Warm Southern Breeze

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Consistently Reaffirmed

Posted by Warm Southern Breeze on Saturday, August 15, 2020

Here’s another argument for the jus soli case for citizenship, versus the jus sanguinis.

Just in the case you may not be aware of the two terms’ meaning, they are Latin literally interpreted as “law of soil,” and “law of blood,” more commonly referred to as “by soil,” and “by blood,” respectively, and refers to the principle of citizenship being obtained from the location of one’s birth, and of citizenship obtained through ancestry of one’s parents’ citizenship.

Here’s a simple explanation to further clarify:
• Under the principle of jus soli, one who is born in San Francisco, California is a citizen of that city, state, and of the United States.
• Under the principle of jus sanguinis, one who is born in San Francisco to parents of Indian and Jamaican extraction is Indian and Jamaican.

Once again, jus soli refers to “the principle that a person’s nationality at birth is determined by the place of birth,” while jus sanguinis refers to “the principle that a person’s nationality at birth is the same as that of his natural parents.”

Historically, jus sanguinis came from Roman law, whereas jus soli came from English common law.

Before proceeding further, some background is helpful for greater understanding.

Kamala Harris with her Jamaican grandmother Miss Chrishy in Browns Town Jamaica

The jus soli system, sometimes also referred to as the “birthright citizenship” system, is common in developed nations that desire to increase the number of their own citizens (population).

A few nations that use jus soli are:
• Argentina
• Barbados
• Brazil
• Canada
• Colombia
• Jamaica
• Mexico
• Pakistan
• Peru
• United States
• Uruguay

Several European nations follow the principle of jus sanguinis, which generally means that citizenship is conferred by birth, and is obtained from a parent who is already a citizen of, or naturalized in that nation. The principle of jus sanguinis is contrary to jus soli because, according to the principle, the mere fact that a person is born in a nation does not, in and of itself, confer citizenship.

Some European nations that use jus sanguinis are:
• France
• Germany
• Greece
• Ireland
• Luxembourg
• Portugal
• Romania
• Spain
• United Kingdom

Some nations have a blend of the two – soli, and sanguinis – although one is typically predominate.

If a nation adheres to the “jus sanguinis” or right of blood system, the child inherits a parent’s citizenship. So, for example, if your father and mother were each from a different jus sanguinis nation and you were born in a jus soli jurisdiction, you would be able to claim citizenship in three countries.

And, as is often the case, there are exceptions to whatever rule a nation follows because of treaties with other nations, including, for example, the determination of citizenship of children born to foreign diplomats, who are recognized as being citizens of the country that sent their parents there, as is done in the United States.

As well, people born on a foreign flagship or airliner are entitled to claim citizenship in the country under whose flag the vessel was registered.

The 14th Amendment, Section 1 states, “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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Kamala Harris being held by her Jamaican Great Grandmother, Iris Finegan

In 1898, the SCOTUS ruled in United States v. Wong Kim Ark about Mr. Ark, an American citizen of Chinese heritage (his parents were from China, and subjects of the emperor), who was born in San Francisco in 1873.

The SCOTUS case states that “His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China; and during all the time of their residence in the United States they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China.

“The question presented by the record is whether 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, “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.

“In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States; Chief Justice Marshall saying: “Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of that character otherwise than in such manner as may be prescribed by law, is a question which it is not necessary at present to decide.

“In Inglis v. Sailor’s Snug Harbor, (1830) 3 Pet. 99, in which the plaintiff was born in the city of New York, about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America.

“In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said: “The first section of the second article of the Constitution uses the language, `a natural-born citizen.’ It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”

Again citing Dred Scott in Ark, the SCOTUS wrote, “Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393; and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States.”

Also cited in Kim was the 1873 guidance “Opinions of the Executive Departments on Expatriation, Naturalization and Allegiance,” by U.S. Foreign Relations which stated in part that, “The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father.” Opinions of the Executive Departments on Expatriation, Naturalization and Allegiance, (1873) 17, 18; U.S. Foreign Relations, 1873-74, pp. 1191, 1192.

Kamala Harris’ Mom Shyamala Gopalan Harris, & Dad Donald Harris

Ark stated as well that, “In a very recent case, the Supreme Court of New Jersey held that a person, born in this country of Scotch parents who were domiciled but had not been naturalized here, was “subject to the jurisdiction of the United States,” within the meaning of the Fourteenth Amendment, and was “not subject to any foreign power,” within the meaning of the Civil Rights Act of 1866; and, in an opinion delivered by Justice Van Syckel, with the concurrence of Chief Justice Beasley, said: “The object of the Fourteenth Amendment, as is well known, was to confer upon the colored race the right of citizenship. It, however, gave to the colored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized, or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races; and unless the general rule, that when the parents are domiciled here birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the language, `all persons born in the United States, and subject to the jurisdiction thereof,’ was intended 693*693 to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race.”” Benny v. O’Brien, (1895) 29 Vroom (58 N.J. Law), 36, 39, 40.

Ark continued, “The foregoing considerations and authorities irresistibly lead us to these conclusions: The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

“To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States.”

The case conclusion was decided in the affirmative, and stated, “The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether 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. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”

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