INTRODUCTION
This paper investigates the political status of Territorial Filipinos--a select group of Filipinos, WWII veterans included--born in the Philippine Islands during the American Territorial period. The American era lasted nearly forty-eight years from December 10, 1898 (Treaty of Paris exchange of ratifications) to July 04 1946 (Republic of the Philippines inauguration).
Nationalists, of course, are wont to dismiss efforts to link the fate of Filipinos to Americans as "colonial mentality"--the pejorative term David and Okazaki defined as "a form of internalized oppression." Nothing in this paper, assuredly, resurrects "colonial mentality." For it survives only in the mind of the submissive, the unquestioning, where the "mentality" of a "colonial" lurks, thrives.
In terms of status, Territorial Filipinos are woefully misunderstood, mistakenly lumped together with the Chinese, Japanese, Indian, Korean and other "alien immigrants" in the United States. Territorial Filipinos were not "aliens"; Neither could they be classified as "immigrants" at all.
The status of Territorial Filipinos is unique--in a class by itself. For no other group of persons can ever claim to have held the several hybrid identities America designated them with, in lieu of the true status they were entitled to be conferred with under the U.S. Constitution.
This paper will argue that, upon the exchange of ratifications of the 1898 Treaty of Paris, Territorial Filipinos and their children born subsequent thereto during the American territorial period became persons "subject to the jurisdiction" of the United States. Having been rendered subject to U.S. jurisdiction, they acquired citizenship of the United States at birth under the Citizenship Clause of the Fourteenth Amendment, grammatically read as the author intended it to convey.
The arguments to be presented in this Paper are entirely new and may be the first time they have ever been raised. For rather than continue to harp on the tired claim that the Philippine Islands is included in the definition of the phrase "in the United States" (as employed in the citizenship clause), a definition only the U.S. Congress is authorized to determine; this paper will focus instead solely upon that criterion of paramount significance to birthright citizenship--allegiance.
For upon the exchange of ratifications of the Treaty of Paris, Territorial Filipinos and their children were obliged (nay, compelled) to owe allegiance to the United States, reciprocally, in compensation for the sovereign "protection" extended to "all persons subject to the jurisdiction" of the United States, persons the Citizenship Clause recognizes as U.S. citizens "by virtue of natural law" as "natural-born."
The author is confident that the arguments offered here may become the subject of a deeper study by the legal community towards an acceptable revision of the current reading of the Citizenship Clause as mistakenly viewed in U.S. v. Wong Kim Ark, 169 U.S. 469 (1898).
And, perhaps, the main issue to be raised here concerning a basic Right America denied Territorial Filipinos may finally be resolved.
NOTE: Original manuscript prepared 17 Nov 2003 (see http://territorialfilipino.wetpaint.com/)
BACKGROUND
In Fourteen Diamond Rings v. U.S., 183 U.S. 176 (1901), Chief Justice Melville Fuller opined that--
"The Philippines thereby ceased, in the language of the treaty [of Paris] to be foreign country ... They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States ... The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection." (bold added)
Insofar as their status is concerned, this allegiance Territorial Filipinos owed to the United States at birth during the American territorial period is significant; for, as affirmed in U.S. v. Rhodes, 27 F Cas 785 (1866), cited in Wong Kim Ark (1898):
"All persons born in the allegiance of the United States are natural born citizens." (bold added)
Not only that, as regards the United States being "sovereign" at the place of a person's birth, the legal encyclopedia American Jurisprudence (Am Jur 2nd) at Sec. 2218, 3C (Aliens and Citizens), titled the "Doctrine of Jus Soli," states that:
"A person is born subject to the jurisdiction of the United States, for purposes of acquiring citizenship at birth, if his or her birth occurs in territory over which the United States is sovereign, even though another country provides all governmental services within the territory, and the territory is subsequently ceded to the other country." (bold added)
However, although "their allegiance became due to the United States" and their "birth occur[ed] in territory over which the United States [was] sovereign," Filipinos born during this period became "The Exception," inexplicably denied recognition, officially and judicially, as citizens of the United States.
Instead, to account for their allegiance, the U.S. Congress coined a new hybrid "identity" under the Nationality Act of 1940, (retroactively, that is), branding Territorial Filipinos with the oxymoron status of: “Nationals, but not citizens, of the United States at birth.”
"Oxymoron," for as defined under the United States Code: “National” means "a person owing permanent allegiance to a state” while “national of the United States” means either “a citizen of the United States” or “a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” The Act defined “alien” as “any person not a citizen or national of the United States.”
The newly-coined term ‘national’ was a "convenient construct for those who favored territorial expansion but did not wish to make the people of the new territory citizens of the United States or otherwise suggest that they might aspire to equality under the American constitutional system." (José A. Cabranes, Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans, 1978).
Allegiance, in short, ceased to become the determinant to citizenship, although "birth within the allegiance," as reiterated in Wong Kim Ark (1898), is "the fundamental principle in common law."
What is disconcerting, if not comical, to note is that aliens who renounce their allegiance to a foreign power they acquire AT BIRTH and apply for naturalization by pledging allegiance to the United States AFTER BIRTH become Fourteenth-Amendment-naturalized-citizens-of-the-United-States.
In short, it is solely this allegiance aliens pledge to owe to the United States that enable them to become citizens of the United States.
So, why the unfairness, the discrimination against Territorial Filipinos?
For what in heaven's name is the difference between the allegiance an alien pledges AFTER BIRTH and the allegiance a Filipino WWII veteran owed AT BIRTH?
Is the allegiance aliens pledge to the United States subsequent to birth far superior, or of greater value, than the allegiance Territorial Filipinos owed to the United States at the moment of birth? Mind you, this is the very same allegiance Filipino WWII veterans validated and ennobled in blood and tears, defending the Stars and Stripes in gory battlefields of Bata-an and Corregidor?
But can allegiance, like the emotions of love or hate, be measured? If not, why discriminate against the allegiance Territorial Filipinos were subjected to owe at birth--the "Duty of Allegiance" they gladly volunteered to defend and proclaim "in time of war"?
As the Excluded, the Excepted, the "identity" of these unwanted Territorial Filipinos under American law may be likened to the Homo Sacer (Latin for the “sacred man” in the negative sense). This is the term that the Italian philosopher Giorgio Agamben in Homo Sacer: Sovereign Power and Bare Life (1998) defined as an individual submitted to the “sovereign’s state of exception.” To Agamben, rhis person exists as a legal “exile,” which, to him, is a “paradox,” since “the law that mandates the exclusion is also what gives the individual an identity.” (http://en.wikipedia.org/wiki/Homo_sacer):
Judicially, in Barber v. Gonzales, 347 U.S. 637 (1954), at Footnote 1, the U.S. Supreme Court noted:
“From the Spanish cession in 1898 until final independence in 1946, the Philippine Islands were American territory subject to the jurisdiction of the United States. Persons born in the Philippines during this period were American nationals entitled to the protection of the United States and, conversely, owing permanent allegiance to the United States. They could not be excluded from this country under a general statute relating to the exclusion of "aliens." But, until 1946, neither could they become United States citizens.”
The U.S. Court of Appeals, Ninth Circuit, in Rabang v. INS, 35 F.3d 1449 (1994), added that:
"Supreme Court precedent compels a conclusion that persons born in the Philippines during the territorial period were not "born ... in the United States," within the meaning of the Citizenship Clause of the Fourteenth Amendment, and are thus not entitled to citizenship by birth."
And in Valmone v INS (96-4194, 1998), the U.S. Court of Appeals, 2nd Circuit, clarified that:
“The territorial scope of the term "the United States" in the Citizenship Clause of the Fourteenth Amendment did not include the Philippines during its status as a United States territory.”
So, Territorial Filipinos were "American nationals entitled to the protection of the United States and, conversely, owing permanent allegiance to the United States" (Barber).
But they "were not born ... in the United States, within the meaning of the Citizenship Clause of the Fourteenth Amendment, and are thus not entitled to citizenship by birth" (Rabang v. INS), since "the term 'the United States' in the Citizenship Clause of the Fourteenth Amendment did not include the Philippines during its status as a United States territory" (Valmonte).
These opinions relied heavily on the decision handed down in Downes v. Bidwell, 182 U.S. 244 (1901), one of several Insular Cases, which held that territories the Spanish Crown ceded to the United States under the Treaty of Paris were "unincorporated," defined as--
"appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution.
But take note that Downes was a case concerning the "revenue clauses," not the Citizenship Clause, decided on a split 5-4 vote, and the opinion even added that:
"The power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be."
Prof. Bartholomew H. Sparrow in his book, "The Insular Cases and the Emergence of American Empire" (2006), "reveals that the Court treated the constitutional status of territorial inhabitants with great variability and decided that the persons of some territories were less equal than those of others."
And the reason behind why they "were less equal"? To Sparrow:"When the United States took control of Cuba, Puerto Rico, the Philippines and Guam following the Spanish-American War, it was unclear to what degree these islands were actually part of the United States and whether the Constitution applied fully, or even in part, to their citizens."
In fact, the Philippine Independence Act or the Tydings-McDuffie Act (1934) stipulates that:
"Upon the final and complete withdrawal of American sovereignty in the Philippine Islands the immigration laws of the United States (including all the provisions thereof relating to persons ineligible to citizenship) shall apply to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries." (bold added)
What can be gleaned from this provision is that, upon the withdrawal of American sovereignty, U.S. immigration laws would be be made to "apply to persons who were born in the Philippine Islands"--or retrospectively at birth ("were born") with the "Philippine Islands," their place of birth," now also to be regarded under the Act as a "foreign" country at the time they "were born," Rabang v. Boyd, 353 U.S. 427 (1957), naturally held that:
"persons born in the [Philippine] Islands, and who thereby were nationals of the United States, became aliens on July 4, 1946." (bold added)
Note it well that this cited provision in Tydings-McDuffie is retroactive to the time Territorial Filipinos "were born."
What this means, of course, is that Filipinos who "were born" during the American territorial period became ALIENS AT BIRTH--and not upon the withdrawal of American sovereignty. And the reason for this is that their place of birth, the Philippine Islands, was now to be regarded under the Act as a "foreign" country, likewise retroactive to the time of their birth. This provision is evidently a "supposition, contrary to fact," since the Philippine Islands was undeniably still a U.S. territory at the time they "were born" there, becoming "foreign" only upon the withdrawal of American sovereignty.
In any case, if these cited suppositions under the Act were to be regarded as true; then, Territorial Filipinos "were born" STATELESS, without any country to call their own at the moment of birth!
Consequently, having been disowned at birth by the very sovereign at their place of nativity, Territorial Filipinos are now compelled under the Tydings-McDuffie Act to falsify information, even to lie under oath, each time they fill out data commonly required in certain legal documents concerning where they "were born"--their "Country of Birth."
Even now, they are left with no recourse but to openly commit perjury by declaring the falsehood that their "Country of Birth" is the "Philippines" or the "Philippine Islands." But the Philippine Islands was then merely a territory or "outlying possession" of the mother "country," the United States, at the time they "were born," since the independent "country" of the "Republic of the Philippines" came into existence only on July 04, 1946, long after these unwanted and rejected Territorial Filipino outcasts "were born."
Thus, even in the face of the obvious fact that the circumstances of birth--date, place and parentage--are indelible, a "Gift of the Creator," the Tydings-McDuffie Act mandates these Filipinos to be "born again" in a new "Country of Birth."
But was the denial of citizenship to Territorial Filipinos (WWII veterans, in particular) constitutional?
PART ONE
A MONUMENTAL READING ERROR
The Citizenship Clause in Sec. 1 of the Fourteenth Amendment to the U.S. Constitution ratified in 1868 reads:
"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."
Justice Gray in Wong Kim Ark (1898) read the phrase "and subject to the jurisdiction thereof," enclosed within a pair of commas (the first comma before the conjunction "and," the second before the linking verb "are"), as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States":
“The real object in qualifying the words ‘All persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof’ would appear to have been to exclude … [the] recognized exceptions to the fundamental rule of citizenship by birth within the country.” (bold added)
Without intending disrespect, it is this MONUMENTAL READING ERROR in Wong Kim Ark of the phrase "and subject to the jurisdiction thereof" that justified the DENIAL of U.S. citizenship to Filipinos
This paper will argue that the Wong Kim Ark reading of the phrase, "and subject to the jurisdiction thereof," in the Citizenship Clause is grammatically incorrect. And it will argue further tthat--owing to the PAIR OF COMMAS the author deliberately enclosed it with--the phrase should be viewed instead as the SECOND of the COMPOUND subject of the clause. Furthermore, this paper will argue that this Second subject enclosed between commas is phrased as an ELLIPTICAL, joined to the First subject by the conjunction "and," with the repeated main noun phrase "all persons" in the Second subject OMITTED.
This Second subject laudably provides a generic all-embracing definition of what constitutes citizenship of the United States--"all persons subject to the jurisdiction of the United States," at birth or subsequent to birth. This is the complete construction for the elliptical "and subject to the jurisdiction thereof" appearing in the clause, with the repeated noun phrase "all persons" omitted for brevity or style.
In fact, during the Citizenship Clause debate, Senator James Doolittle quoted the complete construction of how the elliptical phrase was meant to be read--"all persons subject to the jurisdiction of the United States."
Grammatically reading the clause as the author intended it to convey may well be the first step towards vindicating a Fundamental Right to U.S. citizenship America denied Filipinos born during the American territorial period, WWII veterans included.
Although the vindication of this denial of a Right may just be too late particularly for Filipino WWII veterans; it must be emphasized, however, that this other category applies to ALL Filipinos born before the withdrawal of American sovereignty from the Philippine Islands on July 04, 1946.
Similarly, being also “persons subject to the jurisdiction of the United States” at birth--this category constitutionalizes (from the current statutory) the status of children of U.S. citizens born abroad as Fourteenth-Amendment-natural-born-citizens-of-the-United-States--making them likewise eligible to run for President.
In fact, Senator John McCain, born in the Panama Canal Zone to American parents, falls under this category and can claim to be "natural-born."
The recognition of this now-forgotten category is in line with the author’s declared intent in his sponsorship speech to “include every other class of persons” (meaning "all," aside from the class of "persons born in the United States"), boldly asserting that the clause he crafted finally “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”
PART TWO
SUBJECT TO THE JURISDICTION OF THE UNITED STATES
In his sponsorship speech, Senator Jacob Merritt Howard, the author of the Citizenship Clause in Sec. 1 of what is now the Fourteenth Amendment, clarified that:
“The first amendment is to section one, declaring that "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 ... 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. This has long been a desideratum in the jurisprudence and legislation of this country.” (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
Take note that the words "or naturalized" do not appear in the clause Senator Howard, the author, proposed that was debated and "agreed to" on the same day he submitted it on May 30, 1866; rather, the words were inserted a full week later on June 8th, upon motion of Senator William Pitt Fessenden.(see http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=161 3940)
Hence, sans the words “or naturalized,” Senator Howard's clause read:
"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.”
So, to Senator Howard, the clause he authored--
--“is simply declaratory of what I regard as the law of the land already … by virtue of natural law and national law”
--“will include every other class of persons”
--“settles the great question of citizenship”
--“removes all doubt as to what persons are or are not citizens of the United States”
Viewing his speech as words that amplify the author’s intent, it is reasonable to presume that the clause Senator Howard proposed would recognize, not only “All persons born in the United States,” but likewise "will include" a comprehensive definition of what he refers to in his speech as “every other class of persons” already declared “by virtue of natural law and national law a citizen of the United States” at that time in 1866
And so, if the clause Senator Howard proposed “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States,” why did he not include the words “or naturalized”?
Under the Naturalization Acts since 1790 (all of them “national” laws), persons “naturalized” are recognized as citizens of the United States, not to mention the children of U.S. citizens born abroad.
So, what is in the phraseology of the clause Senator Howard crafted that prompted him during the debate to proclaim with certainty and confidence that:
“We desired to put this question of citizenship and the rights of citizenship and freedmen beyond the legislative power.” (bold added)
Parsing the clause Senator Howard proposed, the grammatical subject is “All persons born in the United States, and subject to the jurisdiction thereof.”
As earlier quoted here, Justice Gray in Wong Kim Ark read the words enclosed between the pair of commas, “and subject to the jurisdiction thereof,” as a “qualifying” phrase of the element preceding it, “All persons born in the United States” in order "to exclude … [the] recognized exceptions."
But Senator Howard already underlined in his speech that the clause he proposed “will not, of course, include” the “recognized exceptions” Justice Gray speaks of.
“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."
Having said that, 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”?
In this regard, Chief Justice Fuller with Justice Harlan, dissenting in Wong Kim Ark, 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 …
"They do not owe allegiance otherwise than to their own governments, and their children cannot be regarded as born within any other …
"There was no necessity as to them for the insertion of the words, although they were embraced by them."
Chief Justice Fuller’s remarks questioning “the necessity of excepting” the “recognized exceptions” is precisely the gist of what Senator Wade said a week before the citizenship clause was debated while the Senate was discussing his own proposal of a similar clause he submitted on May 23, 1866:
“Mr. WADE … 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.” (bold added)
The Latin maxim “de minimis lex non curat” means: “The law does not concern itself with trifles.”
Indeed, 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 in his Wong Kim Ark dissent (cited above): “There was no necessity as to them for the insertion of the words, although they were embraced by them."
In view of all these, it is evident that the Wong Kim Ark reading of the clause which views, in particular, the words enclosed between a pair of commas, "and subject to the jurisdiction thereof," as a mere "qualifying" phrase of the element preceding, "All persons born in the United States," fails utterly to satisfy Senator Howard’s declared intent, specifically in this regard--
Does the Wong Kim Ark view include "every other class of persons"? Does it settle "the great question of citizenship"? Does it remove "all doubt as to what persons are or are not citizens of the United States”?
The Wong Kim Ark reading which recognizes only the class of "all persons born in the United States, and subject to the jurisdiction thereof" certainly does not.
In fact, Chief Justice Fuller in his Wong Kim Ark dissent warned:
“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. (bold added)
“In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this government. If not, and if the correct view is that they were aliens, but collectively naturalized under the acts of congress which recognized them as natural born, then those born since the fourteenth amendment are not citizens at all unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized 'in the United States.'” (bold added)
Thus, to Chief Justice Fuller, dissenting, the children of U.S. citizens born abroad since 1868 “were and are aliens”; sadly, he adds, these foreign-born could only be “naturalized in the United States”—and not anywhere else.
What Chief Justice Fuller is conveying in his dissent is that, how could these children claim to having been “naturalized in the United States” at birth if they were born “abroad” NOT “in the United States” at the time they were naturalized?
The particular phrase in the Citizenship Clause reads: "born or naturalized in the United States." So, if a person is deemed not to qualify as a “citizen of the United States” for having been “born” in a place designated as not “in the United States”; that same person who remains in that same place so designated as not "in the United States," obviously does not also qualify to be “naturalized in the United States,” since to be “naturalized” is the “second of two alternatives” of the same determinant--“in the United States”--joined by the conjunction “or” to the first alternative “born” which that same person is already deemed ineligible to be conferred with under.
Besides, the U.S. Code defines the term “naturalization” to mean “the conferring of nationality of a state upon a person after birth, by any means whatsoever.”
Noteworthy during the debate is the remark of Senator James Doolittle, directly quoting (printed in quotation marks) how “the language” of the phrase "subject to the jurisdiction thereof" was intended to convey:
"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 ..." (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=18 2897)
To repeat “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 language which he [Senator Howard, the author] uses?
Is it because of the PAIR OF COMMAS Senator Howard enclosed these words with?
The relevant punctuation rule in elementary English grammar says: “if it can be omitted,” which means that the element is “non-restrictive, it can be set off by commas”; if not, which means that the element is “restrictive, it should not be set off by the comma.”
In placing the first comma before the coordinator “and,” the rule laid down in The Elements of Style by Strunk (1918) applies: “If a parenthetic [or non-restrictive] expression is preceded by a conjunction,” the rule is “place the first comma before the conjunction, not after it.”
In fact, if the phrase, “subject to the jurisdiction thereof,” was indeed inserted to qualify “All persons born in the United States,” as claimed in Wong Kim Ark, there would not have been any need, grammatically, for Senator Howard to insert the commas at all.
But the pair of commas are there now, and having enclosed the phrase “and subject to the jurisdiction thereof” between these commas--grammatically into a “non-restrictive phrase”--Senator Howard is clearly conveying the intention that the phrase acts, not as a qualifier of the element preceding it, as claimed in Wong Kim Ark, but as the SECOND of the COMPOUND subject of the clause, joined to the FIRST, “All persons born in the United States,” by the coordinator “and.”
In a word, since the main noun phrase “all persons” is repeated in both subjects of the compound, Senator Howard was understandably constrained, for brevity or style, to rely on the grammatical device of an ELLIPTICAL to avoid the awkward syntax of a repeated subject in a coordinate configuration, by inserting the first of the pair of commas before the conjunction “and,” the second before the linking verb "are."
An "elliptical construction" is described in Wikipedia, Ellipsis (Linguistics) http://en.wikipedia.org/wiki/Ellipsis_(linguistics) in this manner:
“In the grammar of a sentence, an ellipsis or elliptical construction is a construction that lacks an element that is, nevertheless, recoverable or inferable from the context. The elliptical construction is a sequence of words in which some words have been omitted. Because of the logic or pattern of the entire sentence, it is easy to infer what the missing words are.” (bold added)
Employing an elliptical grammatically allowed Senator Howard to OMIT the repeated main noun phrase “all persons” in the second subject, to be understood or implied from the same phraseology of the precedent first, rather than to be expressed or repeated in the second subject of the compound it is coordinate with.
As if to emphasize the author’s reliance on the grammatical device of an elliptical to structure a compound with a repeated subject in coordinate configuration, there is this other elliptical in the clause Senator Howard used--the compound object, “citizens,” of the linking verb “are”--"citizens of the United States and [citizens] of the State wherein they reside," with the repeated second object “citizens” Senator Howard omitted, to be understood rather than stated, again, for brevity or style
Add to that is the elliptical employed in the penultimate line in Sec. 1 of the Fourteenth (the same section as the clause), appearing in the Second negative with the omission of the phrase "shall any State" inferable from that in the First negative: "nor shall any state deprive ... “nor [shall any State] deny …”
Assuredly, this trifle concern for a pair of commas enclosing the phrase “and subject to the jurisdiction thereof” is not just nit-picking.
A similar clause in the 1866 Civil Rights Act (enacted only two months earlier by the same 39th Congress) omits the pair of commas, particularly the comma placed before the coordinator “and”--
"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."
NOTE: Text quoted above is taken from the scanned printed original copy of S. 61, Civil Rights Act, Bills and Resolutions, Senate, 39th Congress, 1st Session, March 13, 1866, now 14 Stat. 27-30, April 9, 1866.
By omitting the comma before the coordinator “and,” the author of the Civil Rights Act (Senator Lyman Trumbull) is conveying the intention that the phrase "not subject to any foreign power" is "restrictive," which means that, grammatically understood, it is intended to modify, qualify or restrict the phrase preceding it, "All persons born in the United States."
This matter, of course, should be left to grammarians or linguists to definitively resolve. However, since it was the same 39th Congress and its Committee on Style that edited these similarly-phrased provisions written barely two months apart, would they have applied the same elementary English grammar rule selectively, arbitrarily?
Hence, the phrase Senator Doolittle quoted during the debate--“all persons subject to the jurisdiction of the United States”--is actually the complete construction for the SECOND subject of the compound, defining a still-unrecognized, call it a "SECOND," category of citizens of the United States.
Take note that there is no territorial limitation prescribed, since the second category does not refer to a named place where persons “subject to the jurisdiction of the United States” are required either to be born or to reside in.
Note, too, that the second category confers citizenship, not only upon persons born “subject to the jurisdiction of the United States,” or at birth, but also from and after the moment persons become “subject to the jurisdiction of the United States” subsequent to birth or become naturalized.
Thus, Senator Howard actually intended the second subject to be read as--
“All persons subject to the jurisdiction of the United States”--at birth (natural-born) or subsequent to birth (naturalized).
Justice Harlan argued a similar view, dissenting in Elk v. Wilkins, 112 U.S. 94 (1884):
“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, the clause is not only about jus soli, after all. For persons acquire “the rights of national citizenship” under the 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 subsequent to birth, “in respect of persons born in this country,” including, of course, persons similarly situated NOT "born in this country."
To buttress his dissent, Justice Harlan cited the remarks of Judiciary Committee Chair Senator Lyman Trumbull during the Citizenship Clause debate (alluding to aboriginal Indians):
“Mr. TRUMBULL … It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens ... We propose to make citizens of those brought under our jurisdiction in that way."
The phrases cited, “persons who come completely within our jurisdiction” and “those brought under our jurisdiction,” obviously do not refer to persons at the time of birth; rather, Senator Trumbull’s remarks no doubt point to persons already born, “who come completely within,” or are “brought under,” the jurisdiction of the United States after birth" (in the case of Elk).
The inclusion of an all-embracing, generic definition of citizenship 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 subsequent to 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 (on June 8th) the Senate debated and “agreed to” his proposal on May 30, 1866.
But the most telling argument during the debate for the recognition of a second category comes from the remarks of the author, Senator Howard, no less, citing the term "naturalization" several times over in objecting to the proposal of Senator Doolittle to insert the words "excluding Indians not taxed" in the clause he proposed:
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-citizen.”
In a word, 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” subsequent to birth and, accordingly, qualify to acquire citizenship of the United States after birth by “naturalization” as provided under the generic definition in the second subject of the clause he proposed.
And so, if as claimed under Wong Kim Ark, the clause that Senator Howard proposed was intended to recognize only “persons born in the United States” or the acquisition of citizenship at birth, why would he refer to the “direct effect” of Senator Doolittle’s proposed amendment to the clause he authored as a “naturalization”--the acquisition of citizenship subsequent to birth?
And the reason, of course, lies in Senator Howard’s inclusion of an all-embracing SECOND category, recognizing as citizens of the United States persons who become “subject to the jurisdiction of the United States” at birth or subsequent to birth.
With the Citizenship Clause grammatically read as intended, the two post-Civil War Amendments, 13th (1865) and 14th (1868), can now be viewed to convey consistency, oneness of intent in affording protection to persons: (1) “in the United States”; and (2) “subject to the jurisdiction of the United States”:
THIRTEENTH: The abolition of Slavery or involuntary servitude inflicted upon persons:
(1) "within the United States"; or
(2) “[within] any place subject to their jurisdiction."
FOURTEENTH: The privileges and immunities U.S. Citizenship confers upon persons:
(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof"
Sadly, this second subject of the clause that Senator Howard enclosed between a pair of commas to define a generic Second category of citizens of the United States, has never been subjected to the scrutiny it rightly deserves.
Historically, it is noteworthy that at the time Congress passed the Citizenship Clause, there were still twelve organized territories awaiting statehood.
Aside from the District of Columbia (not a State but carved from, and ceded by, the States of Virginia and Maryland), enumerated below are the respective dates of admission (chronologically) of the territories as a state and their respective dates of creation into an Organized Territory earlier:
01. 37th. Nebraska State 01 Mar 1867 Territory 30 May 1834
02. 38th. Colorado State 01 Aug 1876 Territory 28 Feb 1861
03. 39th. North Dakota State 02 Nov 1889 Territory 02 Mar 1861
04. 40th. South Dakota State 02 Nov 1889 Territory 02 Mar 1861
05. 41st. Montana State 08 Nov 1889 Territory 26 May 1864
06. 42nd. Washington State 11 Nov 1889 Territory 02 Mar 1853
07. 43rd, Idaho State 03 July 1890 Territory 03 Mar 1863
08. 44th. Wyoming State 10 July 1890 Territory 25 Jul 1868 (part of Dakota Territory)
09. 45th. Utah State 04 Jan 1896 Territory 09 Sep 1850
10. 46th. Oklahoma State 16 Nov 1907 Territory 02 May 1890 (part of Indian Territory)
11. 47th. New Mexico State 06 Jan 1912 Territory 09 Sep 1850
12. 48th. Arizona State 14 Feb 1912 Territory 24 Feb 1863
Take note that Alaska, the 49th State was annexed 30 Mar 1867 before the Fourteenth was ratified, but was organized into a Territory only on 24 Aug 1912 and admitted as a state 03 Jan 1959; while Nebraska was admitted as the 37th State before the ratification of the Fourteenth.
Persons born or residing in these 12 territories were no doubt "persons subject to the jurisdiction of the United States" at birth or subsequent to birth. Thus, the U.S. citizenship they were qualified to be conferred with under the Second category together with the benefits, privileges and protection its acquisition guarantees was obviously what was utmost in the minds of Senator Howard and the 39th Congress for that matter in 1866 in their efforts to enact the clause.
What must be emphasized at this point is that the recognition of a Second category does not suggest a “hierarchy of citizenship,” for as underscored in Schneider v. Rusk, 377 U.S. 163 (1964):
"We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive."
In light of all these considerations, it is evident that the clause Senator Howard proposed that the Senate “agreed to” on May 30, 1866 was intended to be read as recognizing two categories of citizens of the United States:
“All persons born in the United States, and [all persons] subject to the jurisdiction thereof, are citizens of the United States and [citizens] of the State wherein they reside.”
First category – All persons born in the United States
Second category – All persons subject to the jurisdiction of the United States at birth or subsequent to birth
And upon its amendment on June 8th to include the words “or naturalized” after the word “born,” a third category is inserted:
Third category – All persons naturalized in the United States
Evidently, the Second category is simply a general comprehensive definition of who a citizen of the United States is--a definition that “removes all doubt as to what persons are or are not citizens of the United States”--consistent with what Senator Howard asserted the clause he proposed was intended to achieve.
As can be readily gleaned from the declarations quoted below, Territorial Filipinos were doubtless "persons subject to the jurisdiction of the United States”:
Justice John Marshall Harlan in Grafton v. U.S., 206 U.S. 333 (1907):
"... the government of the Philippines owes its existence wholly to the United States, and its judicial tribunals exert all their powers by authority of the United States. The jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount."
U.S. President Harry S. Truman, Proclamation 2695 (1946), Independence of the Philippines:
“NOW, THEREFORE, I, HARRY S. TRUMAN, President of the United States of America … do proclaim that … The United States of America hereby withdraws and surrenders all rights of possession, supervision, jurisdiction, control, or sovereignty now existing and exercised by the United States of America in and over the territory and people of the Philippines.”
So, does this now-forgotten Second category of citizens of the United States the Citizenship Clause confers--"All persons subject to the jurisdiction of the United States"--apply to the "native inhabitants" residing in the Philippine Islands upon the exchange of ratifications of the Treaty of Paris and to their children as well born subsequent thereto throughout the entire American territorial period?
Evidently, it does; for it was during this 48-year period from 1898 to 1946 that "the jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government [was] paramount" (Grafton), having exercised during that period "all rights of possession, supervision, jurisdiction, control, or sovereignty ... in and over the territory and people of the Philippines" (President Truman, Independence of the Philippines Proclamation).
PART THREE
OWING ALLEGIANCE TO THE UNITED STATES
During the Citizenship Clause debate, Senator Lyman Trumbull, Judiciary Committee Chair and author of the 1866 Civil Rights Act, defined how the phrase “subject to the jurisdiction thereof” as employed in the clause is to be understood to convey:
"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."
But to whom did Filipino WWII veterans owe their "allegiance" to?
At the time Filipino WWII veterans were born, the Philippines was not yet independent, for it was then known merely as the U.S. territory of the Philippine Islands, a territory the United States purchased for $20 million from the Spanish Crown under the 1898 Treaty of Paris. It was only in 1946 that the territory came to be known, officially, as the Republic of the Philippines.
What this means, of course, is that, since the Philippines did not as yet exist as an independent nation at the time Filipino WWII veterans were born, their country and sovereign at birth was no other than the possessor, the United States.
In Fourteen Diamond Rings (1901), Chief Justice Fuller refers to this “allegiance” Filipinos owed to the United States:
“The result was the same although there was no stipulation [in the 1898 Treaty of Paris] that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection."
In Toyota v. U.S., 268 U.S. 402 (1925), Justice Butler, citing Gonzales v. Williams, 192 U.S. 1 (1904), said:
"The citizens of the Philippine Islands are not aliens. They owe no allegiance to any foreign government.”
Chief Justice Earl Warren in Barber v. Gonzalez, 347 U.S. 637 (1954), offered a similar view:
"[P]ersons born in the Philippines during [the American territorial] period were American nationals entitled to the protection ... and conversely owing permanent allegiance to the United States."
The “allegiance” that both Justice Butler (Toyota) and Justice Warren (Gonzalez) speak of and Chief Justice Fuller said “became due to the United States” (Fourteen Diamond Rings) is significant, for as proclaimed in U.S. v. Rhodes, 27 F Cas 785 (1866), cited in Wong Kim Ark:
“All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together.”
Applying this principle: Even though these veterans under Downes were regarded as NOT born “in the United States”--but in the “unincorporated territory” of the Philippine Islands--nationality, in the words of Dicey in Conflict of Laws (1896)--
“… in theory at least depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance.”
But “the test of loyalty is conduct rather than intensity of feeling.”
Thus, owing allegiance is inseparable with owing "obedience," which is precisely what Calvin’s Case or the Case of the Postnati, 7 Coke Report 1a, 77 ER 3777 (1608), proclaimed, as cited in Wong Kim Ark:
“It is neither the climate nor the soil but allegiance and obedience that make the subject born.”
In other words, in theory, the "fundamental principle" to citizenship acquisition at the moment of birth, as reiterated in Wong Kim Ark, is “birth within the allegiance.”
Chief Justice Morrison R. Waite in Minor v. Happersett, 88 U.S. 162 (1874), elucidated the relationship:
“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."
Justice Samuel Sewall (Massachusetts) in Gardner v. Ward, 2 Mass. 244n (1805), cited in Wong Kim Ark, clarifies the reciprocity of the relationship:
“By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term 'citizenship."
Hence, in line with U.S. v. Rhodes cited, having been born in territory over which the United States was sovereign, Filipinos born owing allegiance to the United States during the American territorial period--Filipino WWII veterans included--are doubtless “natural-born citizens of the United States."
So why were Territorial Filipinos who similarly owed "allegiance" to the United States--allegiance owed AT BIRTH, that is, not AFTER--denied recognition as citizens of the United States?
On the other hand, inhabitants of Puerto Rico (one of the islands ceded from Spain under the Treaty of Paris), were declared by law as U.S. citizens in 1917 and those in Guam (the third island similarly ceded under the treaty) in 1950.
Obviously, the teeming inhabitants in the Philippine Islands may have been the reason behind the exclusion. For, unlike Puerto Rico and Guam, there were several million "half-civilized, piratical, muck-running" Indios inhabiting Las Islas Filipinas (1903 Census, 7,635,426; 1939, 16,000,303), not to mention their equally "savage" children to be born later, who would be qualified to claim the Right to U.S. Citizenship.
But the enjoyment of a Right constitutionally guaranteed, or of any Right for that matter, such for instance as the "Right to Citizenship," is, of course, open to ALL who qualify and may not be denied nor refused simply because there is a huge number of persons eligible to enjoy and take advantage of that Right.
Thus, what transpired is that, while Blacks were declared “separate but equal” under Plessy v. Ferguson (1896), Filipinos under the Insular Cases decided incidentally during the same period as Plessy were “SEPARATE AND UNEQUAL.”
Legally, America argued that Filipinos were NOT “born in the United States” as provided in the Citizenship Clause of the Fourteenth Amendment but in an “unincorporated territory,” defined by the U.S. Supreme Court in the Insular Cases, particularly Downes v. Bidwell (1901), as "a territory appurtenant and belonging to the United States, but not a part of the United States.”
This justification prompted Justice Harlan, dissenting in Downes--and the lone dissenter in the "Separate but Equal" doctrine enunciated earlier in Plessy v. Ferguson (1896)--to remark:
"This idea of 'incorporation' has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel."
Chief Justice Fuller, likewise dissenting, did not mince words in referring to the "occult" word too:
"Great stress is thrown upon the word 'incorporation,' as if possessed of some occult meaning."
It was only in 1940--long after these veterans had already been born--that the U.S. Congress minted a new status of “Non-citizen National of the United States” under the provisions of the Nationality Act (8 USC 1408), to designate, retroactively, among others, Filipinos (including these veterans) born during the American territorial period.
But having been openly rejected and abandoned, questions persist-
What was the “COUNTRY OF BIRTH” of these Filipino WWII veterans? Were they BORN STATELESS, without any country to call their own at birth?
NOTE: The term "Country of Birth" is defined as "the country in which the person was physically born," also known as "country of origin" or "birthplace," based upon the recognized boundaries of the place of nativity in existence at the time the birth of the person occurs, which, in jus soli, is the determinant to status at birth.
In fact, Section 2 (1) of the Tydings-McDuffie Act (1934) reiterated the command Filipinos were born to obey:
"All citizens of the Philippine Islands shall owe allegiance to the United States."
This duty of allegiance Filipinos were obligated to owe at birth was invoked barely two weeks following the Japanese sneak attack on the U.S. territories of Hawaii and the Philippine Islands, by no less than U.S. President Franklin Delano Roosevelt on December 28, 1941, in a "Message to the Filipino People"--now surprisingly named “the loyal Americans of the Philippine Islands”--“to do their duty” of defending American territory against the onslaught of an invading army: (http://www.presidency.ucsb.edu/ws/?pid=16076)
“News of your gallant struggle against the Japanese aggressor has elicited the profound admiration of every American … In this great struggle of the Pacific, the loyal Americans of the Philippine Islands are called upon to play a crucial role. They have played, and they are playing tonight, their part with the greatest gallantry. As President I wish to express to them my feeling of sincere admiration for the fight they are now making … It is not for me or for the people of this country to tell you where your duty lies. We are engaged in a great and common cause. I count on every Philippine man, woman, and child to do their duty. We will do ours.”(bold added)
Thus, in light of the "allegiance" Filipino WWII veterans, or Filipinos born during the American territorial period for that matter, owed to the United States at the moment of birth, they are thus more entitled than "aliens" who owed allegiance to a "foreign" power at birth to be recognized as Fourteenth-Amendment-Citizens-of-the-United States.
PART FOUR
CONCLUSION
To conclude: Filipino WWII veterans were persons "subject to the jurisdiction of the United States" at birth, having been born in territory over which the United States was sovereign. And in return for the protection the United States extends to such persons, these veterans were subjected to the reciprocal duty of "allegiance" to the United States at birth.
What this means, of course, is that, under the still-unrecognized Second category of "persons subject to the jurisdiction of the United States" at birth or after birth as provided in the Citizenship Clause of the Fourteenth Amendment--correctly read as the author, Senator Howard, intended it to convey--Filipino WWII veterans were born citizens of the United States.
And to repeat what Senator Trumbull said is the meaning of the phrase "subject to the jurisdiction of the United States": "Not owing allegiance to anybody else. That is what it means."
Filipino WWII veterans were, therefore, "natural-born," for, as proclaimed in U.S. v. Rhodes, cited earlier here, they were "persons born in the allegiance of the United States."
To summarize: Those who qualify to be conferred citizenship of the United States under Senator Howard's Second category--"persons subject to the jurisdiction of the United States" at birth or subsequent to birth--include, among others, the following:
01. Children of U.S. citizens born abroad (already recognized under the Naturalization Acts since 1790)
02. Inhabitants or persons born in ceded territory
03. Aliens naturalized (already recognized under the Naturalization Acts since 1790)
(Note that Senator Howard's original draft did not include the words "or naturalized.")
Thus, unlike the Wong Kim Ark reading which fails to take into account the significance of the pair of commas (with the first comma inserted before the conjunction "and") that transforms the phrase enclosed--"and subject to the jurisdiction thereof"--into an elliptical, recognition of this all-embracing, comprehensive Second category satisfies fully Senator Howard's declared intent in his sponsorship speech, which is that the Citizenship Clause he proposed--
--“will include every other class of persons”
--“settles the great question of citizenship”
--“removes all doubt as to what persons are or are not citizens of the United States”
The Wong King Ark reading, on the other hand, certainly fails utterly to satisfy Senator Howard's avowed intent; instead, it magnifies "all doubt," by excluding, in particular, children of U.S. citizens born abroad already recognized at the time Senator Howard proposed the Clause in 1866 to be citizens of the United States at birth "by virtue of natural law and national law" as early as 1790 yet.
Under the First category, "persons born in the United States" (other than the "recognized" exceptions) are, of course, automatically "persons subject to the jurisdiction of the United States." Hence, reciprocally, they are subjected to the duty of owing "allegiance" to the United States at the moment of birth.
Similarly, with the addition of the words "or naturalized" in Senator Howard's clause, "persons ... naturalized in the United States" are "aliens" who renounce the "allegiance" they owed at birth to a foreign power and subsequently swear under oath to owe "allegiance" to the United States; in return, they become "subject to the jurisdiction of the United States" after birth.
Finally, having been acquired initially at birth, Filipinos born in the Philippine Islands during the American territorial period continue to hold on to their true status that no doubt remains to this day intact and preserved, unless voluntarily renounced individually.
Justice Black in Afroyim v. Rusk, 387 U.S. 253 (1967), confirms:
"We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.” (bold added)
In May of 1942, Supreme Court Chief Justice Jose Abad Santos--before being executed by the Japanese for refusing to head the “puppet” republic his captors would soon be establishing in the Philippines--calmly replied, as he stood beside his son, now unabashedly weeping:
“I cannot possibly do that, because if I do so, I will be violating my oath of allegiance to the United States.”
NOTE A:
Following below is the shrewdly-phrased "Mass Divestment" provision in the Tydings-McDuffie Act (1934), dispossessing Filipinos born during the American territorial period by subtly undoing what is already an authenticated historical fact--the circumstances of a person's birth:
"Section 14. Upon the final and complete withdrawal of American sovereignty over the Philippine Islands the immigration laws of the United States (including all the provisions thereof relating to persons ineligible to citizenship) shall apply to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries."
Take careful note of the use of the retroactive past tense "were born in the Philippine Islands," although the provision speaks of a future event: “Upon the final and complete withdrawal of American sovereignty over the Philippine Islands.”
Actually, what Sec. 14 above conveys is that, upon the "withdrawal of American sovereignty," Filipinos "who were born in the Philippine Islands" during the American territorial period are now to be placed subject to the “immigration laws of the United States.”
What this means, of course, is that the provision was intended to divest the U.S. citizenship Filipinos born during the American territorial period were conferred with AT BIRTH under the Citizenship Clause (as discussed above) so that they could then be treated as “ALIENS” under U.S. immigrations laws.
And this is precisely what Sec. 8 (a)(1) of the Act declared:
"Citizens of the Philippine Islands ... shall be considered as if they were aliens."
But this provision, strangely enough, is worded in the subjunctive mood ("as if ... were"), or a "supposition contrary to fact," which, nonetheless, is a tacit admission under the Act of the reality that Filipinos during that period were definitely NOT "aliens" at all.
In short, this provision is actually a unilateral "mass divestment" of the U.S. citizenship these Filipinos acquired as “persons subject to the jurisdiction of the United States” at the moment of birth under the Second category of the Citizenship Clause.
As such, this provision is obviously a blatant attempt to falsify the factual, historical circumstances of a person’s birth, since the Philippine Islands, insofar as the United States as the sovereign is concerned, would become "foreign" only after the "withdrawal of American sovereignty" and certainly not earlier than the time these Filipinos “were born” there.
Sec. 14, therefore, flagrantly revised the "COUNTRY OF BIRTH" of Filipinos born during the American territorial period from the U.S. territory of the Philippines (or, by 1934, the Commonwealth of the Philippines) to an imaginary "country" that was still non-existent at the time of their nativity--the Republic of the Philippines.
In fact, in Fourteen Diamond Rings, cited earlier, Chief Justice Fuller as early as 1901 already conceded that the Philippines was NOT anymore a "foreign country"--
"The Philippines thereby ceased, in the language of the treaty ... to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States."
In any case, if the territory of the Philippine Islands is, indeed, to be relegated under this provision "to the same extent as a foreign" country at the time these Filipinos "were born" during the American territorial period, the question is--
What "American sovereignty” was there to "withdraw" in the first place if the Philippine Islands was to be regarded as a distinct and separate “foreign” country to begin with?
Besides, if the Philippine Islands was a “foreign" country, citizens of the United States residing in, or even just visiting, the country should have been similarly treated by Filipinos during that same period as "foreigners" and, if found "overstaying," declared forthwith as "illegal aliens" subject to immediate deportation!
But why would America regard the Philippine Islands to be "foreign" when the first civilian Governor-General of the U.S. territory of the Philippine Islands from 1901 to 1903 was William Howard Taft--the 27th President of the United States from 1908 to 1913 and the 10th Chief Justice of the United States from 1921 to 1930?
These glaring and comical contradictions arising from the re-baptism of Filipinos betray the absurdity of the above-cited provisions and highlight once again America's birthplace prejudice.
A person, of course, can only be born once; the time of birth, the place of birth and parentage are circumstances of birth unique to every individual. And they are indelible, for no law can alter what The Almighty has already ordained to be so.
Justice and a sense of fair play thus dictate that Filipinos born during the American territorial period should have been afforded ample opportunity, individually (not collectively) to divest the U.S. citizenship they acquired at birth upon the "withdrawal of American sovereignty over the Philippine Islands."
NOTE B:
Inexplicably, Sec. 2(a)(1) of the same Tydings-McDuffie Act declares that:
"All citizens of the Philippine Islands shall owe allegiance to the United States.”
By this Act, the U.S. Congress has virtually created a contradictory new status--or "identity"--to define in particular Filipinos born or residing in the Philippine Islands during the American territorial period. And the reason, as discussed earlier here, is that, under U.S. v. Rhodes, "all persons born in the allegiance of the United States are natural born citizens of the United States."
However, under Sec. 14 of the same Act (as discussed in Note A), Filipinos similarly situated are to be regarded as "aliens" (judicially defined as "a person owing allegiance to a foreign power"), having been unilaterally divested in that provision of their U.S. citizenship acquired at birth for being born (worded as "were born"), as claimed, in the "foreign" country of the Philippine Islands but, doubtless, a supposition contrary to fact, since the Philippine Islands continued to remain a U.S. territory until becoming independent well over a decade later in 1946.
Hence, the stark incongruity of two pledges of "allegiance" diametrically opposed to each other ("allegiance to a foreign power" and "allegiance to the United States") embedded in this weird new status the Act inevitably engenders--
Aliens owing allegiance to the United States.
NOTE C:
Americans have treated Filipinos born during the American territorial period unfairly different.
In 1985, America entered into what is referred to as a "Compact of Free Association" with the Federated States of Micronesia, the Republics of Marshall Islands and of Palau, which, among others, grants America the option to establish and use military areas and facilities or allows "U.S. military access in the region."
Compare this “pittance” to what America enjoyed under the 1947 Military Bases Agreement (MBA) which provided "the right to retain the use" of a total of 23 military bases in the Philippines for 99 years until 2045, which was amended in 1965 to terminate in 1991. The lease was "rent free" for the use of, among others, Subic Naval Base and Clark Air Base--America's largest post-war overseas military bases worldwide, being the HQ/Hubs of the 7th Fleet and the 13th Air Force. It was only in the early 1970s that America granted a $50 Million annual "military aid" to the Philippines.
In exchange for "U.S. military access in the region," America grants "Compact States citizens" the privilege to enjoy "unrestricted access to the U.S. to live, work, study and assume 'habitual residence' with no visa requirement."
But, in return for hosting America's largest post-war overseas military bases worldwide, Filipinos were unfairly treated. For why did America, upon its surrender of sovereignty in and over the territory and people of its former colony, the Philippine Islands, in 1946 withhold and deny from Filipinos born during the American territorial period the same privileges America bestowed upon "Compact States citizens" to enjoy "unrestricted access to the U.S. to live, work, study and assume 'habitual residence' with no visa requirement"?
"Compact State citizens," mind you, are citizens in territories of a former enemy, Japan, that Americans alongside Filipino patriots went to war and fought courageously against, suffered and died honorably together to vanquish.
Aware of the enormous economic problems their former colony faced during the post-Marcos Martial Law years, why was this opportunity "to live, work, study and assume 'habitual residence' with no visa requirement" not made available to Filipinos born during the American territorial period at the time the privileges were granted to "Compact State citizens" in 1986 while the U.S. bases were still fully functioning here and about the same time Filipinos staged "People Power"?
Not only that, if America readily condoned $4.1 billion in Iraqi loans "in aid of democracy" to celebrate Saddam's fall, why did America not offer the same goodwill to its former colonials after ousting another tyrant, Marcos, by granting them, not Dollars, but the same "unrestricted access" bestowed upon "Compact State citizens" and the opportunity that "access" economically provides?
But all this is wishful thinking now.
For just by reading the manner in which the provisions in the Tydings-McDuffie Act were so ludicrously worded (as discussed earlier here), it is obvious that the U.S. Congress did not care a hoot if the phraseology employed was incongruous with reason or not, since they were only meant to apply anyway to undiscerning ignoramuses--Filipinos--the "half-civilized, piratical, muck-running" "monkeys with no tails."
