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United States Never Adopted Jus Soli from England (Must Read on Birthright)
The Federalist ^ | 4/9/07 | Paul Madison

Posted on 04/09/2007 10:45:31 AM PDT by AZRepublican

Q: When did the United States Adopt Jus Solis?

Answer: United States never did adopt it, and instead, abandoned it.

After the Revolutionary War the first thing the colonies threw out was England’s much hated “perpetual allegiance.” To the colonists, perpetual allegiance was much like “perpetual bondage,” and was considered both a dirty phrase and offensive. To say America freely adopted common law rule of jus soli would be like suggesting America adopted Nazism after WWII.

Under jus soli, there was no personal choice. Under old English common law, foreigners were not required to owe any allegiance to the nation in advance, only birth upon British soil without condition. Under common law, dual allegiance could easily be forced upon a child, something Americans greatly despised and guarded against.

Founder Rufus King said allegiance to the United States depended on whether a person is a “member of the body politic.” King says no nation should adopt or naturalize a person of another society without the “consent” of that person. The reason? Because “he ought not silently to be embarrassed with a double allegiance.

Theodore Roosevelt called dual allegiance a “self-evident absurdity.” Adams said a “man who confesses to several allegiances is not a man anyone could completely trust.” There was to be no dual allegiance in the United States, and the framers went to pains to make sure the evil could never exist.

After the current Constitution was adopted, America devised its own rules governing citizenship that resembled nothing like jus soli under common law that had been abandoned. Instead of forcing allegiance upon a person, it was required that they consent in advance and renounce all allegiance they owed to their country of birth.

Under American law it was required for foreigners three years before admission to first record their intent to become citizens with a local court. Furthermore, foreigners were required to take a oath that it is their intention to become a citizen of the United States, and that they renounce forever any allegiance and fidelity to another country. Upon this, children born to him/her would be considered born within the allegiance of the United States, and thus, a citizen of the United States even though the father had not yet been awarded citizenship.

Under common law, none of the above was required, and so, proves without a doubt the United States never adopted jus soli. Anyone who says different is a very troubled person.

The 39th Congress adopted the same allegiance requirements under the Fourteenth Amendment: “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.”

What did “subject to the jurisdiction” mean? It was defined by Lyman Trumbull, Chairman of the Senate Judiciary: “Not owing allegiance to anybody else. That is what it means.”

The primary author of the Fourteenths citizenship clause, Sen. Jacob Howard, said “subject to the jurisdiction” means the “the same jurisdiction in extent and quality as applies to every citizen of the United States now.

The construction applied to the citizenship clause by its framers dramatically departs from the rule of jus soli, and thus, differs in operation. Under Howard’s construction the clause could had well read: “All persons born to citizens of the United States are citizens of the United States.”

Next time someone says America adopted the rule of jus soli, or adopted England’s common law of birthright, laugh at ‘em. Finally, I will finish with some words of wisdom from TR.

From the melting pot of life in this free land all men and woman of all nations who come hither emerge as Americans and nothing else. They must have renounced completely and without reserve all allegiance to the land from which they or their forefathers came. And it is a binding duty on every citizen of this country in every important crisis to act solidly with all his fellow Americans, having regard only to the honor and interest of America, treating every other nation purely on its conduct in that crisis, without reference to his ancestral predilections or antipathies. If he does not act, he is false to the teachings and lives of Washington and Lincoln; he is not entitled to any part or lot in our country and he should be sent out of it. (Theodore Roosevelt, "The Children of the Crucible" New York, Sept. 9, 1917)


TOPICS: Constitution/Conservatism; Editorial
KEYWORDS: birthright; congress; jussoli; scotus

1 posted on 04/09/2007 10:45:34 AM PDT by AZRepublican
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To: AZRepublican

Winston Churchill was an American citizen, thanks to his American mother, till his 21st birthday, when he had to choose between British and American citizenship.

A very reasonable approach. Permanent dual citizenship is an oxymoron.


2 posted on 04/09/2007 10:49:05 AM PDT by Sherman Logan (I didn't claw my way to the top of the food chain to be a vegetarian.)
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To: AZRepublican

Congress failed to address birthright citizenship when Republicans were in control of both houses and could have easily passed a bill that would pass Supreme Court muster. It is certainly not going to be fixed under the Democrats.


3 posted on 04/09/2007 10:52:00 AM PDT by 3AngelaD
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To: AZRepublican

Very interesting article—thanks for posting it.


4 posted on 04/09/2007 10:54:38 AM PDT by American Quilter (You can't negotiate with people who are dedicated to your destruction.)
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To: AZRepublican
Next time someone says America adopted the rule of jus soli....

No one has ever said that to me, but I'll be listening for it from now on.
5 posted on 04/09/2007 11:01:42 AM PDT by HaveHadEnough
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To: AZRepublican
For an article that is supposed to be about jus soli, citizenship by birth, Madison goes on quite a bit about naturalized citizens.

P.S. Personally against dual (or multiple) citizenship. Pro jus soli.

6 posted on 04/09/2007 11:14:29 AM PDT by Jedi Master Pikachu ( What is your take on Acts 15:20 (abstaining from blood) about eating meat? Could you freepmail?)
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To: Sherman Logan
South Korea is supposed to have a similar policy--citizenship is ambiguous until 18, then a choice has to be made between being Korean or a citizen of another country.

Strongly against jus sanguinis (citizenship based on genetic race--citizenship by blood), as is the case in Japan. Thus, Americans of Japanese descent are also Japanese citizens, from the point of view of the Japanese government.

7 posted on 04/09/2007 11:19:07 AM PDT by Jedi Master Pikachu ( What is your take on Acts 15:20 (abstaining from blood) about eating meat? Could you freepmail?)
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To: Jedi Master Pikachu
Update for the Japanese, jus sanguinis ends eventually (so there are Americans of Japanese descent who are not also Japanese citizens).
8 posted on 04/09/2007 11:22:55 AM PDT by Jedi Master Pikachu ( What is your take on Acts 15:20 (abstaining from blood) about eating meat? Could you freepmail?)
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To: AZRepublican
Jus Soli was part of English Common Law and if Jus Soli was abolished then someone should be able to point to specific statutes that abolished it, and specific case law. A few politicians speechifying doesn't cut it, no matter who they are. Bill Clinton did a lot of speechifying, is everything he said law?

Get to work, all you legal eagles.

9 posted on 04/09/2007 11:27:34 AM PDT by Cheburashka ( World's only Spatula City certified spatula repair and maintenance specialist!!!)
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To: AZRepublican

I think you have to explain how this case was wrongly decided if you want to get rid of jus soli, and I don’t think it is reasonably possible to do so:

169 U.S. 649

United States v. Wong Kim Ark
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA


No. 18 Argued: March 5, 8, 1897 -— Decided: March 28, 1898


A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution,

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZS.html


10 posted on 04/09/2007 11:33:42 AM PDT by socrates_shoe
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To: socrates_shoe

> I think you have to explain how this case was wrongly decided

Already done, see:

http://federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered.html


11 posted on 04/09/2007 11:48:51 AM PDT by AZRepublican ("The degree in which a measure is necessary can never be a test of the legal right to adopt it.")
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To: Cheburashka

>if Jus Soli was abolished then someone should be able to point to specific statutes that abolished it

Easy, look at our Naturalization Laws from 1785 onwards.

Look at how the framers of the citizenship clause recorded the meaning of “subject to the jurisdiction”:

“Not owing allegiance to anybody else.” AND...

“the same jurisdiction in extent and quality as applies to every citizen of the United States now.”

It’s all there, recorded and in plain view.


12 posted on 04/09/2007 11:54:28 AM PDT by AZRepublican ("The degree in which a measure is necessary can never be a test of the legal right to adopt it.")
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To: AZRepublican

> Already done, see:

Good arguments, and they seem well researched and reasoned.

But, honestly, what do you think are the odds that the Supreme Court is going to overturn 110 years of precedent that has been cited in other decisions in order to correct the Wong court?

Easier to re-amend the Constitution to clarify the question, would be my take on it.


13 posted on 04/09/2007 12:14:04 PM PDT by socrates_shoe
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To: socrates_shoe

Well the court has overturned itself after 100 years before. Consider also the ruling in Wong Kim had nothing to do with illegal aliens either.

Our judiciary just plum sucks when it comes to ruling on the written law. Too much agenda and bias involved in the supreme court.


14 posted on 04/09/2007 12:21:18 PM PDT by AZRepublican ("The degree in which a measure is necessary can never be a test of the legal right to adopt it.")
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To: Jedi Master Pikachu

> P.S. Personally against dual (or multiple) citizenship. Pro jus soli.

How can you be pro jus soli and against dual citizenship? Jus Soli creates dual citizenship because it is a act of force against the consent of the parents.


15 posted on 04/09/2007 12:24:01 PM PDT by AZRepublican ("The degree in which a measure is necessary can never be a test of the legal right to adopt it.")
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To: AZRepublican

Forcibly denouncing the other (non-American) citizenship of the baby. And in the majority of cases (where the parents either American natives or naturalized citizens, or want their children to be Americans) of jus soli, there isn’t disagreement or conflict with the baby being American by birth.


16 posted on 04/09/2007 12:27:59 PM PDT by Jedi Master Pikachu ( What is your take on Acts 15:20 (abstaining from blood) about eating meat? Could you freepmail?)
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To: Jedi Master Pikachu

Oh yes there was always conflict and disagreement with what you assert. All through the late part of the 19th century aliens came to America to have children, then returned to their countries. They did this so they could use american citizenship to remove the burdens of their home countries. Austria and Germany compelled 18 y/o’s to millitary service, and the parents could claim the children could not be compelled to military service being Americans!

Jus Soli is ripe for abuse in a modern world.


17 posted on 04/09/2007 12:42:48 PM PDT by AZRepublican ("The degree in which a measure is necessary can never be a test of the legal right to adopt it.")
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To: AZRepublican

> Well the court has overturned itself after 100 years
> before. Consider also the ruling in Wong Kim had nothing
> to do with illegal aliens either.

It’s exceedingly rare, though, for the court to do so.

I agree that Wong Kim Ark can be read narrowly, to exclude those in the US illegally. That is, perhaps, the more feasible course.


18 posted on 04/09/2007 12:42:52 PM PDT by socrates_shoe
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To: AZRepublican
For your edification:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=169&page=649

19 posted on 04/09/2007 1:35:31 PM PDT by Cheburashka ( World's only Spatula City certified spatula repair and maintenance specialist!!!)
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To: Cheburashka

Consider this:

http://federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered.html


20 posted on 04/09/2007 1:39:39 PM PDT by AZRepublican ("The degree in which a measure is necessary can never be a test of the legal right to adopt it.")
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To: AZRepublican
Your blogger has one opinion and the Supreme Court has another, and the Supreme Court ruling is precedent and the law of the land, and your blogger’s opinion is neither. That’s why we have a Supreme Court, to decide these things. If you wish to overturn their ruling, you will actually have to have something to overturn it with.
21 posted on 04/09/2007 4:41:08 PM PDT by Cheburashka ( World's only Spatula City certified spatula repair and maintenance specialist!!!)
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To: Cheburashka

>Your blogger has one opinion and the Supreme Court has another

If you read it carefully, this blogger isn’t stating his opinion, but repeating what the framers of the 14th amendment said it meant. If you read what the blogger said, you will find the supreme court very clearly said they were going to ignore the facts because they believed the fact would have lead to undesirable (in their opinion) consequences.


22 posted on 04/10/2007 12:30:34 AM PDT by AZRepublican ("The degree in which a measure is necessary can never be a test of the legal right to adopt it.")
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To: AZRepublican
No, the author is stating his opinion. The Supreme Court has stated its opinion. Under our system the Supreme Court wins.

It strains the bounds of credulity that Jus Soli was abolished under the 14th Amendment, which nowhere mentions the doctrine (if they wished to abolish it they would have stated the fact in the amendment, which they did not), a generation later every lawyer in the country including the Supreme Court would have forgotten the abolition, and that only five generations later would somebody remember, "Oh, yeah, we did away with that."

I would also point out how strong prejudice against Chinese was in the Nineteenth Century. There is no reason the Supreme Court would have ruled in his favor, except that they thought the law mandated that they must.

Just because I wish it had been abolished doesn’t mean it was.

23 posted on 04/10/2007 5:10:05 AM PDT by Cheburashka ( World's only Spatula City certified spatula repair and maintenance specialist!!!)
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To: Cheburashka

>No, the author is stating his opinion.

No, he is stating the opinion of the framers.

>The Supreme Court has stated its opinion. Under our system the Supreme Court wins.

No, supreme court does not always win when its opinion is supported by nothing but made up facts. How many times have the court ruled one way and then ruled a different way?

Just because the court says a wrong is a right, doesn’t make the wrong a right.

>I would also point out how strong prejudice against Chinese was in the Nineteenth Century.

The court in Wong said they were not concerned with the chinese, but only concerned with the potential of denying “citizenship to thousands of persons of English, Scotch, Irish, German.”

The entire Wong ruling was a grave miscarriage of justice and a black eye to the judiciary. To insist on defending this court is like defending Hitler.


24 posted on 04/10/2007 5:27:48 AM PDT by AZRepublican ("The degree in which a measure is necessary can never be a test of the legal right to adopt it.")
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