At first glance, dicta in the majority opinion in Trump v. Barbara appears to equate permanently lost dominions with those temporarily occupied by hostile enemy forces for purposes of the common law of natural born subjects.
[The King] could not demand allegiance from—for he could not protect—those born in lands that he did not control. Id. [Calvin’s Case], at 18a, 77 Eng. Rep., at 399. (Among that group were the people born in the King’s lost dominions—“France, Aquitain, Normandy, &c.”—over which he claimed an “absolute right” but had no actual power to rule. Ibid.) The same held true even in discrete areas within his kingdom that were temporarily outside his control.
Read broadly, this suggests that no one born in lands temporarily occupied by hostile enemy forces would be the King’s natural born subjects under the common law—or birthright citizens under the U.S. Constitution.
This reading would depart radically from the common law and U.S. constitutional law, however. Fortunately, the reading is overbroad. The majority’s summary of the authority for its proposition is limited to children born to enemies who possess the territory:
The same held true even in discrete areas within his kingdom that were temporarily outside his control. See id., at 18a–18b, 77 Eng. Rep., at 399 (if “enemies” were to “possess” a “castle or fort,” their children would not be born “under the King’s ligeance”).
And uncontroverted authorities restrict the exclusion from birthright nationality under the common law rule to children born in the occupied territory to either (a) the enemy alien invaders, or (b) enemy alien fathers, or (c) enemy aliens generally.
Calvin’s Case (1608) restricts the exclusion to children born in the occupied territory to the enemy alien invaders.
But if enemies should come into any of the King’s dominions, and surprise any castle or fort, and possess the same by hostility, and have issue there, that issue is no subject to the King, though he be born within his dominions, for that he was not born under the King’s ligeance or obedience. [Calvin’s Case at 18a—18b]
A British statute incorporating the common law limited the exclusion to children born in the occupied territory to any enemy alien father (not merely to the enemy alien invaders). Section 4 of the British Nationality Act 1948 excluded a child if “his father is an enemy alien and the birth occurs in a place then under occupation by the enemy.” The U.K. Home Office described the statute as merely incorporating historic principles (here at 27).
Australia incorporated the same exclusion in its Nationality and Citizenship Act 1948, describing it as merely declaratory of the common law. Nationality and Citizenship Act 1948, cl. 10(2), and Australia, Department of Immigration, Nationality and Citizenship Bill 1948, Explanatory Memorandum at 6.
The U.S. Department of State’s Foreign Affairs Manual applies the exclusion to children born in the occupied territory to any enemy alien. All other children born there receive U.S. citizenship at birth.
(e) Alien enemies during hostile occupation:
(1) If part of the United States were occupied by foreign armed forces against the wishes of the United States, children born to enemy aliens in the occupied areas would not be subject to U.S. jurisdiction and would not acquire U.S. citizenship at birth; and
(2) Children born to persons other than enemy aliens in an area temporarily occupied by hostile forces would acquire U.S. citizenship at birth because sovereignty would not have been transferred to the other country. (See U.S. v. Wong Kim Ark.)
Read broadly, the majority’s dicta would also overrule authorities like Carlisle v. United States, 83 U.S. 147 (1872), which recognize continuing duties of allegiance and liability for treason of most occupants during their stay in the temporarily occupied territory.
It would also reject other authorities recognizing birthright citizenship in U.S. territory in which the nation chooses not to exercise its authority in order to avoid international incidents (e.g., here at note 168 for U.S. territory permissively controlled by Mexico, and here at 417 ff. for congressional views on birthright citizenship in the partially British-occupied Oregon Country).
Fortunately, the majority opinion’s cited authority does not free most occupants from their continuing duties of allegiance in temporarily hostilely occupied territory or prevent citizenship by birth in territories in which the United States voluntarily declines to exercise its authority. The common law rule of allegiance in those territories is far broader than the Court’s dicta suggests.
Posted at 8:11 AM