Trump’s Birthright Citizenship Backfire: Six Fatal Mistakes—and One Big Failure to Research the Justices’ Own Family Histories

It was three weeks ago that the Supreme Court struck down the President’s executive order on birthright citizenship in Trump v. Barbara.

While there were murmurings about Congressional actions based on Justice Kavanaugh’s concurrence-dissent [which was internally inconsistent and displeased the person who facilitated his appointment to the Court, to wit the Chief Justice], and the President has stated that he will seek a rehearing. However, that would only expose more flaws with the Executive Order and the legal mistake as to trying to explain United States v. Wong Kim Ark, 169 U.S. 469 (1898).  However, there was no public outcry because the voters already made clear with their views. Based on family history and other factors they were satisfied with and agreed with the generally understood status quo.

The easiest way to stop non-citizens from having kids on US soil while not citizens is to prevent the issuance of Green Cards and to restrict the entry of people into the United States. Whatever one may say as to the President’s policies, no one disputes that a person who is not a US Citizen has no right to be in the United States. At the same time, as the Supreme Court has held people who are US Citizens have a constitutional right to enter the United States to have kids protected under the 14th Amendment.

In the three-week period there has been an exhaustive analysis of the Court opinions, concurrences, and dissents. The one key point that is overlooked is that no one has discussed the Justices’ family histories. To its credit, the New York Times did an article before oral argument after hiring genealogists and legal experts as to each Justice’s background.

Justice Gorsuch comes from the Pool of Citizens made citizens by operation of law by virtue of the Constitution as adopted in 1789 aka “We the People”. Three of the Justices [Thomas, Jackson and Sotomayor] ancestors were collectively naturalized by Acts of Congress either by the 1866 Civil Rights Act or the 1917 Puerto Rico Naturalization Act.

Justice Alito was born to a parent who was made a citizen via derivative naturalization well before he was born.

As to Justice Kavanaugh the sequencing was not clear but all his ancestors naturalized well before he was born as was the case with Justice Coney-Barrett.  However, as to Justice Kagan and Chief Justice Roberts, while their ancestors were all naturalized, it was clear that their parents, grandparents or great grandparents were born before their parents naturalized. In fact, the Times piece called Chief Justice Roberts whose ancestors were Slovakians and Irish a direct beneficiary of Birthright Citizenship which I am sure he read. The article also raised issues as to Justice Coney-Barrett’s family.

As I have often said, immigration is all about families. I would make two additional points to quote my late mother. One is that you do not get to choose your biological parents. The Constitution reflects that fact because the Treason Clause of the Constitution bars Treason Convictions as acting as an “Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” Corruption of the Blood is basically an ad infinitum disability on the heirs of the person convicted of Treason.

And, two, “Moms are moms, their spouses are their projects and their children are their life.”  Or to quote Nancy Pelosi who has 5 kids, “Moms and Grandmas are Lionesses when it comes to protecting their offspring.” You have 4 female Justices, 2 of whom are Moms. I can assure you that the Girls all talked about this at Conference.

In the case of the Chief Justice the Government was in effect retroactively challenging his citizenship. And, in the case of Justice Coney-Barrett the Government was challenging several of her family members citizenship. To quote Willie Lewis Brown, Jr. that was a “career ending decision”.

I would make the following legal points in case they were overlooked.

One, all the Justices agreed on 3 of the 4 points I made in my treatise of three weeks ago: (i) that children born on US soil to US Citizens while they were citizens [however they became citizens] were citizens themselves and could not be denaturalized without their express consent under Afroyim v. Rusk, 387 U.S. 253 (1967); (ii) that children born abroad to US Citizens[s] were citizens subject to certain condition subsequent that Congress could impose; and (iii) that children born abroad to non-citizens to become citizens had and have to go through a naturalization proceeding of some kind. In the case of children born abroad to non-citizens if below a certain age they were and are derivatively naturalized when the parents naturalize. That in fact was the case with Justice Alito’s father who was naturalized by that procedure and Justice Alito was born well after his father naturalized which likely affected his views.

Secondly, Chief Justice Roberts’ discussion of “subject to jurisdiction” equated the use of that term in Section 1 of the 14th Amendment to have the same meaning in the Equal Protection Clause of the 14th Amendment which provides that “nor deny to any person within its jurisdiction the equal protection of the laws." As such, the Chief Justice adopted the reasoning of Plyler v. Doe, 457 U.S. 202 (1982) even though he did not cite Plyler. Instead, he cited The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812) given his homage to Chief Justice Marshall. I would add that the language of the 14th Amendment was modified by a last-minute Amendment by Senator William Pitt Fessenden of Maine to include “persons naturalized within the United States” before the “subject to jurisdiction” language which was intended per Professor Thomas Lee of Fordham to recognize the Right of Expatriation – discussed below.

Three, for all the talk about Domicile, the Chief Justice noted that residency-domicile in the 14th Amendment only appeared once and that was as to State Citizenship for diversity litigation purposes and maybe as to the original Comity Clause which addressed an issue in Dred Scott. He correctly noted citing the Slaughterhouse Cases noting that a person could be a US Citizen without being a citizen of a State.

Four, as to dual citizens, Justice Kavanaugh did acknowledge that children born on US soil to Dual Citizens were citizens. Justice Thomas in his dissent stated that the domicile condition he read into the 14th Amendment avoided the “Dual Citizenship” concern. In all deference to Justice Thomas – and Expatriation did not receive a full discussion – given that many-many countries do not accept Unilateral Expatriation. The fact that one is domiciled here and naturalized here does not mean that the other country accepts that citizenship.

Five, in terms of the four exceptions to automatic citizenship at birth judicially recognized in the 14th Amendment, all the Justices agreed on the exceptions though Justice Kavanaugh mangled it in terms of the children being born to foreigners themselves without the second qualification that the area be outside U.S. Control. Justice Thomas’s dissent actually articulated them well. Justice Kavanaugh did acknowledge that children born on US soil to Dual Citizens were citizens.

In essence, the dissenters conceded that where the parents were not citizens, they were in essence born beyond the jurisdiction of US control. Taking the four exceptions, the rational for the same are as follows:

• As to children of diplomats, they were in essence – even if born in a US hospital – were under diplomatic immunity. While it is true that they could expatriate [not really discussed] but is an after-birth event. As I indicated there is a procedure - and this would have had to be made across the board to be consistent had the EO gone through - whereby kids of diplomats can naturalize.
• As to children born to persons who are part of an occupying force while the territory is in occupation, the territory is not under US Control. As Justice Story noted in United States v. Rice, [17 U.S. 128 (1819) wherein during the War of 1812, the port of Castine, Maine, was captured by the British forces and during its occupation the British Government exercised civil and military authority over the people, established custom-houses and collected duties on goods] noted that the area was not subject to US jurisdiction and albeit temporarily not part of the United States.

The general rule of International Law is that during foreign occupation persons who were citizens of the territory [and ergo their offspring] prior to the moment of occupation do not forfeit their citizenship. Forfeiture only occurs after a peace treaty and lands are exchanged.

While Justice Story’s concurrence-dissent in Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830) raised certain questions about this issue, the President’s Executive Order in effect treats them as citizens even though born outside US Control albeit temporarily. I believe that the Executive Order was correct because the effect of treating them otherwise would in effect denaturalize without consent in violation of the spirt of Afroyim v. Rusk.

• As to children born to Indians, Justice Thomas correctly noted Indians they were considered born in enclave akin to foreign territories. Native Americans had been collectively naturalized selectively and were made citizens across the board in 1924, so that is a moot issue.
• As to children born on foreign public vessels to noncitizens, in U.S. waters, that vessel was not considered US territory. The converse is also true. In United States v. Flores, 289 U.S. 137 (1933), the Court held that a murder committed on a US flagged vessel on the Congo River was committed in US Territory.

In my view, besides not understanding the Chief Justice’s background, the Government did not adequately deal with all the pre-existing precedent that accepted the breadth of Wong Kim Ark. Justice Kavanaugh correctly noted that the Executive Order contravened a federal statute, 8 U.S.C. §1401(a). However, at that point to guide Congress on what it could and could not do would be in the nature of an advisory opinion. While in various state constitutions the highest court is expressly empowered to do so, that is not allowed by the United States Constitution,

In terms of specifics, a slew of mistakes was made from the get go.

Mistake One was including LPR Holders as being protected. While designed to avoid embarrassing Marco Rubio and possibly Usha Vance, LPR holders are still non-citizens. Domicile and citizenship at birth have nothing to do with each other. In fact, it led Justice Gorsuch to argue that children of illegal aliens had more rights than persons born here to persons legally and “temporarily” here.

Mistake Two was not dealing with the current code section as to Foundlings and the fact that an allegedly Pro-Life Administration was in essence arguing for babies to be dumped at fire stations and in garbage cans to hopefully be found and placed for adoption. If the idea was to have the kid and leave, that is already in effect US Law.

Mistake Three that the Administration made is in not wanting to touch or directly deal with Wong Kim Ark.   I believe that the Administration could have explained Wong Kim Ark as being a case of statutory naturalization and the rest of it being dicta as Justice Alito argued. That would have dovetailed with Justice Kavanaugh’s statutory argument but that would still fail for the present purposes because of the bar to advisory opinions.

Mistake Four is that whatever else is clear, contrary to Justice Thomas’s dissent, the 1866 Civil Rights Act naturalized more than freed slaves or free African Americans. In fact, the rational for Dred Scott was that Congress had not allowed African Americans as a Class to naturalize in an individual naturalization proceeding so they as a class were not citizens. This ignored the fact the Congress had collectedly naturalized via treaties and implementing statutes African Americans as a class prior to Dred Scott.

In fact, as to Asians who could not per se naturalize in a naturalization proceeding until the 1950s because of Congressional statutes often ended up being naturalized via other procedures. At oral argument Justice Sotomayor mentioned United States v. Thind, 261 U.S. 204 (1923) to goad the Government into saying it was in fact seeking retroactive denaturalization which it denied. The Government instead stated that the rule in Sessions v. Morales-Santana, 582 U.S. 47 (2017). Sessions held that the Immigration and Nationality Act’s gender-based difference in physical presence requirements for unwed U.S. citizen parents violated the Fifth Amendment’s de-facto Equal Protection Clause component.

Morales-Santana involved a situation where the mother was a US Citizen but Morales-Santana was born abroad out of wedlock. There were different time periods in terms of US physical presence in the United States and as such the ability to convey derivative citizenship. In an 8-0 decision, the court found that the difference in physical presence requirements violated the equal protection clause and due process. The case had implications for Congress's plenary power over immigration and the issue of statelessness.

The remedy the court provided was to make the longer physical presence requirements apply to both unwed fathers and unwed mothers. The alternative option was to extend the shorter requirement for unwed mothers to unwed fathers. They argued that applying the shorter requirement would unfairly discriminate against married couples who are held to the longer requirement. However, Morales-Santana was a situation where the 14th Amendment did not apply and there was a statutory procedure – albeit perfunctory – to naturalize the child.

As to Thind, 1923, the Supreme Court of the United States decided that Bhagat Singh Thind, an Indian Sikh man who identified himself as an Aryan, was ineligible for naturalized citizenship in the United States. In 1919, Thind filed a petition for naturalization under the Naturalization Act of 1906 which allowed only "free white persons" and "aliens of African nativity and persons of African descent" to become United States citizens by naturalization. It so happened that Thind also served in the US military during World War I.

After his petition was granted, government attorneys initiated a proceeding to cancel Thind's naturalization and a trial followed in which the government presented evidence of Thind's political activities as a founding member of the Ghadar Party, an Indian independence movement headquartered in San Francisco. Thind did not challenge the constitutionality of the racial restrictions. Instead, he attempted to be classified as a "free white person" within the meaning of the Naturalization Act based on the fact that Indians and Europeans share common descent from Proto-Indo-Europeans.

The Court unanimously rejected Thind's argument, adding that Thind did not meet a "common sense" definition of white, ruling that Thind could not become a naturalized citizen. The Court concluded that "the term 'Aryan' has to do with linguistic, and not at all with physical characteristics, and it would seem reasonably clear that mere resemblance in language, indicating a common linguistic root buried in remotely ancient soil, is altogether inadequate to prove common racial origin."

As a result of the U.S. Supreme Court decision finding that no person of Indian origin could become a naturalized American, the first person from the Indian subcontinent to become an American citizen, A. K. Mozumdar, had his citizenship revoked. A decision on his appeal to the Ninth Circuit Court of Appeals upheld that revocation.

Up to fifty Indian Americans had their citizenship revoked between 1923 and 1927 as a consequence of the Thind ruling. As they had given up citizenship elsewhere to become naturalized United States citizens, when their United States citizenship was revoked, these Indians became stateless. Even Thind's own lawyer, Sakharam Ganesh Pandit, was targeted for denaturalization. However, Pandit successfully argued before the Ninth Circuit that revoking his citizenship would do him and his wife unfair harm under the equitable estoppel doctrine. His citizenship was upheld, and the Bureau of Naturalization subsequently cancelled its pending denaturalization cases against Indian American citizens.

Thind however was granted naturalization because Congress passed the Nye-Lea Act, which made World War I veterans eligible for naturalization regardless of race. Based on his status as a veteran of the United States military during World War I, he was finally granted United States citizenship nearly two decades after he first petitioned for naturalization. In 1946, President Truman signed the Luce–Celler Act which reversed the Thind decision by explicitly extending racial eligibility for naturalization to natives of India, and set a token quota for their immigration at 100 per year.

Mistake Five was that there were additional factors present in Wong Kim Ark that were not discussed but are relevant to my sequencing argument noted below. Wong Kim Ark was born prior to the Exclusion Acts so what happened thereafter was irrelevant. If the argument is that because the parents could not naturalize in an individual proceeding, neither could African Americans at the time of the adoption of the 1866 Civil Rights Act or the adoption of the 14th Amendment. That being the case, the underpinnings for the dissent in Wong Kim Ark evaporated. The inability to naturalize in an individual proceeding was the criteria in Dred Scott to hold Blacks could not be citizens. The entire purpose of the 1866 Civil Rights Act was to collectively naturalize them and others as a class.  In fact, today there is no bar based on sex, creed or color to naturalizing persons in an individual proceeding.

The parents of Wong Kim Ark were not described in the contemporary record as “illegal aliens”; they were Chinese subjects who maintained a domicile and residence in San Francisco at the time of their son’s birth. However, to assert that they resided permanently in the United States is false. Shortly after Wong Kim Ark’s birth they left the United States never to return. Moreover, equating “permanent domicile and residence” in 1898 with today’s green‑card status is legally and historically mistaken.

As Justice Thomas noted correctly, relying on its enforcement powers under the 14th Amendment reenacted the 1866 Civil Rights Act in 1870 to “make legal” what it did in 1868 with the addition that Africans could be naturalized in an individual proceeding.

As noted above, when Wong Kim Ark was a child, his parents took him back to China. His parents never returned to the United States, while he returned to California with an uncle a few years later and worked as a dishwasher and cook in a mining camp in the Sierra Nevada mountains. In 1889, he left for China and returned to his family's village in Taishan, Ong Sing. While in Taishan, Wong Kim Ark married Yee She, who was from a village near his familial one. He returned to California in 1890, where he settled in San Francisco and resumed working as a cook, leaving behind in Taishan not only his parents but also his wife, who gave birth to their first son after he left.

Under the Chinese Exclusion Act of 1882, he as a laborer could not bring his wife to the United States even if a citizen. Upon arrival alone at San Francisco in July 1890, he was readmitted on the ground that he was a native-born citizen of the United States, but only after an unnamed Bureau of Immigration official left a note in his file questioning the veracity of his claim of birth in the United States.  In November 1894, Wong sailed to China for another temporary visit to his family in Taishan.

It was only after the third re-arrival within the United States was his citizenship questioned. The only rational for exclusion was that he was not a citizen. In Thind the Government as to Thind’s lawyer lost on equitable estoppel grounds. While in INS v. Miranda, 459 U.S. 14 (1982) (per curiam) the Court limited equitable estoppel in immigration cases it did not eliminate it. As noted in Miranda that “(i)n two cases involving denial of citizenship, the Court has declined to decide whether even ‘affirmative misconduct’ would estop the Government from denying citizenship, for in neither case was ‘affirmative misconduct’ involved.” Id., at 788. In my view, Wong Kim Ark involved affirmative misconduct.

In fact, it appears that the domicile issue was raised in the context of Expatriation which involved Wong Kim Ark being taken back to China as a child. While Expatriation was noted by the Chief Justice in his Trump opinion as being a back-end transaction, he did not get full explanation. Expatriation is a doctrine on which America is built on. In essence it states that irrespective of the views of the sovereign’s, one can effectively and unilaterally renounce one’s citizenship in a country.

While Chief Justice Marshall noted in Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804) noted the unsettled question of whether an American citizen “can divest himself absolutely of” his citizenship, the same Congress that adopted the 1866 Civil Rights Act and sent to the States the 14th Amendment passed a statute that President Johnson signed recognized the right of all persons to expatriate and change their citizenship. The actual formalities of doing so weren’t put in statute until 1907 and that statute was invalidated in Afroyim and was subsequently rewritten and partially sustained as re-written in Vance v. Terrazas, 444 U.S. 252 (1980).

Vance built on Afroyim by holding that a United States citizen cannot have their citizenship taken away unless they have acted with an intent to give up that citizenship. The Supreme Court overturned portions of an act of Congress which had listed various actions and had said that the performance of any of these actions could be taken as conclusive, irrebuttable proof of intent to give up U.S. citizenship. However, the Court ruled that a person's intent to give up citizenship could be established through a standard of preponderance of evidence (i.e., more likely than not) — rejecting an argument that intent to relinquish citizenship could only be found on the basis of clear, convincing and unequivocal evidence.

In fact, it was not until Perkins v. Elg, 307 U.S. 325 (1939) in a decision authored by Chief Justice Hughes that a child born in the United States to naturalized parents on U.S. soil [Elg was born after her parents naturalized] is a natural born citizen and that the child's natural born citizenship is not lost if the child is taken to and raised in the country of the parents' origin and cannot be stripped of the same absent an affirmative and voluntary renunciation.

Mistake Six which was the coup de grace and the ultimate Career Ending Decision was the Government’s inability to address sequencing.  Sequencing is basically a short hand way of saying when did certain events happen and in what order. In private practice at the law firm where I got my start my mentor – Les Bell – always said pay attention to details and always focus on the core issue in a case.

Given that it was by design that I went to a Catholic affiliated law school [my father’s firm basically set up the retirement plans for Priests all over the US for which he received a thank you and audience with Pope Paul in Rome in 1971 when Abe and Roz went on a European Tour] which taught thinking on one’s feet, all the professors emphasized that one needed to know procedure and evidence.  You could pick up the substantive law doing research because there were a slew of books and treatises on that. In fact, at that law firm I was assigned to deal with law and motion issues and creditors remedies precisely because it was research oriented.

The reason for the Civil Law and Motion assignments was because it was akin to Moot Court a day though with real world consequences. I spent most of my time on the 8th Floor of the LA Superior Court where Judicial Greats such as John Cole, Bob Weil, Leon Savage, Dickran M. Tevrizian and Irving Schimer put us through our paces. One of the main advantages was that the Judges would post tentative rulings by 4:00 pm the day before the hearing stating what issues they were focused on. I was in the car to get to Hill Street before 5:00 pm to read the Tentative so I knew what the judge was thinking about. It was much more specific than the questions presented in the average cert petition.

Over time, I branched out to creditors’ remedies which involved often priority of lien rights. I will simply say – as Steve Peace can attest to - that our firm was often hired by financial institutions to fix their messes. The reason I became so adept at chaptering in the Legislature was because it is basically sequencing and extinguishment of lien rights albeit in another forum. It is also why in my Fiona Ma Star-Poobah Intern Capacity I deal with reimbursement issues associated with healthcare.

Because the crux in the Citizenship dispute was over children born to non-citizens when the parents were not citizens, one would think people would focus in on what the law was understood to be prior to Dred Scott v. Sanford as to ordinary White Europeans. Dred Scott and Wong Kim Ark were based on the inability of the parents to naturalize in a traditional naturalization proceeding. The better question is the citizenship status of those whose parents were able to naturalize in a naturalization proceeding when the parents were not citizens.

The Government could not answer the main question lurking in the case which is a common scenario today and existed at the time of the adoption of the 14th Amendment. That scenario was and is the child is born on US soil to a non-citizen [most often legally here] and the parents subsequently become citizens, what is the status of that child and is there a procedure to make that child a citizen?

There could be numerous permutations on that issue such as the parent[s] naturalize after the child reaches adulthood [think Kamala Harris] or the parent dies when the child is still a Minor. I know of cases in the last scenario. In fact, you could have a scenario under the Government’s position wherein the parent naturalizes, the child born abroad is derivatively naturalized when the parent naturalizes, and the child born on US soil is in limbo because while legally here he was born on the wrong type of visa.

Being in a temporary status is not permanent. Under the immigration laws persons temporarily admitted into the United States can obtain “adjustment of status” which is statutorily recognized as a process to apply for lawful permanent resident status (also known as applying for a Green Card) when you are present in the United States. This means that you may get a Green Card without having to return to your home country to complete visa processing.

While the Government sought to allay that fear as to children born LPR Holders, there are many-many children born to people legally here who are not citizens and naturalize but the child was born before the parents obtained a Green Card. This is not just Kamala Harris, its likely Usha Vance, and likely several of Donald Trump’s siblings given his grandfather’s “unique” citizenship history.

Given that I defer on these issues to Moms, while as a policy matter Mommy – at least the Mommies I know – believe it is stupid to have a kid before one is a citizen, not everyone thinks like my grandmother or the Mommies I know. Moreover, as Justice Scalia noted the effect of a written Constitution is to take certain policy options off the table. And, this was a personal issue with Chief Justice Roberts, Justice Kagan and Justice Coney-Barrett and the Government did not address it.

Given how central the sequencing issue was, that it got scant attention in the oral arguments [being raised only once by Justice Alito] and almost none of the Briefs is shocking and shows that the Justice’s clerks were not doing their jobs.

I would have – just as with the Tentative Rulings – instructed Counsel to brief the following two issues: (i) prior to Dred Scott was the view on the citizenship status of children born on US soil to non-citizens who were White Europeans; and (ii) what was the effect of the derivative naturalization statute on children born on US Soil to non-citizens who were not in the excluded classes in terms of the historical understanding?

Justice Alito in his dissent argued that sequencing was a non-issue because it rarely arose before the 20th Century because naturalization was quick. However, sequencing was not an issue for Justice Alito because it was done in the right order in his case.

Doing my due diligence, I asked several historians about sequencing who have written on the early practices. Most responded with “good question”. I did get a good response from Professor Carrie Hyde at UCLA who thought based on the 1790 Naturalization Act which was passed by the 1st Congress that if the parents naturalized, then the kids born on US Soil were retroactively naturalized to their date of birth and kids born abroad were naturalized as to the date of naturalization. This would be akin to the 1981 British Citizenship Act which adopted modified Jus Sanguinis.

However, the reason sequencing did not arise during the Founding Era is twofold. First, any change would be purely prospective.  And, two, James Madison foresaw the issue.

The initial Naturalization Act of 1790 had three provisions: (i) making sure that children born abroad to US citizens were citizens at birth; (ii) creating the basic framework for naturalization for those born abroad; and (iii) recognizing derivative citizenship. Derivative citizenship has three forms: (i) when the parent naturalizes, the child ipso facto naturalizes and that is still the case today, (ii) the child of a citizen [if born in the parent’s country] becomes a citizen and that is the case today; and (iii) children born to a non-citizens born within the territory of the new nation who would become citizens once the parents naturalized. This is a form of Jus Sanguinis.

The language of the 1790 act as to derivative citizenship covered not just kids born abroad but was very broad and was clearly intended as a principle to cover kids born here to non-citizen parents before the parents naturalized and could naturalize. In fact, I emailed Professor Carrie Hyde at UCLA who has written on the general citizenship topic about the 1790 Act and my thoughts and she thought I might be right. While the language of the 1790 Act changed over time, the view as to derivative citizenship being the basis for US law on the front end was not challenged as to free white persons born to people who naturalized or could naturalize.

Critical in this regard is that in 1790, because anyone treated as US Citizen by virtue of the operation of law aspects of the 1789 Constitution, by definition it only applied to persons who came here after 1790 because any free person who was within the boundaries of the US was a citizen and any kids they had would be born to citizens – despite the revisionist history in Dred Scott. As such, what Madison was thinking about was what would happen in 20 plus years. In fact, there was very little immigration to the United States prior to the Irish Potato Famine and the failed European Revolutions of 1848. What naturalization that did occur was the United States acquiring territories via treaty or conquest and then on a case-by-case collectively naturalizing based on the circumstance the residents of that territory which the Supreme Court as noted before repeatedly upheld.

However, the Founders were thinking about all these issues because the fight for Independence really started in 1763 with the end of the French and Indian Wars and did not culminate until the adoption of the Constitution in 1789.

When the United States came into being in 1789 as one nation, by definition almost all of the population had been British Subjects. The median age of the population was 16 years and there were approximately 4 million people in the United States per the 1790 census.

Because of the Treaty of 1783, the United States consisted on the 13 Colonies plus all the land East of the Mississippi South of Canada and north of what Spain held as territory – primarily parts of Southern Alabama and Mississippi and Florida. [As an aside, While in theory Britian “lost” the overall War of Independence, in the scheme of things the American Revolution morphed into a World War just as George Washington [Judith and I saw Young Washington which was a great movie] precipitated the French and Indian War which morphed into a world war, both wars worked out just fine for the British Empire.]

Britain gave up all the territory it did for several geo-political reasons. The end result was that the United States was a vastly underpopulated area which in many ways relied on Britain for external security. That being the case, the Founders needed to bulk up the free population. While Americans had high birth rates, it was nowhere sufficient to populate this vast area so it needed immigrants.

The easiest way to get immigrants is to assure them that they and their kids and grandkid would have a better life to assure that they could easily as would their kids become citizens irrespective of place of birth. I therefore believe the 1866 Civil Rights Act recognized or affirmed that the pre-existing view of derivative citizenship applied, to wit that derivative citizenship in at least three forms exists: (i) when the parent naturalizes, the child ipso facto naturalizes and that is still the case today, (ii) the child of a citizen [if born in the parent’s country] becomes a citizen and that is the case today; and (iii) children born to a non-citizens born within the territory of the new nation who would become citizens once the parents naturalized or could be naturalized.

As to persons who could be naturalized in a naturalization proceeding i.e. whites, Dred Scott did not dispute that children born on US soil to non-citizens where the parents could naturalize where citizens at birth by operation of law even if the parents never naturalized for whatever reason. Dred Scott also did not dispute that Congress at least as to non-Blacks could collectively naturalize anyone it wanted. That would include Indians living on or off Reservations. At the same rime prior to Dred Scott and to this day, absent Congressional Approval no one born abroad can ipso facto become a citizen.

As Justice Gray noted in Wong Kim Ark, to hold that the Fourteenth excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would have been to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who had always been considered and treated as citizens of the United States.

And, as the Chief Justice noted in Trump v. Barbara, putting aside the 4 exceptions – one of which was mooted by Congress, a decision was made to put into the Constitution to make citizens kids born on US soil to parents who were or were not citizens without elaborate procedures.

As I said before, the 14th Amendment was collective naturalization which Congress could do assuming the States agreed via ratification. In the case of statutory naturalization, that can be restricted as to persons yet-to-be born by Congress passing a bill. In the case of the Constitution, that can be changed but by a laborious process.