How “Birthright Citizen” Went Off the Rails! — The Gestation of Birthright Citizenship, 1868-1898: States’ Rights, The Law of Nations, and Mutual Consent | by Bernadette Meyler | Cornell Law School

How “Birthright Citizenship” went off the rails under the influence of the progressive ideological movement in the USA regarding recognizing citizenship in the USA as simply due to being born here as the sole determining factor. This paper covers the key gestation period for that thought in the last half of the 19th century. And it continued to get manipulated and loosened even more since 1898 via misinterpreting the true holding of Wong Kim Ark (1898) Supreme Court decision (parents had to be legally domiciled permanent residents of the USA to give children born in the USA birthright citizenship) to where we are now, i.e., even illegal aliens’ children are considered to have “birthright citizenship”. Read the below paper to learn how it all started and evolved in the last half of the 19th Century, with some writings of that era for and against the interpretation as to whom has “birthright citizenship”, and the progressives and liberals point of view of why they think this is good.

The Gestation of Birthright Citizenship, 1868-1898: States’ Rights, The Law of Nations, and Mutual Consent – by Bernadette Meyler, Cornell Law School – Spring 2001

This paper on Birthright Citizenship in the last half of the 19th century was brought to my attention by a researcher of citizenship law. Some key excerpts written by scholars, politicians, and various courts battling over the liberalization of “birthright citizenship”, and cited in this paper covering the time frame of the last half of the 19th century, are pointed out by him and herewith shared below. You can get a copy and read the full paper on the pros and cons of the debate on the subject of “birthright citizenship” during that time frame here or here .

Some important excerpts pointed out by the researcher (with some additions by the editor) are listed below with some key words and phrases which were highlighted by him, are in this format marked with italics and bold type for emphasis by the editor:

PDF document 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 Statesunder 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.

PDF document 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.

Image added by the editor. Click on image for more on the importance of the Law of Nations and Natural Law in regards to citizenship of a country and allegiance requirements and claims of same. The Law of Nations is cited in our U.S. Constitution. Vattel’s Law of Nations or Principles of Natural Law greatly influenced many of the founders of our nation such as Franklin, Jefferson, and Washington and the framers of our U.S. Constitution.

PDF document p.28: As Morse quoted Justice Marshall, “The law of nations … is a law founded on the great and immutable principles of equity and natural justice.” The following were included among the numerous works on the subject cited in treatises and articles on citizenship: Bar, International Law; Field, International Code; Foelix, Droit International Prive; Savigny on Private International Law; Phillimore, International Law; Story, Conflict of Laws; and Vattel, Law of Nations.

PDF document 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.

PDF document 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.

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CDR Charles Kerchner, P.E. (Retired)

Other suggested reading and viewing on being a “natural born Citizen” of the United States:

1.  A chart which lists and explains the five (5) Citizenship terms used in the U.S. Constitution.

2. Being a “born Citizen” or “Citizen at Birth” is not identically the same as a being a “natural born Citizen”.

3. Read this essay regarding the constitutional term natural born Citizen” and basic logic, i.e., trees are plants but not all plants are trees. “Natural born Citizens” are a subset of “born Citizens (citizens at birth)”. Adjectives mean something.  All “natural born Citizens” are “born Citizens (citizens at birth) but not all “born Citizens (citizens at birth)” are “natural born Citizens”: 

4. A Euler Diagram which logically shows the kinds of U.S. Citizens and their set and subset relationships:

5. The “Three Legged Stool Test” for being a Natural Born Citizen:

6. Article II Presidential Eligibility Facts:  or 

7. Watch these videos (Parts I and II) by the renowned constitutional scholar Dr. Herb Titus:  and

8. Read, download, and print a PDF copy of this White Paper by CDR Charles Kerchner (Ret) about the “natural born Citizen” term and presidential eligibility clause in Article II of our U.S. Constitution here:

9. Read the dozen of legal essays and court briefs written by constitutional and citizenship expert Attorney Mario Apuzzo on being a “natural born Citizen of the United States” and the pretenders and usurpers in three major political parties (Democrat, Republican, and Socialist parties) – who invalidly claimed such birth status – at his legal blog:

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