International law and citizenship in the United States

The consensus view today is that everyone born in the United States (with a few exceptions) is a natural born citizen, following the historical survey of the Supreme Court of New York in Lynch vs. Clarke and many subsequent court decisions, US Attorney general decisions, and books on the subject. Their view is that the common law of Britain is the source of this stream of history, and the place to turn to when defining terms used in the Constitution (as affirmed by the Supreme Court in Smith vs. Alabama).

In recent times a move is afoot to argue that citizenship at birth in the United States is only acquired by birth in the United States of citizen parents(s), following the philosophy of Emerich de Vattel in his book, The Law of Nations. They say that this is the view of the founders of the United States, who understood such concepts according to “international law” rather than “common law”. While de Vattel is just one commentator on international law, they say that his views control.

So to further the discussion, I offer the following text from the book INTERNATIONAL LAW, Chiefly as Interpreted and Applied in the United States by Charles Cheney Hide, professor of law at Northwestern University (1922). Please refer to the original for important footnotes.

THE ACQUISITION OF AMERICAN NATIONALITY BY BIRTH

a
Citizenship

(1)
By Right of Place. Jure Soli

(a)

§ 343. The Common Law.

According to the common law every child born “within the ligeance and jurisdiction” of the King of England was regarded as his subject. It is not true that all persons born within the King’s domain were within his ” ligeance and jurisdiction.” Thus, the child of an alien enemy born in British territory within hostile military occupation was regarded as outside thereof; likewise the child born within the realm whose father was an alien, and at the time of the birth of the child, a diplomatic officer accredited to the Crown by a foreign sovereign. As these were, however, the only instances where persons born within the royal domain failed to acquire English nationality, it became natural to assert as a rule of law, commonly known as the jus soli, that, subject to these exceptions, a person became a natural-born subject by reason of his birth within the King’s domain.

(b)

§ 344. The Laws of the United States.

It was not until 1866 that any law was enacted in the United States indicating what persons born within its territory of alien parentage were to be regarded as nationals. Up to that time the opinion was oftentimes expressed, judicially and otherwise, that the rule of the common law would be followed, in cases where the parents were temporarily residing in the United States at the time of the birth of the child,as well as in those where they were domiciled therein.

 

In 1866 the Civil Rights Act became a law. According to it 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.

In 1868 the Fourteenth Amendment to the Constitution was declared ratified by a joint resolution of the Congress and was duly promulgated. It provided that

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.

Prior to 1897, the Supreme Court of the United States had made no decision respecting the application of the Fourteenth Amendment to a child born within the United States to foreign parents.In that year, however, that Court, in the case of United States v. Wong Kim Ark, decided that a child born in the United States of parents of Chinese descent who, at the time of his birth, were subjects of the Emperor of China, and domiciled within the United States, where they were engaged in business, became, at the time of his birth, a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment. In the opinion of the Court, delivered by Mr. Justice Gray, it was stated that the Amendment should be interpreted in the light of the common law; that the rule of that law respecting nationality by birth of a child of alien parents was in force in all of the English Colonies on the American continents until the Declaration of Independence, and continued to prevail thereafter in the United States; that there was little ground for the theory that at the time of -the adoption of the Fourteenth Amendment, there was any settled and definite rule of international law generally recognized by civilized nations inconsistent with the ancient rule of citizenship by birth within the dominion; that in the forefront both of the Amendment and of the Civil Rights Act of 1866, the principle of citizenship by birth within the domain was reaffirmed in the most explicit and comprehensive terms; that notwithstanding considerations that might influence the legislative or executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens, there were none that could constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Amendment.

There appears to be no reason to anticipate a different conclusion in case the alien parents of a child born in the United States were temporary sojourners, and not domiciled therein. The Department of State is not, at the present time, in view of the decisions of the courts, disposed to raise a distinction based upon the domicile of the parents.

Following the exceptions of the common law, a child born in the United States would not be regarded as acquiring American nationality by birth, in case either the alien father was a diplomatic officer accredited to the United States, or in case the parents were alien enemies, and the birth of the child occurred in a place under hostile military occupation.

(2)

§ 345. By Right of Blood. Jure Sanguinis.

By right of blood, jure sanguinis, a child may at birth acquire the nationality of his father. Numerous States regard as their respective nationals children born to their own subjects or citizens in foreign lands. The United States makes such a claim, conferring its citizenship as well as its nationality upon children

born under the following conditions specified in the Act of Congress of February 2, 1855 :

All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.

The two conditions thus made essential to the acquisition of American citizenship by birth, in the case of a child born outside of the limits and jurisdiction of the United States are, the American citizenship of the father at the time of the birth of the child, and the residence of the father at some time within the United States. Residence of the father in an American community in a foreign State, where he is subjected to the extraterritorial jurisdiction of the United States, is not regarded by the Department of State as compliance with the statutory requirement that he shall have resided within the United States….

§ 348. The Attitude of International Tribunals.

The inquiry whether the jus soli or the jus sanguinis should be applied in determining nationality by birth has frequently confronted international courts of arbitration, where one State has demanded of another an indemnity in behalf of a person regarded by the latter as one of its own citizens. Neutral arbitrators have generally been agreed in requiring the sovereign which claimed an individual as a national to adhere to a position consistent with its own municipal laws or constitution.  Thus a State of which the law, based upon the jus sanguinisr does not provide for the acquisition of nationality by birth of a child born within its territory to foreign parents domiciled abroad, is not permitted to deny the right of the State of the parents’ nationality to claim (if it may do so consistently with its own laws) that the child at birth became one of its nationals. In case of a conflict of laws, the opinion seems to have prevailed that the law of the State in which the individual resided when the claim arose should govern the question of his allegiance in so far as it was derived from or dependent upon the fact of his nationality by birth. It is to be observed, however, that the cases involving a conflict usually raise a question respecting the effect of certain acts or events alleged to have changed the nationality of the individual, rather than an issue concerning his nationality by birth.