SUMMARY
That's how to describe, without intending disrespect, the over-a-century-old grammatically incorrect view laid down in U.S. v. Wong Kim Ark (1898) of the phrase enclosed between a pair of commas, "and subject to the jurisdiction thereof," in the Citizenship Clause of the Fourteenth Amendment,
For rather than act as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States," as viewed in U.S. v. Wong Kim Ark (1898), the phrase was intended grammatically to act instead as the SECOND of a COMPOUND subject of the clause that the author, Senator Jacob Merritt Howard of Michigan, structured as an ELLIPTICAL.
Senator Howard achieved this elliptical phrasing by enclosing the phrase between a PAIR OF COMMAS and inserting the crucial FIRST comma before the conjunction "and" (the second before the linking verb "are"), thereby allowing him to OMIT for brevity or style the main noun phrase, "all persons," common to both subjects.
Senator James Doolittle of Wisconsin quoted the complete construction of the elliptical during the debate to read, "all persons subject to the jurisdiction of the United States."
-------------------------------------------------------------------------------------
Justice Horace Gray in U.S. v. Wong Kim Ark (1898), interpreted the words "subject to the jurisdiction thereof" in the citizenship clause of the Fourteenth Amendment as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States," for the reason--
“… to exclude … the two classes of cases--children born of alien enemies in hostile occupation and children born of diplomatic representatives of a foreign state, both of which ... had been recognized exceptions to the fundamental rule of citizenship by birth within the country.”
Dissenting, Chief Justice Melville Fuller (Justice John Marshall Harlan concurring) countered:
“Was there any necessity of excepting them? And, if there were others described by the words, why should the language be construed to exclude them … There was no necessity as to them for the insertion of the words, although they were embraced by them …”
“If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect.”
Earlier in Elk v. Wilkins (1884), Justice Harlan (Justice William Woods concurring), in dissent, argued a different view:
“Our brethren, it seems, construe the Fourteenth Amendment as if it read: ‘All persons born subject to the jurisdiction of, or naturalized in, the United States are citizens of the United States and of the State wherein they reside;’ whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States.”
So, mark this: To Justice Harlan, dissenting, persons acquire “the rights of national citizenship” under the citizenship clause not only at birth, “born in the United States”; but also, more importantly, “from and after the moment they become subject to the complete jurisdiction of the United States,” meaning after birth, “in respect of persons born in this country.”
In a word, the clause is not just about jus soli after all; for what Justice Harlan is saying here is that the clause should be read as likewise conferring citizenship upon persons who “become subject to the complete jurisdiction of the United States” after birth.
In fact, the author himself, Senator Jacob Merritt Howard of Illinois, in his sponsorship speech, already declared that the clause he proposed “will not, of course, include” the “recognized exceptions” Justice Gray speaks of.
“Mr. HOWARD ... This amendment I have offered … will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States." (Cong. Globe, 39th Congress, 1st Session, p. 2890, 2nd col., 2nd par., May 30, 1866) http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11
Having said that (underscore the adverb “of course”), why would Senator Howard still provide (six words in all, at that) for such redundant, superfluous “exceptions” already “recognized,” in the words of Justice Gray himself, “from the time of the first settlement of the English colonies in America”?
So, how is the phrase to be read as Senator Howard, the author, had intended?
Senator James Doolittle of Wisconsin during the debate viewed the phrase differently (printed in quotation marks in the scanned original transcript):
"Mr. DOOLITTLE ... But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language which he [Senator Howard, the author] uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does ..." (p. 2897, 1st col., 2nd par.) http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=18
To repeat for emphasis the phrase Senator Doolittle cited as "the language which he [Senator Howard, the author] uses":
"All persons subject to the jurisdiction of the United States"
Now why would Senator Doolittle ADD the words “all persons” to the phrase “subject to the jurisdiction of the United States” (or “thereof”)?
Remarkably, the answer may lie embedded in the innocuous PAIR OF COMMAS Senator Howard enclosed the words “and subject to the jurisdiction thereof” with.
Take note at this instance that the words "or naturalized" in the clause as ratified in 1868 do not appear in the draft Senator Howard proposed that was debated and "agreed to" on the same day he submitted it on May 30, 1866; rather, these words were inserted a full week later on June 8th, upon motion of Senator William Pitt Fessenden of Maine (without any debate) (p. 3040, 2nd col.) (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=161)
So, sans the words “or naturalized,” Senator Howard's proposed clause reads:
"All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." (p. 2890, 2nd col.)http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11
By inserting the first comma before the conjunction “and“(the second before the linking verb "are"), Senator Howard is grammatically conveying the intention that the subject of the clause he proposed is structured as a COMPOUND.
The compound subject Senator Howard drafted consists of the opening phrase “All persons born in the United States,” which acts as the FIRST subject, and the phrase immediately following it, “subject to the jurisdiction thereof,” which serves as the SECOND subject of the compound--and certainly NOT as a “qualifying” phrase of the element preceding it (the FIRST subject), as mistakenly viewed in Wong Kim Ark.
Hence, the phrase Senator Doolittle quoted during the debate, cited above, is the complete construction for the SECOND subject of the compound:
“All persons subject to the jurisdiction of the United States”--at birth (natural-born) or after birth (naturalized).
This reading of the phrase is precisely what Justice Harlan, dissenting in Elk, insisted--“from and after the moment they become subject to the complete jurisdiction of the United States.”
What this means, of course, is that the complete construction of the compound subject in the clause Senator Howard proposed consist of--
First subject - “All persons born in the United States”
Coordinator - and
Second subject - “[All persons] subject to the jurisdiction thereof”
Note the repeated noun phrase “all persons” in both the First and Second subjects.
Take note too of the consistency, oneness of intent in the language employed in the two Post-Civil War amendments--Equal Protection in the two distinct areas of concern in relation to the PERSON: (1) "born in the United States"; and (2) "subject to the jurisdiction of the United States.”
THIRTEENTH (1865): The abolition of Slavery or involuntary servitude inflicted upon persons:
(1) "within the United States"; or
(2) "any place subject to their jurisdiction."
FOURTEENTH (1868): The protection and the benefits, privileges and immunities U.S. Citizenship confers upon “all persons”:
(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof"
During the debate, Senator Lyman Trumbull, Judiciary Committee Chair and author of the 1866 Civil Rights Act, defined the phrase “subject to the jurisdiction thereof”:
"Mr. TRUMBULL … What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means ... It cannot be said of any Indian who owes allegiance, partial if you please, to some other government that he is 'subject to the jurisdiction of the United States.'" (2894, 1st col.) http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=15
As regards the concept of “allegiance,” Chief Justice Morrison R. Waite in Minor v. Happersett (1874) held that (cited in Wong Kim Ark):
“Allegiance and protection are, in this connection (that is, in relation to citizenship) reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance."
Dicey in Conflict of Laws (1896) underlined the significance of “jurisdiction” in relation to “place of birth” in jus soli (cited in Wong Kim Ark):
"... though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England."
Thus, Justice Noah Haynes Swayne in U.S. v. Rhodes (1866) proclaimed (cited in Wong Kim Ark):
"All persons born in the allegiance of the United States are natural born citizens."
Justice Swayne was, of course, merely reiterating Lord Coke's declaration in Calvin's Case or the Case of the Postnati (1608) “based on the divine law of nature”:
“It is neither the climate nor the soil but allegiance and obedience that make the subject born." http://www.uniset.ca/naty/maternity/77ER377.htm
In other words, under Senator Howard’s proposal, the reciprocal duty of allegiance solely to the United States that a person “subject to the jurisdiction thereof” is obligated to owe at birth (natural-born) or after birth (naturalized)—or in Senator Howard’s own words, “by virtue of natural law and national law”--in compensation for the protection so afforded becomes the singular determinant to the acquisition of citizenship of the United States.
But what of the missing noun phrase, “all persons,” in the second subject?
To untangle the difficulty writers usually encounter in phrasing a "repeated subject" in coordinate configuration, Senator Howard relied on the grammatical device of an ELLIPTICAL by inserting the first comma before the conjunction “and.”
Employing an elliptical allowed Senator Howard to OMIT, for brevity or style, the repeated noun phrase “all persons” in the Second subject, to be understood or implied from the phraseology of the precedent First, rather than to be awkwardly expressed or repeated in the Second subject of the compound.
As if to emphasize the author’s reliance on the grammatical device of an elliptical (to those, perhaps, who may be reluctant to concede his use of the device later) as the means to convey his intent in describing a compound in “coordinate configuration,” there is this second elliptical Senator Howard employed in structuring the other compound in the clause he proposed. And this is the compound object of the linking verb “are”
"… citizens of the United States and [citizens] of the State wherein they reside."
Here, the second object, "citizens," common to both, and similarly joined to the first by the coordinator “and,” is likewise omitted rather than stated or repeated for brevity or style and inferable from the same object, "citizens," in the first it is coordinate with.
Add to that, the second negative in the penultimate line in Sec. 1 of the Fourteenth (the same section as the Clause) is likewise structured as an elliptical, with the omission of the phrase "shall any State" (auxiliary verb and subject inverted), for brevity or style and inferable from that in the first negative--"nor shall any state deprive ..."--also introduced by a conjunction, "nor”;
“nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.”
Had Senator Howard really intended the phrase, “and subject to the jurisdiction thereof,” to act as a modifier, he would NOT have bothered to enclose it within a pair of commas. In fact, a "modifying" phrase is precisely what the same 39th Congress employed in a similar clause in the 1866 Civil Rights Act it enacted barely two months earlier by omitting the comma before the conjunction "and" to comply with the rule aforesaid:
"All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."
Here, owing to the omission of the comma before the conjunction "and," the phrase "not subject to any foreign power" is undoubtedly a "qualifying” phrase of the element preceding it, "All persons born in the United States."
Thus, even if both phrases in the clause (“and subject to the jurisdiction thereof”) and in the Act (“and not subject to any foreign power”) are deemed synonymous, what matters grammatically is how they are punctuated. Enclosing the phrase in the clause within a pair of commas would necessarily convey an entirely different meaning or intent as the “synonymous” phrase--sans the commas--in the Civil Rights Act.
The inclusion of this generic definition of citizenship of the United States in the Second subject of the clause--to cover both natural-born (subject to U.S. jurisdiction “at birth”) and naturalized (subject to U.S. jurisdiction “after birth”)--explains the reason why Senator Howard did not bother to include the phrase "or naturalized" in the clause he proposed which, as noted earlier here, was added merely as an afterthought a week after the Senate debated and approved his proposal on May 30, 1866.
In fact, Senator Howard during the debate mentioned the term "naturalization" several times over in the course of objecting to Senator Doolittle’s motion to insert the words "excluding Indians not taxed," arguing that the “direct effect” of Senator Doolittle’s amendment “would, in short, be a naturalization” or “an unconscious attempt … to naturalize all the Indians,” tantamount to “a sweeping act of naturalization,” specifically during the following instances (p. 2895) http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=16
"Mr. HOWARD. Suppose we adopt the amendment as suggested by [Senator Doolittle] … all that would remain to be done on the part of any State would be to impose a tax upon the Indians … in order to make them citizens of the United States … That would be the direct effect of his amendment if it should be adopted. It would, in short, be a naturalization, whenever the State saw it fit to impose a tax upon the Indians."
“Mr. HOWARD. The great objection, therefore, to the amendment is, that it is an actual naturalization, whenever the State sees fit to enact a naturalization law in reference to the Indians in the shape of the imposition of a tax of the whole Indian population within their limits."
"Mr. HOWARD. But the great objection to the amendment to the amendment is that it is an unconscious attempt on the part of my friend from Wisconsin to naturalize all the Indians within the limits of the United States. I do not agree to that … I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relationship, are to become my fellow-citizens.”
In other words, to Senator Howard, once a State imposes a tax upon the Indians within their limits, those subjected to the imposition become automatically “persons subject to the jurisdiction of the United States” and, accordingly, acquire citizenship of the United States by naturalization (after birth) as provided under the generic definition in the Second subject of the clause he proposed.
Besides, if, as claimed in Wong Kim Ark, the clause that Senator Howard proposed dealt only about the circumstance of being “born in the United States” or AT BIRTH, why would he refer to the “direct effect” of Senator Doolittle’s proposed amendment to the clause he authored as “naturalization”--the status a person acquires only AFTER BIRTH?
Interestingly, appending a generic definition of citizenship in the clause is wholly consistent with what Senator Howard highlighted in his sponsorship speech:
“Mr. HOWARD … This amendment which I have offered is simply declaratory of what I regard as the law of the land already … by virtue of natural law and national law a citizen of the United States [and] will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” (p. 2890, 2nd col.) http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11
As author, Senator Howard here emphasizes that the clause he crafted--
--“will include every other class of persons” (including the children of U.S. citizens born abroad who are doubtless “subject to the jurisdiction of the United States” at birth)
--“settles the great question of citizenship”
--“removes all doubt as to what persons are or are not citizens of the United States”
So, does the current Wong Kim Ark reading of the citizenship clause satisfy fully the declared intent the author proclaimed in his sponsorship speech?
In fact, during the debate, Senator Howard highlighted the importance of this “great question of citizenship” that the comprehensive reach of his draft was intended to resolve:
“Mr. HOWARD. We desired to put this question of citizenship and the rights of citizenship and freedmen beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by its roots and destroy it, and expose the freedmen again to the oppressions of their old masters.” (p. 2896, 3rd col.) http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=17
To conclude: What has, no doubt, lead to all the confusion concerning the author’s intent is the ungrammatical reading of the clause that disregards altogether the pair of commas the author, Senator Jacob Merritt Howard, deliberately inserted to enclose the phrase “and subject to the jurisdiction thereof” with.
NOTE
At footnote 43 (pp. 6-7) of the paper, Domicile and Birthright Citizenship (http://ssrn.com/abstract=1497630), author Mark Shawhan cites the statement of Senator William Pitt Fessenden (at 2769): http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=072/llcg072.db&recNum=850
“Suppose a person is born here of parents from abroad temporarily in this country.”
Senator Fessenden was commenting on the proposal of Senator Benjamin Franklin Wade to insert an opening line to what is now the Fourteenth Amendment on May 23, 1866, a week before Senator Howard proposed his own version on May 30th, which read:
"Mr. WADE . In the first clause of the amendment which I have submitted, I strike out the word ‘citizens’ and require the States to give equal rights and protection of person and property to all persons born in the United States or naturalized by the laws thereof.”
So, Senator Wade's definition of a citizen is--"all persons born in the United States or naturalized by the laws thereof."
Interestingly, Senator Wade’s reply to Senator Fessenden’s question touches on the folly of providing for what are already the recognized exceptions:
“Mr. WADE. The Senator says a person may be born here, and not be a citizen. I know that is so in one instance, in the case of foreign ministers who reside ‘near’ the United States, in the diplomatic language. By a fiction of law, such persons are not supposed to be residing here, and under that fiction of law, their children would not be citizens of the United States, although born in Washington. I agree to that, but my answer to the suggestion is that that is a simple matter, for it could hardly be applicable to more than two or three or four persons; and it would be best not to alter the law for that case. I will let it come under that well-known maxim of the law, de minimis lex non curat, It would make no difference in the result. I think it is better to put this question beyond all doubt and all cavil by a very simple process.” (2769, 1st col., May 23, 1866)
The Latin maxim “de minimis lex non curat,” of course, means: “The law does not concern itself with trifles.”
A misplaced concern with “trifles” that “could hardly be applicable to more than two or three or four persons” was obviously what Chief Justice Fuller also had in mind when he said what was earlier cited above in his Wong Kim Ark dissent: “There was no necessity as to them for the insertion of the words, although they were embraced by them."
