“Subject to the Jurisdiction”: You Can’t Have It Both Ways UPDATED with 2 Official Proclamations From The US Administration of 1859

Since the SD legislature has refused to address the birthright citizernship issue, I decided to give it another go with Sen. Thune on a national level.  As that “IS” the level of government in which it rightly should be addressed.

In my call to his office today I inquired:

Can the phrase “subject to the jurisdiction” mean one thing for persons born and another for persons naturalized without it specifically separating the two in the initial language of the bill? If it does not, then that would mean that either there is no constitutional provision for anchor babies aka birthright citizenship for children born to parents in which one or more is an alien or that the oaths that immigrants must take renouncing any and all foreign allegiances is wholly unconstitutional and the US State Dept must immediately cease and desist in requiring it. If it is as some claim, that mere birth alone creates citizens, then it would also leave the Expatriation Act of 1868 formally known as “An Act concerning the Rights of American Citizens in foreign States” completely unconstitutional and thereby creating complete chaos of the laws of nations not to mention the treaties signed by our government from its founding. The Expatriation Act of 1868, known as the sister act to the 14th Amendment, is still in force today as part of Title 8, while some parts of it were transferred under Foreign Affairs. This law is the basis for the renunciation oath that all immigrants must take and is the law which gives Congress the right & authority to rebuke a naturalized citizen’s US citizenship status & have that person deported for “bad behavior”. It is also the law that states that dual allegiance is not now nor ever has been part of our legal system. The Act states: “whereas it is claimed that such American citizens, with their descendents, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed” and then goes on to declare ” is hereby declared inconsistent with the fundamental principles of this government”.

From all the research into the congressional archives & past legislation that I have done from our founding to the present, and all the historical evidence that I have acquired, it is my conclusion that “subject to the jurisdiction” as it is written into the law can not suppose to repudiate itself nor are laws to be made that create redundancy. Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 562 (1995). I would like to hear how Sen. Thune, being a lawyer & writer/author of our laws can suppose a phrase mean two different things in the same law without specifically addressing them separately?

The 1995 Supreme Court case of  Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 562 concluded that:

[562] The Act’s structure and § 12’s language reinforce this view. In addition, since the primary innovation of the Act was the creation of federal duties-for the most part registration and disclosure obligations-in connection with public offerings, it is reasonable to conclude that the liability provisions were designed primarily to provide remedies for violations of these obligations rather than to conclude that § 12(2) creates vast additional liabilities that are quite independent of them. Congress would have been specific had it intended “prospectus” to have a different meaning in § 12. Pp. 570-573 . . . [563] The Act’s legislative history clearly indicates that Congress contemplated that § 12(2) would apply only to public offerings by an issuer or controlling shareholder, and nothing in that history suggests that Congress intended to create a formal prospectus required to comply with both §§ 10 and 12, and a second, less formal prospectus, to which only § 12 would be applicable. Pp. 578-584.

In other words, when a “term” or “phrase” of the law pertains to two different subject matter, unless otherwise stated in the statute by congress, the “term” or “phrase” shall be interpreted as to not repudiate itself.

The 14th Amendment is a prime example of this rule of law, i. e. birth & naturalization. According to Justice Kennedy, who delivered the opinion of the court in Gustafson v. Alloyd Co., Inc. on the rules pertaining to interpretation of laws, we can now surmise that the phrase “subject to the jurisdiction” in the 14th Amendment shall have the exact same meaning for the one as it does for the other unless otherwise stated specifically by Congress in subsequent legislation or in the definitions of the “terms” & “phrases” of that law that is written in the US code .

Furthermore, according to Justice Kennedy the corresponding legislation to the 14th, the Expatriation Act of 1868 being that subsequent legislation, shall also have no affect on the law as to create any redundancy or repudiation of the 14th & the 1866 Civil Rights Act which held the verbiage of the codified law until it was changed in 1940 when the 14th & the 1866 Acts were consolidated into one.

Constitutional & legislative interpretation was written centuries ago and after the revolution there was but a couple of law schools in the US. It wasn’t until 1833 that Supreme Court Justice Joseph Story, also founder of Harvard Law school, wrote in his commentaries about constitutional interpretation that is still cited to this day. Chapter 5 titled “Rules of Interpretation”, Section 188 & 194 of his Commentaries on the Constitution of the United States:

§ 188.  IV. From the foregoing considerations we deduce the conclusion, that as a frame or fundamental law of government, (2.) The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred.  By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution; that which will give it efficacy and force, as a government, rather than that, which will impair its operations, and reduce it to a state of imbecility.  Of course we do not mean, that the words for this purpose are to be strained beyond their common and natural sense; but keeping within that limit, the exposition is to have a fair and just latitude, so as on the one hand to avoid obvious mischief, and on the other hand to promote the public good.

§ 194.  VIII. No construction of a given power is to be allowed, which plainly defeats, or impairs its avowed objects.  If, therefore, the words are fairly susceptible of two interpretations, according to their common sense and use, the one of which would defeat one, or all of the objects, for which it was obviously given, and the other of which would preserve and promote all, the former interpretation ought to be rejected, and the latter be held the true interpretation.  This rule results from the dictates of mere common sense; for every instrument ought to be so construed, ut magis valeat, quam pereat (the interpretation that makes a contract valid rather than the one that makes it invalid; law.nyu.edu).

And this brings us to the power granted to Congress regarding citizenship. Article 1, Section 8, Clause 4:

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Congress was afforded the power to naturalize citizens, but only nature could provide for the “natural born”. Naturalized citizens are required by law to formally renounce, in front of a judge, any and all allegiances they may have to any foreign sovereign, potentate or nation & relinquish any and all titles of nobility to or of the same. They must declare that they personally & individually consent to hold but one citizenship, that of the United States. Therefore, the term “subject to the jurisdiction” means owing allegiance to one & ONLY ONE nation which is also currently noted in the historical archives of the Library of Congress on Immigration & Naturalization (1840-1950 when women, under law, were formally granted the right to keep a separate citizenship than that of their husband thereby adding to the destruction of the unified family under the laws of Nature & Nature’s God).

Married women and children under the age of twenty-one derived citizenship from their husband or father respectively. Children of unsuccessful applicants could apply for citizenship in their own right, at the age of twenty-one.

The one thing I have yet to find is a US law which specifically repealed the law of nations doctrine of transference of citizenship to children born in wedlock in a country where the father is a foreigner. All the citizenship treaties between the US and foreign nations were written based on the laws of nature & nations. I have yet to find in the international laws, reference that a child who is born in wedlock to parents who are citizens of different nations receives the nationality of both parents. As far as I can find, the doctrine described above from the Library of Congress pertaining to children born in these cases, is still on the books but hidden rather good in the extensive codes that are hard to manuever through. Common sense tells us that at some point these children will have to make a formal declaration as to which country they want to be a citizen of as an adult and it would require a formal renunciation of one of those citizenships they supposedly acquired. In my mind & from my understanding of the law, these children are really citizens of neither. They merely partake in the rights of their parents, the benefits & rights of which ever parent best suits their needs on any given particular day without having to show a complete and absolute allegiance to either nation.

The naturalization laws from 1790- reflected what was already required of those born in the United States from July 4, 1776, that they be born to parents who did not owe any allegiance to any foreign nation. Rep Bingham, framer of the 1866 Civil Rights Act, the 14th Amendment & the subsequent legislation of the 1868 Expatriation Act:

 “All from other lands, who by the terms of [congressional] laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians.” (Cong. Globe, 37th, 2nd Sess., 1639 (1862))

I find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen (Cong. Globe, 39th, 1st Sess., 1291 March 9, 1866 )

And later after the passing of the 14th & the Expatriation Act we find Bingham once again on the floor of Congress in 1872 debating legislation pertaining to a US citizen jailed in Cuba:

As to the question of citizenship I am willing to resolve all doubts in favor of a citizen of the United States. That Dr. Houard is a natural-born citizen of the United States there is no room for the shadow of a doubt. He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution, as amended to-day, he is declared to all the world to be a citizen of the United States by birth. (The term “to-day”, as used by Bingham, means “to date”.  Obviously, the Constitution had not been amended on April 25, 1872. by Leo Donofrio, Esq.)

Mr Speaker, the next point in the issue is as to expatriation. Expatriation is one of the most imprescribtible right of men. To assert it the American government waged war against Great Britain, in what is known in our history as the “second war for independence,” for three years. The right of expatriation is one of the fundamental principles of American government. (Cong. Globe, House of Representatives, 42nd Congress, 2nd Session page 2791)

First, the “second war for independence” that Rep Bingham is referring to is of course the “War of 1812” in which Great Britain was not acknowledging the rights of former British subjects who had become naturalized in the United States as well as children born on American soil to former founding British subjects who had adhered to the American revolution. The British government was clinging bitterly to their feudal doctrine of perpetual allegiance, once a Brit always a Brit, that the founders had cast off to adopt the laws of Nature & Nature’s God. Secondly, if the nationality of the parents at the time of the child’s birth was immaterial to gaining US citizenship, Bingham would have merely stated that “Dr. Houard is a natural born citizen because he was born in the jurisdiction of the United States“. 

Now previous to Bingham’s statements on the floor of Congress from 1862 to 1872 which was never disputed, we find an even earlier reference that was also not disputed regarding allegiance & citizenship and how children of foreigners born on US soil gain citizenship:

28th Congress, 2nd Session page 129 

First, the act of 1802, which repeals all former acts…provides for the children of aliens, whether born within or out of the United States: 

SEC 4 And be it further enacted That the children…who previous to the passing of any law on that subject by the government of the United States may have become citizens of any one of the said states under the laws thereof being under the age of twenty one years at the time of their parents being so naturalized or admitted to the rights of citizenship shall if dwelling in the United States be considered as citizens of the United State (April 14 1802 US Statutes at Large Vol 2 pg 155)

There is no ambiguity here. “Subject to the jurisdiction” means owing allegiance to ONLY the Unites States, either at birth or by naturalization. Children of foreigners, whether born here or abroad do not gain citizenship as a child until the parents themselves become citizens. This is the doctrine of citizenship through tacit consent that goes back to the time of Adam & Eve. Society is supposed to desire this, in consequence of what it owes to its own preservation. It is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country. (Law of Nations Bk1, Chap 19, Sec. 212)

Native refers to soil, Natural refers to blood. To this there is no dispute in the laws of God, of Nature & of man. (Webster’s Dictionary for the US Constitution (1828) Vol 1 and Vol 2 per request by the US Congress). And although according to Title 8 of the US Code, natives may be Nationals, not all Nationals are US citizens and they certainly are not natural born citizens because under the color of the law, one can not pass naturally to their minor child by the law of tacit consent that which they themselves first do not possess.

So No, You Can’t Have It Both Ways!

UPDATES:  NY Times 1859 natural-native defined by US Govt Administration  










NY Times 1859 natural-native defined by US AG


























Linda Melin, citizen researcher

H/T to Leo Donofrio, Esq. @ Natural Born Citizen & his citizens researchers and my many fellow citizen researchers at Free Republic

copyright 2011

No part of this article may be reprinted or cross-posted without the express consent of the author. However, the references contained herein that are linked are in the public domain and are there to ease the burden of others in their own research so they may write their own original articles.

5 thoughts on ““Subject to the Jurisdiction”: You Can’t Have It Both Ways UPDATED with 2 Official Proclamations From The US Administration of 1859

  1. Sorry Voter March 18, 2011 at 5:47 pm

    > one can not pass naturally to their minor child by the law of tacit consent that which they themselves first do not possess

    That is incorrect in this generality; otherwise even “born of citizen parents” would not suffice to be natural born, you’d have to have natural born citizen parents.
    Well, good luck for any presidential candidate to prove that *all his/her ancestors* back until the days of the Founders were natural born citizens. I doubt anyone could do that.

    • constitutionallyspeaking March 18, 2011 at 6:15 pm

      “Natural born” is the affect of being born on the soil to parents who are citizens regardless whether the parents were naturalized or natural born citizens themselves. In the case of naturalized parents, it only mattered that the parents naturalization was finalized prior to the birth of the child, i.e. Dr. Houard. This guaranteed that the child held alleigiance to but one nation at birth. So it is you who is incorrect and completely ignorant of that which you comment on.

  2. slcraig March 29, 2011 at 8:02 am

    I’m curious how you would respond to the ‘Statement of Adjudicative Fact” that is the ‘statutory basis’ of the case I continue to pursue………

    “Currently, as of the date and time of this Notice, there is no ‘legally acknowledged definition’ of the Constitutional idiom of ‘natural born Citizen’ as found in the Executive qualification Clause at Article II Section I Clause V of the Constitution of the United States, not in any specific words within the Constitution, not in any promulgated Legislation Codified to Statutes, not in any of the various Amendments to the Constitution, not in any Declaratory Statement and/or Judgement emanating from any level of the Constitutionally authorized Judiciary, notwithstanding the ‘Act to make uniform the laws of naturalization’ of the 1st Congress of 1790, repealed by the 3rd Congress of 1795 and within various dicta found in the various Federal Court Opinions, none of which was the specific question(s) of the case(s) in regard to the subject idiom.”

    I guess I would have to know what your definition of “currently” means? Only after the ratification fo the 14th? Only after the WKA ruling? Prior to WKA & after the 14th there is the Slaughter House Cases, Minor v Happersett & then Elk v Wilkins which in the holding of the case, held that the 14th was constitutional. All the cases define “subject to the jurisdiction” and cite Bignham’s statement on the floor of the US House. Even Gray in the WKA case cites Bingham’s statement in Minor and thus is the reason he declared WKA to be as much a citizen AS the natural born. Gray knew he couldn’t go as far as to claim WKA was a natural born citizen.

    After WKA, we have the Perkins v Elg case of 1939. In that case, the court describes Elg as being born to 2 citizen parents on US soil by going into detail of the parents immigrating to the US & becoming naturalized US citizens prior to Elg being born. The court upheld the lower court ruling declaring that Elg was a “natural born” citizen. If the status of the parents was immaterial, then the court would have upheld the lower court ruling by the simple fact of Elg’s birth on the soil regardless of the parents nationality at the time of her birth.

    Leo has another great article out today that includes a recent (1968) SCOTUS case pertaining to interpreting laws & Constitutional Amendments: http://naturalborncitizen.wordpress.com/2011/03/29/justice-hugo-black-in-duncan-v-louisiana-indicates-obama-would-not-be-eligible-ineligibility-echoed-by-former-attorney-general-jeremiah-black/#respond

    But to say that “natural born” has never been defined by legal authorities is just plain wrong and the articles I found from 1859 are proof of that. They are proof of what Trumbull, Bingham and all the others said about the 1st part of the 14th, that it is merely declatory of what US citizenship laws have been since our founding. Born, owing allegiance to no foreign power. It is political jurisdiction, not some theory that one owes obedience to the laws. Everyone, not matter where they may go, owes obedience to the laws. This is called “local jurisdiction” and is often confused with “political jurisdiction”. Political jurisdiction makes a citizen, either by birth or naturalization and their alleigiance is exclusively to the United States either at birth or by naturalization.

  3. slcraig March 29, 2011 at 1:44 pm

    Well, currently as of 2011… and I do agree that there has been and ‘currently’ is a UNDERSTANDING of the historic ‘legal’ definition within certain segments of the population and an alternate UNDERSTANDING in others.

    The stuff tha cases and controversies are made of.

    However, ALL of the Court Opinions that may have ‘incidentally’ included an expression of a definition or reciting of circumstances requisite to being a natural born Citizen fail in being “Judicial Dictum” in that the question of the definition of natural born Citizen was NEVER the question before the Court in any case of record fully adjudicated to conclusion.

    I understand the reluctance of many who hold the the ‘definition’ of natural born Citizen needs no ‘statutory expression’.

    I hold that the Clause in which the idiom resides is its-self sufficient “statutory construction’ in need only of a ‘Declaratory Judgment’ by the SCOTUS proffering its interpretation of the idioms ‘definition, meaning and intent’.

    As to the 14th and WKA, neither have any impact on the idiom, or upon the Clause where it resides.

    I have spent 2 1/2 years seeking to be “Certified” as an American natural born Citizen by any and all Branches of the Federal Guv’mnt, all to no avail. The closest I’ve come is to be acknowledged as a “native born U.S. citizen” by the DHS/USCIS, so I do speak with some authority when I assert that currently there is no acknowledged legal definition of the Constitutional idiom of natural born Citizen.

  4. The Unraveling Of Barry | BARACK OBAMA April 27, 2011 at 2:36 pm

    […] cases impacting the definition. Additionally, the fantastic research of “citizen researcher”Linda Melin of the web site Constitutionally Speaking at this link provides even more legal analysis and documentation on the natural born citizen […]

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