By Michael David Rawlings
The entire legal structure of the Anglo-American tradition of citizenship and nationality rests on the philosophical construct of territorial-hereditary allegiance. In accordance with the common-law rules of jus soli ("the law of the soil"), British citizenship was ultimately premised on the soil of the Realm; however, in 1350, the Crown instituted the Roman principle of jus sanguinis ("the law of the bloodline"). All persons sired by natural-born subjects—regardless of where they were born, on the soil of the Realm or abroad—owed their fealty to the Crown and were entitled to its protection from the moment of birth.
However, the English concept of hereditary allegiance was a modified version of the Roman principle. Under Roman law, all citizen fathers had an inalienable right to pass their citizenship down to their children, but under English law, jus sanguinis imparted natural-born citizenship by extending the Crown's jurisdiction on the basis of the Father's prior claim on the soil of the Realm. In other words, while British citizenship via jus sanguinis bestowed the full rights and privileges of the Crown's jurisdiction, it was strictly a statutory act of benevolence. The Crown and later Parliament could either extend or revoke the privilege, and the power of royal-parliamentary prerogative was absolute: hereditary allegiance was not an inherent right under English Common Law.
While all native-born subjects were inherently natural-born by jus soli, not all natural-born subjects were native-born, and persons without any prior claim on either the soil or the blood of the Realm—that is, born abroad of foreign subjects—could become subjects of the Crown by establishing residency on the soil of the Realm and swearing an oath of fealty. Thereafter, naturalized subjects could pass their nationality down to their children just like any other subject, but unlike their natural-born descendants, they did not enjoy the full measure of fealty's privileges. At the time, this meant they were barred from occupying certain positions of civil authority. Hence, the distinction between a subject born on the soil of the Realm and a subject born solely of the blood of the Realm was academic; the distinction between the natural-born subject and the naturalized subject was definitive.
Except for certain, obvious details owing to the differences between monarchies and republics, the foundation and skeletal framework of citizenship and nationality established in American law by the Framers of the Constitution mostly adhered to the English legal tradition. Under constitutional law, for example, citizenship by statute is not an inherent right either, but subject to congressional prerogative and conditions of retention. However, originally, there were two important differences that are not obvious. The Framers' construct of territorial-hereditary allegiance did not embrace the British common-law rules of birthright citizenship and perpetual allegiance. In Great Britain, all persons born on the soil of the Realm were natural-born subjects of the Crown—including the children of foreigners, unless the alien parents were engaged in some official capacity by a foreign power. Also, the Crown imposed a nonnegotiable, life-long obligation of fealty on all of its subjects.
Originally, under constitutional law, persons born on the soil of the nation were not necessarily natural-born citizens of the United States, and the original rule of exclusion did not just apply to the children of slaves and indentured servants. One had to be born of both the soil and the blood of the nation, with the natural-born citizenship of children born abroad of U.S. citizens predicated on the citizen parents' prior claim on the soil of the nation. In 1898, the Court superimposed the British common-law rule of birthright citizenship on the constitutional rule of jus soli in the landmark case of Wong Kim Ark.
Under natural law and, therefore, constitutional law, all men are ultimately the subjects of God. Hence, American citizens have an inherent right to peacefully expatriate themselves, and, at the same time, the people's legislative body retains the right to expatriate citizens. Though at first blush it might strike some as being counterintuitive, due to the natural-law principle of free association, citizenship retention is not an inherent right under constitutional law, and that remains the case today despite the modifications imposed by the Court on the congressional powers of prerogative and expatriation in Schneider v. Rusk (1964) and Afroyim v. Rusk (1967).
In accordance with the general specifications of the constitutional blueprint, Congress put up the bricks and the mortar comprising the rest of the structure and has periodically modified the preconditions and the requirements of retention for citizenship by statute. The ratification of the Fourteenth Amendment naturalized nearly five million U.S. nationals who had been barred from citizenship on the basis of race or servitude. Also, over the years, the Court, especially since 1898, has added a few touches of its own to the structure with mixed results and equally mixed reviews. But apart from the Court's unwarranted imposition of the British common-law rule of birthright citizenship and despite the structure's seemingly unfathomable maze of regulatory wiring and plumbing—particularly that behind the walls of the extensions built on to house the territorial booty of expansion and conquest—the rest of the original structure of America's system of citizenship and nationality remains essentially unchanged.
The entire structure of American citizenship and nationality rests on the philosophical construct of territorial-hereditary allegiance.There are two distinct legal principles of natural-born citizenship: by right of soil and by right of blood. Citizenship acquired on the basis of the latter is subject to congressional prerogative and conditions of retention.One is either a natural-born citizen or a naturalized citizen; that is, one is either a citizen at birth or becomes a citizen subsequent to birth.There are three distinct conceptual considerations with regards to the determination of nationality and the prerequisites of citizenship: native born, natural born and naturalized. Though significant relative to the conditional nature of jus sanguinis, the distinction between the first two is more academic than definitive. Naturalized citizenship is acquired subsequent to birth and is subject to preconditions.The Republic's territorial boundaries of national allegiance and the government's jurisdiction for constitutional purposes are not synonymous.