreed to," during the 39th Congress, 1st Session, on May 30, 1866 and was ratified in 1868, which provides:

"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."

(NOTE: The words "or naturalized" were not included in Senator Howard's original draft, debated and "agreed to" on May 30, 1866, but were inserted later on June 8, 1866 on motion of Senator William Pitt Fessenden)

Interestingly, during the Citizenship Clause debate, Senator Lyman Trumbull, Judiciary Committee Chair and author of the 1866 Civil Rights Act, defined the phrase "subject to the jurisdiction thereof" in this manner:

"Mr. TRUMBULL ... What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means ... It cannot be said of any Indian who owes allegiance, partial, if you please, to some other government that he is 'subject to the jurisdiction of the United States' ... They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States."

What Senator Trumbull is, of course, conveying in his definition of the phrase is that "owing allegiance" is simply the "reciprocal" obligation (Minor v. Happersett) in return for the "protection" extended to persons "subject to the jurisdiction of the United States" --"Such allegiance and protection were mutual" (U.S. v. Wong Kim Ark)--and in compensation for the attendant rights, privileges and immunities persons "owing allegiance," in return for "protection," are guaranteed to enjoy as citizens of the United States that the Citizenship Clause confers.

In the light of all these, this paper will argue that a "natural-born citizen" of the United States is best defined as a person "born in the allegiance of the United States" (U.S. v. Rhodes), allegiance being the sole determinant to the acquisition of citizenship, which, among other reasons highlighted above, "in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance." (Dicey).

Allegiance, in fact, becomes the unifier of the two distinct modes of acquiring citizenship of the United States--at birth (as "natural-born") and after birth (as "naturalized")--that marks them off from an "alien" owing allegiance to a foreign power, since the allegiance that attaches to the "natural-born" at birth ("birth and allegiance go together," U.S. v. Rhodes, otherwise born stateless) is the very same allegiance required to be sworn to under oath by an "alien" to be "naturalized" and admitted as citizen after birth (under the various Naturalization Acts).

More significant during the debate, Senator James Doolittle directly quoted (shown printed in quotation marks in the scanned original Congressional Globe transcript) how "the language" of the phrase, "subject to the jurisdiction thereof," in the Clause that Senator Howard authored, was understood to be read:

"Mr. DOOLITTLE... But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language which he uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does."

"all persons subject to the jurisdiction of the United States"

Now why Senator Doolittle add the words "all persons" in the phrase "and subject to the jurisdiction thereof"?

Take careful note that the phrase "and subject to the jurisdiction thereof" is enclosed between a PAIR OF COMMAS--with the crucial first comma inserted before the conjunction, "and," the second before the linking verb "are"--thus, correctly read as the author, Senator Howard, intended his draft to convey, the Clause, after all, grammatically consists of a COMPOUND subject, joined together by the coordinator "and," with the main noun phrase, "all persons," in both subjects REPEATED, defining TWO categories of citizens of the United States:

First subject/category - "All persons born in the United States" and
Second subject/category - "All persons subject to the jurisdiction thereof."

Relying on elementary grammar rules on punctuation, this now-forgotten SECOND category that has lain dormant, unnoticed, lurking in the words enclosed between the PAIR OF COMMAS--"and subject to the jurisdiction thereof"--is actually worded as the ELLIPTICAL for the complete construction, "and all persons subject to the jurisdiction of the United States." For owing to the first comma the author placed before the conjunction "and," the REPEATED main noun phrase, "all persons," in the Second subject may grammatically be OMITTED and understood rather than to be repeated or stated for brevity or style, inferable from the main noun phrase, "All persons," in the first subject, "All persons born," it is coordinate with.

(NOTE: There is another elliptical, the compound object of the linking verb "are," with the REPEATED direct object "citizens" omitted in the second: "citizens of the United States and [citizens] of the State wherein they reside.")

Persons "subject to the jurisdiction" in the Citizenship Clause should be distinguished from persons merely "within the jurisdiction" employed in the Equal Protection Clause of the same Sec.1 (as the Citizenship Clause) of the Fourteenth, which refers, as clarified in Plyler v. Doe (1982), to "anyone, citizen or stranger who is subject to the laws of the State.".

However, without intending disrespect, Wong Kim Ark mistakenly read the words "and subject to the jurisdiction thereof" as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States," ignoring altogether the grammatical significance of the pair of commas that was inserted to enclose it with, indicating the author's intent to identify the phrase as "NON-RESTRICTIVE" (certainly, not as a "restrictive," or a "qualifier" or of the element preceding it) --and unaware, perhaps, of how Senator Doolittle directly quoted during the debate the complete construction of the elliptical Senator Howard used to phrase the SECOND category.

This category represents what Senator Howard said during his sponsorship speech that his draft of the Clause "will include every other class of persons"--other than "all persons born in the United States"--already recognized "by virtue of natural law and national law" to be citizens of the United States, at birth or after birth, at that time in 1866.

"Mr. HOWARD... This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that 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 [the "recognized exceptions" to "persons born in 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."

Note that the SECOND category does not refer to a named or described place, location, territory or State where persons "subject to the jurisdiction of the United States" are required either to be born or to reside in, which is obviously intended to foreclose the revival of Senator Calhoun's "Theory of Citizenship"--"National citizenship depended upon State citizenship"--popular during the antebellum: "That the territories of the United States belong to the several States composing this Union, and are held by them as their joint and common property." (Speech on Resolutions on the Slave Question, 1847)

NOTE: Sadly, this is practically the same "theory" that justified the status of persons in "unincorporated" territory "appurtenant and belonging to the United States, but not a part of the United States" espoused under what Justice Harlan, dissenting in Downes v. Bidwell (1901), refers to as the "occult" Doctrine of Incorporated Territory, although relying this time around upon the Territorial Clause for its "constitutional" authority to define the meaning of the phrase "in the United States."

Note further that the SECOND category confers U.S. citizenship, not only upon persons born "subject to the jurisdiction of the United States," but also upon persons from and after the moment they become "subject to the jurisdiction of the United States" or after birth, meaning naturalization, which explains the reason behind why Senator Howard did not bother to include in his original draft the words "or naturalized," although already recognized "by virtue of national law" as citizens of the United States under the Naturalization Acts since 1790.

In fact, in objecting to Sen. Doolittle's proposal to insert the phrase "excluding Indians not taxed" to his draft, Sen. Howard mentions "naturalization" several times during the debate, particularly in this manner:

"Mr. HOWARD ... The great objection, therefore, to the amendment ["excluding Indians not taxed] is, that it is an actual naturalization, whenever the State sees fit to enact a naturalization law in reference to the Indians in the shape of the imposition of a tax of the whole Indian population within their limits."

Now why would Sen. Howard call as "naturalization" (the status that can only be conferred "after birth") the status conferred "at birth" that Wong Kind Ark claims is what the Clause is all about, which is that "All persons born in the United States" must at the moment of their birth, be (1) "subject to the jurisdiction thereof" and, had Sen. Doolittle's amendment been accepted, (2) "excluding Indians not taxed"?

Senator Howard, of course, was obviously referring to the SECOND category--"all persons subject to the jurisdiction thereof"--at birth or after birth--that Senator Doolittle proposed to qualify with the phrase "excluding Indians not taxed." Thus, under Sen. Doolittle's amendment, "whenever the States saw it fit to impose a tax upon the Indians," those Indians "taxed" would immediately fall under the Second category, by becoming "persons subject to the jurisdiction of the United States," acquiring thereby U.S. citizenship by "naturalization" (after birth).

Justice John Marshall Harlan, dissenting in Elk v. Wilkins (1884), argues that the Clause similarly confers citizenship not only upon "All persons born," but also upon persons "subject to the jurisdiction" after birth:

"Our brethren, it seems, construe the Fourteenth Amendment as if it read: 'All persons born subject to the jurisdiction of, or naturalized in, the United States are citizens of the United States and of the State wherein they reside;' whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States."

What Justice Harlan is saying here is that the Clause should be read as likewise conferring citizenship upon persons, not only "at birth," but "from and after the moment they become subject to the complete jurisdiction of the United States" or after birth," or by "naturalization," in respect of persons born in this country."

What is important to underscore is that "all persons subject to the jurisdiction of the United States"--at birth or after birth--who fall under the SECOND category--as with the jus soli category of "all persons born in the United States"--are persons likewise reciprocally subjected to the duty of allegiance which is claimed and enforced by their sovereign, the United States, in return for the protection so extended, since "allegiance and protection were mutual" (Wong Kim Ark) and, "in this connection (that is, in relation to citizenship) reciprocal obligations. The one is a compensation for the other" (Minor v. Happersett).

Confident of the comprehensive and all-embracing extent of the "language" in the Clause he proposed, Senator Howard boldly reminded his colleagues that this "great question of citizenship" his draft was phrased to resolve would now be enshrined in the Constitution of the United States, well "BEYOND THE LEGISLATIVE POWER."

"Mr. HOWARD. We desired to put this question of citizenship and the rights of citizenship and freedmen beyond the legislative power."

But, sadly, owing to the misreading of the phrase enclosed between the pair of commas, "and subject to the jurisdiction thereof," "this question of citizenship" remains, to this day, still within the reach of, and certainly not "beyond the legislative power," for note how the U.S. Code, in defining the term "national of the United States," now belittles and degrades into insignificance the "mutual" relationship between "allegiance" and citizenship acquisition:

"The term national of the United States means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."

This comical definition of the term "national" (a status the Constitution does not even recognize) is, of course, an oxymoron. Even granting that the correct view is that a person born in "unincorporated territory" who "owes permanent allegiance to the United States" is to be merely regarded as a "national," but "not a citizen of the United States," why are aliens (born in a foreign country and owing allegiance at birth to a foreign power at that) who pledge the same allegiance to the United States after birth admitted as citizens of the United States?

Is the intensity of the "allegiance"owed at birth by a "national" but "not a citizen of the United States" less than that sworn to by an "alien" after birth or even that owed by a citizen of the United States? Besides, why does the law require a "non-citizen national"--who owes allegiance to the United States at birth--to once again pledge the same allegiance after birth in order to be "naturalized" and admitted as a citizen of the United States?

So, is Senator John McCain "natural-born"? But, first, what "makes the subject born"? As proclaimed in Calvin's Case, to repeat, it is "neither the climate nor the soil ["in the United States"?] but obedience and allegiance."

To its credit, the Senate, 39th Congress, 1st session, already settled this "great question of citizenship" by enacting the Citizenship Clause to consist of another, now-forgotten category that "will include every other class of persons" already declared "by virtue of natural law and national law"--particularly the Naturalization Act of 1855, recognizing children of U.S. citizens "born abroad"--to be citizens of the United States at the time the Clause was "agreed to" on May 30, 1866 in order to remove with finality "all doubt as to what persons are or are not citizens of the United States" which "has long been a great desideratum in the jurisprudence and legislation of this country," which is--"all persons subject to the jurisdiction of the United States" at birth or after birth.

This paper will conclude that Senator John McCain is a "natural-born" citizen eligible to assume the office of President, having been born of parents "subject to the jurisdiction of the United States" and, reciprocally in return for the protection afforded, "in the allegiance of the United States"; hence, Senator McCain is qualified at birth to belong to a still-unrecognized category of citizens of the United States the Citizenship Clause confers.

The words "subject to the jurisdiction thereof" have, of course, been already judicially read in U.S. v. Wong Kim Ark (1898), as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States," to exclude the "recognized exceptions" to jus soli:

"The real object in qualifying the words 'All persons born in the United States' by the addition 'and subject to the jurisdiction thereof' would appear to have been to exclude ... the two classes of cases--children born of alien enemies in hostile occupation and children born of diplomatic representatives of a foreign state, both of which as has already been shown by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country."

"Was there any necessity of excepting them? And, if there were others described by the words, why should the language be construed to exclude them ... There was no necessity as to them for the insertion of the words, although they were embraced by them."

"If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect."

"In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this government. If not, and if the correct view is that they were aliens, but collectively naturalized under the acts of congress which recognized them as natural born, then those born since the fourteenth amendment are not citizens at all unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized 'in the United States.'"

Chief Justice Fuller offers a rather grim alternative reading concerning the "exceptions":

"But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanent allegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would.

"And it was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted.

"The fourteenth amendment of the constitution, as originally framed by the house of representatives, lacked the opening sentence. When it came before the senate in May, 1866, Mr. Howard, of Michigan, moved to amend by prefixing the sentence in its present form (less the words 'or naturalized')."

"All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." (p. 2890, 2nd col.)

"Persons born, and subject to, are citizens."

"Mr. DOOLITTLE ... I moved this amendment because it seems to me very clear that there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States. All the Indians upon reservations within the several States are most clearly subject to our jurisdiction, both civil and military." (p. 2892, 3rd col.)

Senator Doolittle consistently restates the question along that line later during the debate, even warning his colleagues of the consequences of "the very language" Senator Howard employed in wording the phrase "and subject to the jurisdiction of the United States" (from "thereof"):

"Mr. DOOLITTLE ... My friend from Michigan will not contend that an Indian can be taxed if he is not subject to the State or to the United States; and yet if they are subject to the jurisdiction of the United States they are regarded by the very language of this amendment to be citizens ... Why, sir, what does it mean when you say that a people are subject to the jurisdiction of the United States." (p. 2896, 1st col)

"Mr. DOOLITTLE ... But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language which he [Senator Howard, the author] uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does ..."

--"ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES"

"All persons born in the United States, and [all persons] subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

"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."

Here, owing to the omission of the comma before the conjunction "and," the phrase "and not subject to any foreign power" is undoubtedly intended to be "restrictive," a "qualifying" phrase of the element preceding it, "All persons born," which is how the author intended it to be read and how it is read correct;y.

But the phrase "and subject to the jurisdiction thereof" in the Clause (even if deemed to be synonymous, though negatively-phrased, to that in the Civil Rights Act) is enclosed between a pair of commas, which, as grammatically defined above, is "non-restrictive"; so, why is it read under Wong Kim Ark as "restrictive," a qualifier of the element preceding it, ignoring altogether the punctuation rule relative to the pair of commas enclosing it?

Senator Howard could have used the applicable plural pronoun "those" (of the "repeated subject"--"all persons") to read: "and those subject to the jurisdiction thereof" (and could have even avoided inserting the pair of commas); but the word "those" is a vague, ambiguous pronoun deemed inappropriate in formal or legal writing.

Perhaps to underscore his writing style preference for the grammatical device of an ELLIPTICAL, Senator Howard again resorted to employing it to phrase another compound with a repeated element in the Clause. And this is evident in the elliptical structure of the compound object of the linking verb "are"--"citizens of the United States and [citizens] of the State wherein they reside." Here, Senator Howard similarly omitted the second object, "citizens," common to both and similarly joined by the coordinator "and," to be understood rather than to be repeated, again, for brevity or style and recoverable from the first object, "citizens," it is coordinate with.

Although this matter is best left to grammarians to definitively resolve; the fact remains, nonetheless, that, since it was the same 39th Congress and its Committee on Style that edited these similarly-phrased--but differently punctuated--provisions written just two months apart, would they have applied the same elementary English grammar rules on punctuation selectively, arbitrarily?

But, without intending disrespect, note that the confusion in the reading stems mainly from the fact that the grammatical significance of the pair of commas the author deliberately inserted to enclose the phrase "and subject to the jurisdiction thereof" with has been simply overlooked or, perhaps, ignored in Wong Kim Ark.

B. A SECOND CATEGORY OF U.S. CITIZENS TO "INCLUDE EVERY OTHER CLASS OF PERSONS"

Thus, as intended by the author, Senator Howard, the complete construction of the draft of the Citizenship Clause he proposed--which consists, after all, of a compound subject--recognizes and confers not just one category of citizens of the United States, but TWO:

First category: "All persons born [or naturalized] in the United States," ("or naturalized" inserted later) and
Second category: "[all persons] subject to the jurisdiction thereof (elliptical phrase with "all persons" omitted)

This reading that confers U.S. citizenship upon two categories of persons harmonizes with what Senator Howard emphasized during his sponsorship speech that the draft he authored provides an all-encompassing, comprehensive definition of citizenship that "will include every other class of persons":

"Mr. HOWARD... This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that 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 [the recognized exceptions to "persons born in 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." (p. 2897, 2nd col.)

"All persons subject to the jurisdiction of the United States"--conferred at birth or after birth.

For take careful note that the Second category confers U.S. citizenship upon persons not only at birth, as in the First Category (persons "born"), but also after birth, as in persons "naturalized" which no doubt explains the reason why Senator Howard deemed it redundant to include the words "or naturalized" in his original draft of the Clause.

In fact, insofar as the acquisition of citizenship by "naturalization" ("after birth") under the Second category is concerned, the most telling argument during the debate for the recognition of a Second category comes from remarks of the author, Sen. Howard, no less, in the course of his vigorous objection to Sen. James Doolittle's proposal to insert the words, "excluding Indians not taxed," to his draft.

The United States Code defines the term "naturalization" as the "the conferring of nationality of a state upon a person after birth by any means whatsoever." Note the keywords "after birth."

To recall, the phrase "and subject to the jurisdiction thereof," as claimed under Wong Kim Ark, is read as a "qualifying" phrase of the element preceding it, "All persons born" or "at birth"--which is proposed to be qualified further under Sen. Doolittle's amendment by the words, "excluding Indians not taxed."

In objecting to Sen. Doolittle's proposal, Sen. Howard mentions "naturalization" several times in this manner:

"Mr. HOWARD ... Does he suppose to leave the amendment ["excluding Indians not taxed] in such a condition that the State of Wisconsin ... will have the right to impose taxes upon the Indian tribes within her limits, and thus make of those Indians ... citizens of the United States ... It would, in short, be a naturalization, whenever the States saw it fit to impose a tax upon the Indians." (p. 2895, 2nd col.)

"Mr. HOWARD ... The great objection, therefore, to the amendment ["excluding Indians not taxed] is, that it is an actual naturalization, whenever the State sees fit to enact a naturalization law in reference to the Indians in the shape of the imposition of a tax of the whole Indian population within their limits."(p.2895, 2nd col.)

"Mr. HOWARD ... But the great objection to the amendment ["excluding Indians not taxed] to the amendment is that it is an unconscious attempt on the part of my friend from Wisconsin to naturalize all the Indians within the limits of the United States. I do not agree to that. I am not quite so liberal in my view. I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relationship, are to become my fellow-citizens." (p. 2895, 3rd col.)

"Our brethren, it seems, construe the Fourteenth Amendment as if it read: 'All persons born subject to the jurisdiction of, or naturalized in, the United States are citizens of the United States and of the State wherein they reside;' whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States."

What Justice Harlan is saying here is that the Clause should be read as likewise conferring citizenship upon persons, not only "at birth," but "after birth"--"from and after the moment they become subject to the complete jurisdiction of the United States" or by naturalization, "in respect of persons born in this country."

Add to that, there is the absence of any territorial restriction; for, as distinguished from the First, "born in the United States," which upholds the acquisition of citizenship based on place of birth under the Doctrine of Jus Soli, the Second category does not refer to a named or described place or locality where persons "subject to the jurisdiction of the United States" are required either to be born or to reside in,

In particular, the Second category does not specify, much less imply, any such place, Congress or the Court may arbitrarily define as "appurtenant and belonging to the United States, but not a part of the United States" (Insular Cases), "organized," "incorporated," "ceded," "annexed," "contiguous," "insular," "occupied," even "territory" or "colony," or any other synonymous term, which is to be regarded as the determinant place of birth or residence.

Rather, irrespective of the synonyms of the term "place," it is the "sanctity of the person" and the circumstance of being "subject to the jurisdiction of the United States" that alone matters to qualify under the Second category.

With the Citizenship Clause grammatically read as intended, the two post-Civil War Amendments, 13th (1865) and 14th (1868), can now be viewed to convey consistency, oneness of intent--Equal Protection in two areas of concern in relation to "the sanctity of the person": (1) "in the United States"; and (2) "subject to the jurisdiction of the United States":

THIRTEENTH: The abolition of Slavery or involuntary servitude inflicted upon persons:

(1) "within the United States"; or
(2) "any place subject to their jurisdiction."

FOURTEENTH: The rights, privileges and immunities U.S. Citizenship confers upon persons:

(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof"

To repeat, this different approach to the reading of the phrase enclosed within a pair of commas in the Clause, "and subject to the jurisdiction thereof," argued here is an attempt to uncover the long-overlooked separate category of "every other class of persons" the author, Senator Howard, intended the draft of the Clause to confer citizenship of the United States upon.

It is a reading consistent with Senator Howard's intent expressed during his sponsorship speech that the draft of the Clause he proposed "settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States," a reading "which has long been a great desideratum in the jurisprudence and legislation of this country."

Later during the debate, in fact, Senator Howard reiterated his determination to enthrone this "great question of citizenship" in the sanctuary of the Constitution of the United States--"BEYOND THE LEGISLATIVE POWER":

"Mr. HOWARD. We desired to put this question of citizenship and the rights of citizenship and freedmen beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by its roots and destroy it, and expose the freedmen again to the oppressions of their old masters." (p. 2896, 3rd col.)

Perhaps, the arguments presented in this paper will heighten interest on this class of the still-unrecognized, the now-forgotten, sadly disowned citizens of the United States.

C. "A PERSON BORN IN THE ALLEGIANCE OF THE UNITED STATES IS A NATURAL-BORN CITIZEN"

There is one other point that needs to be clarified concerning the relationship between the phrase "subject to the jurisdiction thereof" and ALLEGIANCE.

During the Citizenship Clause debate, Senator Lyman Trumbull, Judiciary Committee Chair, 39th Congress, and co-sponsor of the Fourteenth Amendment, underscored the link between owing allegiance and being "subject to the jurisdiction of the United States":

"Mr. TRUMBULL ... What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means ... It cannot be said of any Indian who owes allegiance, partial if you please, to some other government that he is 'subject to the jurisdiction of the United States' ... It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens ... for the very fact that we have treaty relations with them shows that they are not subject to our jurisdiction. We cannot make a treaty with ourselves; it would be absurd." (p. 2893, 1st-2nd cols.)

U.S. v. Rhodes (1866), cited in U.S. v. Wong Kim Ark (1898), proclaimed during the same year the 39th Congress enacted the Clause that:

"All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together."

"Allegiance and protection are, in this connection (that is, in relation to citizenship) reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance."

"... though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England."

"The fundamental principle of the common law with regard to English nationality was birth within the allegiance--also called 'ligealty,' 'obedience,' 'faith,' or 'power'--of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual ... 'Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is ... The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established."

"Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject."

Allegiance, no doubt, is the sole determinant to citizenship of the United States, the unifier of the two distinct class of U.S. citizens--the &q