Congress – Societal and legal issues surrounding children born in the United States to illegal alien parents

Societal and legal issues surrounding children born in the United States to illegal alien parents : joint hearing before the Subcommittee on Immigration and Claims and the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 705, H.R. 1363, H.J. Res. 56, H.J. Res. 64, H.J. Res. 87, H.J. Res 88, and H.J. Res. 93, December 13, 1995 (1996)

Source: Societal and legal issues surrounding children born in the United States to illegal alien parents

Richard W. Flournoy, Jr. – Dual Nationality and Election – The Yale Law Journal – Vol. 30, No. 6, Apr., 1921

Inglis v. Trustees of Stailor’s Snug Harbor

I have spoken in some detail of the British law of nationality because  our own law of nationality was taken from it. While the Constitution  of the United States did not in its original form state what persons were to be considered citizens of the United States, it did speak of “natural  “born citizens,”‘0 and the courts, when called upon to decide who were  natural born citizens, held that this term referred to the English common law and should be construed in accordance with it. As early as  the year i804 Chief Justice Marshall, in rendering the decision of the  Supreme Court in the case of The Charming Betsy,” had assumed

that persons born in the United States were citizens of this country,  and in the case of Inglis v. Trustees of Stailor’s Snug Harbor,”2 Justice  Story, in the course of his opinion, said:

“Nothing is better settled at the common law than the doctrine that the  children even of aliens born in a country, while the parents are resident  there under the protection of the government, and owing a temporary  allegiance thereto, are subjects by birth.”

Source: Richard W. Flournoy, Jr. – Dual Nationality and Election – The Yale Law Journal  – Vol. 30, No. 6, Apr., 1921

Lynch v Clarke – Review of ruling

The whole subject of native citizenship was thoroughly reviewed by  Assistant Vice Chancellor Sandford in his admirable opinion in the  case of Lynch v. Clarke,”3 decided in i844. This opinion is notable  for its common sense and originality as well as for its unusual thoroughness and evidence of wide learning. Up to this time citizenship in the United States had been regarded generally as pertaining primarily to the individual states which had separately adopted the English common  law, but Judge Sandford treated citizenship as essentially national, and thereby anticipated by more than two decades the declaration concerning citizenship contained in the Fourteenth Amendment to the Constitution. In the course of his opinion he said:

“The provisions of the Constitution of the United States demonstrate that the right of citizenship, as distinguished from alienage, is a natural right or condition, and does not pertain to the individual states” (p. 641).

“Citizenship . . . is a political right, which stands not upon the  municipal law of any one state, but upon the more general principles- of national law” (p. 644).

“In my judgment there is no room for doubt, but that to a limited extent, the common law, (or the principles of the common law, as some prefer to express the doctrine,) prevails in the United States as a system of national jurisprudence” (p. 654).

“When the Union was formed and further state regulation on the point terminated, it follows, in the absence of a declaration to the contrary, that the principle which prevailed, and was the law on such point in all the states, became immediately the governing principle and rule of law thereon in the nation formed by such union” (p. 655).

“It is indispensable that there should be some fixed, certain and intelligible rules for determining the question of alienage or citizenship. The place of nativity furnishes one as plain and certain, and as readily to be proved, as any circumstance which can be mentioned” (p. 658).

Judge Sandford goes on to observe that, because of the presence in this country of alien immigrants in such large numbers, if jus sanguinis should be recognized as the sole basis of nationality, this “might lead to “the perpetuation of a race of aliens” (p. 673).14

Source: Richard W. Flournoy, Jr. – Dual Nationality and Election – The Yale Law Journal  – Vol. 30, No. 6, Apr., 1921