-A child born on US territory is a citizen by the fact he or she was born on US territory. See the Constitution, its amendments, and case law regarding this. You’re trying to apply something aimed at non-citizens seeking citizenship to people who are already US citizens. It doesn’t work like that.
Perhaps the first most important thing to understand about national birthright is that there was no written national birthright rule applicable within the States prior to the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution.
The principle reason for this absence is that no power had been delegated to Congress to make anyone a citizen of a State. Prior to the 14th amendment citizens of the United States were strictly defined as a citizen of some State.
When steamships came along making it easier for more people to cross the Atlantic and with the arrival of trains, States begun to restrict citizenship via birth by excluding transient aliens or temporary sojourners. Thus, only those who intended to reside and pledge their allegiance to the State through State law could claim citizenship for their children.
Generally speaking, when an issue of aliens and citizenship went before the courts it meant some State had neglected to enact laws on the subject, thereby forcing the courts to adjudicate citizenship.
Conceivably, Congress could had from the beginning attempted to include a defined birthright rule under the laws of naturalization – whether due to place of birth or parentage – but would have found, just as the Thirty-Ninth Congress had discovered, to be no simple matter as individual States had differing opinions over who should, or should not, be its citizens.
As a rule, the nation considered only those patriotic immigrants who came here for the exclusive purpose to settling amongst us, bringing with them wealth, like habits and customs as those worthy to become part of our society. And more importantly, those willing to renounce all prior allegiances to their country of origin and swear fidelity to this one.
So what was to be the premise behind America’s first and only constitutional birthright declaration in the year 1866? Simply all children born to parents who owed no foreign allegiance were to be citizens of the United States – that is to say – not only must a child be born but born within the complete allegiance of the United States politically and not merely within its limits.
There could be no alternative as the United States abandoned the English tradition of
“perpetual allegiance” for the principal of expatriation, and thus, children inherit the preexisting allegiance of their father because there is no creation of allegiance through birth alone for foreigners in the United States.
Under
Sec. 1992 of U.S. Revised Statutes the same Congress who had adopted the Fourteenth Amendment, confirmed this principle: “
All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.” Thus, the statute can be read as “
All persons born in the United States who are not aliens, excluding Indians not taxed, are declared to be citizens of the United States.”
Sen. Trumbull stated during the drafting of the above national birthright law that it was the goal to “
make citizens of everybody born in the United States who owe allegiance to the United States,” and if “the negro or white man belonged to a foreign Government he would not be a citizen.” Obviously he did not have the English common law practice in mind since existing allegiance was largely irrelevant.
Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, added on March 1, 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States,
except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”
Additionally, Sen. Trumbull argued Indians could not be subject to the jurisdiction for the reason the United States deals with them through treaties. This is also exactly how the United States deals with aliens; it enters into treaties with other countries to define legal rights of their citizens while within the limits of the United States and vice versa.
Sen. Trumbull further added, “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’” Sen. Jacob Howard agreed: * concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
This remark by Sen. Howard places this earlier comment of his on who is “subject to the jurisdiction thereof” into proper context:
“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.”*
