TERRITORIAL FILIPINO | A Filipino born in the Philippine ... territorialfilipino.wordpress/ Jun 13, 2009 - Laudably, the Second category–insofar as the children of U.S. citizens “born ...... –Polly J. Price, Natural Law and Birthright Citizenship in Calvins Case, 9 Yale ...... Elly Velez Pamatong as counsel for Petitioner) unanimously ... TERRITORIAL FILIPINO A FILIPINO BORN IN THE PHILIPPINE ISLANDS DURING THE AMERICAN TERRITORIAL PERIOD NOTES NOTE A: ON THE CONSISTENCY OF THE LANGUAGE USED IN BOTH POST CIVIL-WAR AMENDMENTS, 13TH AND 14TH With the Citizenship Clause grammatically read, the two post-Civil War Amendments, 13th (1865) and 14th (1868), can now be viewed to convey consistency, oneness of intent–Equal Protection in TWO areas of concern in relation to the person–“the sanctity of the person”: (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) “any place subject to their jurisdiction.” FOURTEENTH: The benefits, privileges and immunities U.S. Citizenship confers upon persons: (1) “born in the United States”; and (2) “subject to the jurisdiction thereof” Thus, had the Clause been grammatically read as intended, Justice Henry Brown in Downes v. Bidwell (one of the Insular Cases) would not have been justified in arguing that: “The 13th Amendment to the Constitution, prohibiting slavery and involuntary servitude ‘within the United States, or in any place subject to their jurisdiction,’ is also significant as showing that there may be places within the jurisdiction of the United States that are no part of the Union … “Upon the other hand, the 14th Amendment, upon the subject of citizenship, declares only that ‘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.’ Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place ‘subject to their jurisdiction.’” On the contrary, the Clause Senator Howard and the 39th Congress crafted imposes no “limitation” at all, for under its Second category, citizenship of the United States is “extended” not only to “persons born or naturalized in the United States,” but also upon “all persons” born or residing, “everywhere” (Senator Trumbull) who–in the phraseology of the Thirteenth–are “subject to their jurisdiction.” NOTE B: ON THE APPLICATION OF JUS SANGUINIS The legal principle of Jus soli bases “citizenship on place of birth” while Jus sanguinis on the “nationality of one’s parents.” (Black’s Law Dictionary 775, 5th ed. 1979) Laudably, the Second category–insofar as the children of U.S. citizens “born abroad” not “in the United States” are concerned–may be viewed in a way as having constitutionally justified the jus sanguinis feature of pre-Fourteenth Amendment laws conferring citizenship status upon children of U.S. citizens “born abroad” under the series of naturalization acts. This jus sanguinis feature of the Second category is what Chief Justice William Howard Taft also mentioned in Weedin v. Chin Bow (1927), regarding Chief Justice Fuller’s remarks in Wong Kim Ark: “The attitude of Chief Justice Fuller and Mr. Justice Harlan [in Wong Kim Ark] was that at common law the children of our citizens born abroad were always natural-born citizens from the standpoint of this government, and that to that extent the jus sanguinis obtained here.” In William Blackstone, Commentaries (1765), the jus sanguinis aspect in English Common Law was also recognized: “To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.” Thus, recognizing the application of jus sanguinis in the Second category to children of U.S. citizens “born abroad” is still consistent with Senator Howard’s declaration that his draft “will include every other class of persons” and “removes all doubt as to what persons are or are not citizens.” NOTE C: ON THE TERRITORIAL CLAUSE The Territorial Clause declares: “Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.“ Clearly, the power granted under the Territorial Clause is delimited only to “the Territory or other Property belonging to the United States,” with “Territory”–being joined by the conjunction “or”–merely one kind of a specified “Property,” among several unnamed “other Property.” Is this the general, albeit implied, power over “Territory” or “other Property”–Congress strained taut as mandate–to encroach upon the Sanctity of Persons born in or inhabiting such territory and to arbitrarily “dispose of” them as if these persons were one kind of “Property,” like the “Property” named “Dred Scott”? In Dred Scott v. Sandford (1857), Justice Roger Taney declared that– “… blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.“ In fact, Justice Edward White in Downes v. Bidwell said that Congress’ power to “dispose of” territory under the Territory Clause refers only to “a mere transfer of rights of property. “ In short, under the Insular Cases, inhabitants and those born in ceded territories are to be treated, not as persons, but as disposable, movable “Property,” for they had “no rights which the white man was bound to respect,” alluding to the manner in which blacks were being treated under Dred Scott. Justice Brown in Downes added: “It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people” and that “If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.” He concluded: “… the power to acquire territories 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 in what Chief Justice Marshall termed the ‘American Empire’.” Congress is concededly empowered under the 1787-framed Territorial Clause to “dispose of and make all needful Rules and Regulations respecting the Territory … belonging to the United States.” By 1868, however, upon the ratification of the Fourteenth Amendment and in view of the Citizenship Clause in Section 1 thereof (grammatically read), the rules were modified. For even granting such “rules” could be implied in the first place, Congress is now clipped off its power to even imagine that it can still “dispose of” “all persons subject to the jurisdiction of the United States” in “territory … belonging to the United States,” for they are persons the Citizenship Clause in Section 1 of the Fourteenth Amendment now shields with the constitutional armor of inviolability and declared to be “citizens of the United States.” NOTE D: ON CALVIN’S CASE As already cited earlier here, “Calvin’s Case addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered ‘subjects’ in England.” The post nati were persons born in Scotland following the descent of the English crown to King James, and, under Calvin’s Case, these children were considered “subjects” in England at birth. The parents of these children, or those already “born” and residing in Scotland prior to the descent of the English Crown to King James VI, were the antenati, and it was ruled in Calvin’s Case that the antenati were not to be regarded as “subjects” in England. Apparently, the same question of the antenati and post nati status of Scottish subjects that hounded Calvin’s Case was readily resolved by Senator Howard’s inclusion of a Second category, for under this category of the Clause, both the post nati and the antenati acquire citizenship of the United States, and in the words of Justice Harlan in Elk, “from and after the moment they become subject to the complete jurisdiction of the United States” at birth or after birth. NOTE E: ON THE POWER TO NATURALIZE Chief Justice Fuller, dissenting in Wong Kim Ark cited earlier here, stressed that: “… those born [abroad of American parents] 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.’” Thus, to Chief Justice Fuller, the authority embodied in the original Constitution was modified by the inclusion of the words “or naturalized in the United States” in the Citizenship Clause, restricting its application only to persons (specifically to “aliens”) “in the United States”–and nowhere else–at the time of their application for naturalization, Justice Black, with whom Justice Douglas and Justice Marshall join, dissenting in Rogers v. Bellei (1971) similarly argues: “The majority opinion appears at times to rely on the argument that Bellei, while he concededly might have been a naturalized citizen, was not naturalized “in the United States.” This interpretation obviously imposes a limitation on the scope of the Citizenship Clause which is inconsistent with the conclusion expressed above that the Fourteenth Amendment provides a comprehensive definition of American citizenship, for the majority’s view would exclude from the protection of that Clause all those who acquired American citizenship while abroad.” So, owing to the conjunction “or,” defined as “introducing the second of two alternatives,” in the phrase “born or naturalized in the United States,” which joins together the word “born” and the alternative, “naturalized” with the phrase “in the United States” as the determinant for both alternatives, the insertion of the words “or naturalized” may be regarded as having restricted or delimited the power of naturalization only to persons already “in the United States” and not to persons anywhere else–consistent with the reading that only those “born in the United States” are citizens of the United States, however the phrase “in the United States” may be defined by law to mean. Thus, if a person is deemed not to qualify as a “citizen of the United States” for having been “born” in a place designated as outside of, and not in, “the United States”; that same person who remains in that place so designated as outside of obviously does not also qualify to be “naturalized,” since to be “naturalized” is the “second of two alternatives” of the status conferred by the same determinant “in the United States” and joined to the first alternative “born” by the conjunction “or” which the person is already deemed ineligible to be conferred with under. Strangely enough, this consistency has not been made to apply in the particular case of the inhabitants of the U.S. territories of the Commonwealth of Puerto Rico and of Guam. For insofar as the phrase “born … in the United States” is concerned, Puerto Ricans and Guamanians are deemed not qualified to be “citizens of the United States” having been “born” in a place designated as outside of, and not in, “the United States,” being merely “unincorporated” territories; however, as regards the alternative, “naturalized in the United States”–joined by the conjunction “or”– Puerto Rico and Guam are considered, this time around, to be a place already “in the United States.” Hence, the inhabitants of both territories are deemed qualified to be “naturalized (although are not qualified to be “born”) in the United States–under what the U.S. Congress refers to as “collective naturalization”–and become statutory, but not Fourteenth Amendment, “citizens of the United States.” What this means is that: For purposes only of determining “place of birth,” Puerto Rico and Guam are deemed outside of, and not in “the United States”; but for purposes of “naturalization,” they are now suddenly found lying squarely “in the United States.” Do you not find the logic of this selective application of a constitutional provision somewhat bizarre, even comical … not to mention racist? NOTE F. ON THE POWER TO NATURALIZE EVEN “AT BIRTH” 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.” Note it well the limiting keywords “after birth.” Thus, “Collective Naturalization” should cover only those already “born,” say the inhabitants of (or those already “born” in) a newly-ceded territory upon annexation, but definitely the power to naturalize can not include the naturalization of persons at birth, or of those yet to be “born.” One question, it seems, is enough to underline the incongruity of the power exercised: Even assuming that persons are “in the United States” for purposes of “naturalization,” can the U.S. Congress confer “Collective Naturalization” upon Puerto Ricans and Guamanians “at birth,” when “naturalization” is applicable only “after birth”? The answer is, unbelievably, Yes! For under the Immigration and Nationality Act (INA), as codified in the United States Code (U.S.C.), the U.S. Congress, indeed, can: Sec. 302 (8 U.S.C. 1402) declares: “All persons born in Puerto Rico on or after April11, 1899 … subject to the jurisdiction of the United States … are hereby declared to be citizens of the United States.” To that, add Sec. 307 INA (8 U.S.C. 1407): “(b) All persons born in the island of Guam on or after April 11, 1899 (whether before or after August 1, 1950) subject to the jurisdiction of the United States are hereby declared to be citizens of the United States.” So, does the Territorial Clause, notwithstanding the Citizenship Clause in Sec. 1 of the Fourteenth ratified in 1868, empower Congress to naturalize persons in ceded territories even at birth? PUBLISHED IN: UNCATEGORIZED ON JUNE 15, 2009 AT 6:19 AM LEAVE A COMMENT CONCLUSION: TERRITORIAL FILIPINOS ARE NATURAL-BORN CITIZENS OF THE UNITED STATES This paper concludes that Territorial Filipinos, or Filipinos born in the U.S. territory of the Philippine Islands during the American territorial period between 1898 and 1946, are natural-born citizens of the United States for the following reasons: –Territorial Filipinos were all born “subject to the jurisdiction of the United States” and, reciprocally, born “in the allegiance of the United States.” –Territorial Filipinos were all born in territory over which the United States was sovereign, exercising “all rights of possession, supervision, jurisdiction, control or sovereignty in and over the territory and people of the Philippine Islands.” –Territorial Filipinos belong to the still-unrecognized, now-forgotten SECOND category of citizens of the United States under the Citizenship Clause of the Fourteenth Amendment, correctly read as the author, Senator Jacob Merritt Howard, intended the Clause he authored to convey– “All persons subject to the jurisdiction of the United States” at birth or after birth. Unless voluntarily renounced individually, Territorial Filipinos retain their status they all acquired at birth under the Citizenship Clause of the Fourteenth Amendment as natural-born citizens of the United States. PUBLISHED IN: UNCATEGORIZED ON JUNE 15, 2009 AT 5:59 AM LEAVE A COMMENT TERRITORIAL FILIPINOS–FILIPINOS BORN IN THE ALLEGIANCE OF THE UNITED STATES A. TERRITORIAL FILIPINOS MANDATED BY LAW TO OWE ALLEGIANCE TO THE UNITED STATES ARE AMERICAN NATIONALS AT BIRTH NOT ALIENS OF FOREIGN BIRTH By Article III of the 1898 Treaty of Paris (30 Stat. 1754), concluded 08 December 1898: “Spain ceded to the United States the archipelago known as the Philippine Islands, and the United States agreed to pay Spain the sum of $20,000,000 within three months. The treaty was ratified; Congress appropriated the money; the ratification was proclaimed. The treaty-making power, the executive power, the legislative power concurred in the completion of the transaction. The Philippines thereby ceased, in the language of the treaty, ‘to be Spanish.’ Ceasing to be ‘Spanish,’ they ceased to be foreign country. They came under complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. 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.” (Fourteen Diamond Rings, 183 U.S. 176, 1901) In 1902, after a period of military rule in the Philippines, the United States Congress enacted the Philippine Government Act (32 Stat. 691), and– “It was declared that all inhabitants continuing to reside therein who were Spanish subjects on April 11, 1899, and then resided in the Islands and their children born subsequent thereto, ‘shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain,’ according to the treaty. The citizens of the Philippine Islands are not aliens. See Gonzales v. Williams, 192 U.S. 1, 13 , 24 S. Ct. 177. They owe no allegiance to any foreign government. They were not eligible for naturalization under section 2169 because not aliens and so not within its terms …” (Toyota v. U. S., 268 U.S. 402, 1925) The U.S. Supreme Court in Barber v. Gonzalez, 347 U.S. 637 (1954) opined that, as regards the respondent, Gonzalez, who “was born in the Philippine Islands in 1913 … It is conceded that respondent was born a national of the United States; that as such he owed permanent allegiance to the United States, including the obligation of military service. In support of its view, the Court at Footnote (1) reiterated the pronouncements in several previous decisions: “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.” See Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945); “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.” See Gonzales v. Williams, 192 U.S. 1 (1904); Toyota v. U.S., 268 U.S. 402 (1925).” In the celebrated case of Decano v. State, 7 Wn.2d 613, 627, 110 P.2d 627 (1941), the Court cited the following decisions: “Alien is commonly understood and has been judicially defined to be a person who owes allegiance to a foreign government. Ex parte Fung Sing, 6 F. (2d) 670. The 1937 law, as we have pointed out, applies to native Filipinos, although it is well known that, since the Spanish-American War, they have owed allegiance only to the United States. Regardless of whatever uncertainty may have existed as to their precise status, whether quasi-citizens or American nationals, the United States supreme court, in effect, held, as early as 1904, in the case of Gonzales v. Williams, 192 U. S. 1, 48 L. Ed. 317, 24 S. Ct. 177, that they are not aliens. “In that case, it was decided that citizens of Porto Rico (whose status, with reference to United States nationality, is substantially identical with that of citizens of the Philippine Islands) were not aliens within the meaning of the Federal immigration laws. “In Toyota v. United States, 268 U. S. 402, supra, decided in 1925, the same court said: “The citizens of the Philippine Islands are not aliens. See Gonzales v. Williams, 192 U. S. 1, 13.” “In 1935, the United States circuit court of appeals for the ninth circuit squarely held, in De La Ysla v. United States, 77 F. (2d) 988, supra, that citizens of the Philippine Islands of the Filipino race are not aliens because, in the language of the opinion: “They owe no allegiance to any foreign government, but do owe allegiance to the United States.’ Other Court opinions have consistently declared that Territorial Filipinos, like the– “citizens of Porto Rico, whose permanent allegiance is due to the United States; who live in the peace of the dominion of the United States; the organic law of whose domicile was enacted by the United States, and is enforced through officials sworn to support the Constitution of the United States, are not ‘aliens,’ and upon their arrival by water at the ports of our mainland are not ‘alien immigrants,’ within the intent and meaning of the act of 1891“ (Gonzalez v. Williams, 192 U.S. 1, 1904). So, the Court’s view is clear: Territorial Filipinos are “not aliens,” they are “American nationals” and, upon arrival at a U.S. port of entry, they are to be regarded not as “alien immigrants”; and hence “not eligible for naturalization.” B. THE STATUS OF TERRITORIAL FILIPINOS AS “NON-CITIZEN NATIONALS OF THE UNITED STATES” AT BIRTH WAS A “CONVENIENT CONSTRUCT” AND “A TERM OF ART” TO RECOGNIZE THEM AS “MEMBERS OF THE NATIONAL COMMUNITY” AND TO DISTINGUISH THEM FROM “ALIENS” OF FOREIGN BIRTH Oddly enough, the term “national” does not appear in the U.S. Constitution as a definition of political status; rather, under it, one is either a “citizen” or, if not, an “alien.” As defined under the United States Code, specifically Title 8 (Aliens and Nationality), Chapter 12 (Immigration and Nationality), Subchapter I (General Provisions), Section 1101 (Definitions), (a): “(3) The term ‘alien’ means any person not a citizen or national of the United States. “(21) The term ‘national’ means “a person owing permanent allegiance to a state. “(22) The term ‘national of the United States means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. “(23) The term ‘naturalization’ means “the conferring of nationality of a state upon a person after birth, by any means whatsoever.” “(31) The term ‘permanent’ means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.” Note that the term “permanent” as used in the U.S. Code above does not convey the same meaning the dictionary defines it to be, but a “term” coined to denote its ANTONYM, since the permanence of the “relationship of continuing or lasting nature” can still be “dissolved,” in the same way that the solemn vow “till death do us part” Americans pledge during marriage ceremonies can still be untied by simply filing for a “divorce,” if pleaded “in accordance with law.” ”The term ‘national’ referred to non-citizen inhabitants of territories that the United States had acquired outside of its continental limits who nevertheless owed permanent allegiance to the United States and who were entitled to the United States’ protection.“ (See 4 Charles Gordon et al., Immigration Law and Procedure, Sec. 91.01[3][b], at 91-5, rev. ed. 1997.) Cabranes asserted that the status if “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, 127 U. Pa. L. Rev. 391, 396-97 n.12 , 1978, cited in Valmonte v. INS, 1998 WL 54575, 2nc cir., 11 Feb 1998). To Gordon, the term “National” was– “… originally intended to account for the inhabitants of certain territories–territories said to ‘belong to the United States,’ including the territories acquired from Spain during the Spanish-American War, namely the Philippines, Guam, and Puerto Rico–in the early twentieth century who were not granted U.S. citizenship, yet were deemed to owe ‘permanent allegiance’ to the United States and recognized as members of the national community in a way that distinguished them from aliens.” (see Charles Gordon et al., Immigration law and procedure, cited in Marquez-Almanzar v. INS, 2003). “The term ‘non-citizen national’ developed within a specific historical context and denotes a particular legal status. The phrase ‘owes permanent allegiance ‘… is thus a term of art that denotes a legal status for which individuals have never been able to qualify by demonstrating permanent allegiance, as that phrase is colloquially understood.” (Ibid.) In short, the special status of “non-citizen national” conferred upon Territorial Filipinos was a “convenient construct,” a “term of art” applicable only to the people of the newly-ceded territories, recognizing them as “members of the national community”–but not citizens of the United States—to distinguish them from the only other status, “aliens.” C. UNDER THE 1934 PHILIPPINE INDEPENDENCE ACT, TERRITORIAL FILIPINOS WHO ACQUIRED AMERICAN NATIONALITY AT BIRTH ARE MANDATED TO CONTINUE TO “OWE ALLEGIANCE TO THE UNITED STATES” BUT, UNBELIEVABLY, ARE ALSO TO “BE CONSIDERED AS IF THEY WERE ALIENS” In 1934, thirty-five years after the United States acquired the Philippines from Spain, Congress adopted the Philippine Independence Act which provided for the adoption of a Philippine Constitution and the withdrawal of United States sovereignty ten years thereafter. (Philippine Independence Act, ch. 84, § 10(a), 48 Stat. 456, 463, 1934, codified as amended at 22 U.S.C. § 1394). Section 8(a) of the Act states that: “(1) For purposes of the Immigration Act of 1917 … and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For such purposes, the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty…“ Section 2 (1) of the same Act, oddly enough, commands that: “All citizens of the Philippine Islands shall owe allegiance to the United States.” Thus, under the Act, “citizens of the Philippine Islands,” or Territorial Filipinos, continue to be obligated to “owe allegiance to the United States” and, therefore, remain to qualify as defined to be “nationals” of the United States. However, there is the glaring anomaly under the same Act which provides that Territorial Filipinos “shall be considered as if they were aliens” and, therefore, subject to “laws of the United States relating to the immigration, exclusion, or expulsion of aliens.” What is significant in the phraseology employed in Section 8(a)1 is that the words “as if” means “as would be the case if” or ”on the condition or supposition that.” Bartleby tells us that the past subjective “were” appears chiefly in “if” clauses … expressing hypothetical conditions” and is used “to describe an occurrence that you have presupposed to be contrary to fact.” Accordingly, the phrase “as if they were aliens” as used in the Act is obviously intended to convey the sense that “they”–referring to Territorial Filipinos–are NOT, in reality, “aliens.” Designating them under the Act as “aliens” is, therefore, “contrary to fact.” And the fact is that a person who is not an “alien” must be a “national.” Similarly, the clause “the Philippine Islands shall be considered as a separate country” is merely a supposition “contrary to fact,” since the Philippine Islands at the time the Act was passed in 1934 (until 1946 for that matter) was actually still a U.S. territory “subject to the jurisdiction of the United States.” The term “naturalization,” to repeat for emphasis, means “the conferring of nationality of a state upon a person after birth, by any means whatsoever” and the term “alien” means “any person not a citizen or national of the United States.” So, by definition alone, Territorial Filipinos–who are “American nationals” AT BIRTH for the simple reason that they “owe allegiance to the United States”–can never be classified by any stretch of linguistic imagination as “aliens.” Nor can they be regarded as “alien immigrants,” subject to “the immigration laws of the United States.” Thus, the Act intentionally creates a confusing, oxymoron status—Aliens owing allegiance to the United States, or American nationals (at birth) eligible to be naturalized (after birth). For while Territorial Filipinos are commanded in Sec. 2(1) of the Act to “owe allegiance to the United States,” and thus qualify as American “nationals” at birth; yet, in Section 8(a)(1) of the very same Act, Territorial Filipinos are to “be considered as if they were aliens” since “the Philippine Islands shall be considered as a separate county,” justifying, as a consequence, the declaration that “the immigration laws of the United States shall apply to persons born in the Philippine Islands,” including “naturalization.” D. DESIGNATING TERRITORIAL FILIPINOS AS ALIENS IN THE PHILIPPINE INDEPENDENCE ACT WAS INTENDED TO ANNUL AND INVALIDATE COURT DECISIONS RECOGNIZING THEIR STATUS AS AMERICAN NATIONALS AT BIRTH Under the Philippine Independence Act, Territorial Filipinos, mandated to continue to “owe allegiance to the United States,” are the only class of persons who can qualify to be designated the status of both a “national” and an “alien” at the same time! The underlying intention of those who schemed to downgrade the status of Territorial Filipinos from “American nationals” at birth to the contradiction of “as if they were aliens” was to forbid or deny the “entry” into the United States of Territorial Filipinos. So, by the Act, Americans were able to enjoy literally the best of both worlds—The “allegiance” of “aliens” together with “Power without Resposibility.” But the clincher to all this inanity is yet to unfold at Section 16 of the Act, declaring 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.“ In other words, “persons who were born in the Philippine Islands,” or Territorial Filipinos,” become subject to “the immigration laws of the United States,” including “all the provisions thereof relating to persons ineligible to citizenship.” It is obvious that, together with Section 8(a)(1) earlier discussed, this provision was intended to nullify and invalidate altogether at one fell swoop Court decisions that recognized Territorial Filipinos to be “American nationals” at birth and not as “aliens.” This cleverly-worded provision in Section 16 legalizes the status of Territorial Filipinos as “aliens” not by expressly designating them to be what the U.S. Court decisions have repeatedly declared that they are not, but by subtly inserting the “killer” clause that “persons who were born in the Philippine Islands” were persons born “to the same extent as in the case of other foreign countries,” and hence subject to “the immigration laws of the United States.” So, to legitimize relegating Territorial Filipinos to the status of “Aliens,” the U.S. Congress simply employed the past tense “were born” and declared the Philippine Islands, the place where they “were born,” to be “to the same extent as in the case of other foreign countries,” even though the Philippine Islands was unarguably not a “foreign” country at the time Territorial Filipinos, and to use the language of the Act, “were born.” Section 16 amounts to this: Territorial Filipinos “were born” in a “foreign” country; hence, “aliens” subject to U.S. laws on immigration. But the incongruity is inescapable: The territory of the Philippine Islands became the Republic of the Philippines only on 04 July 1946—after all Territorial Filipinos “were born” already; and this means that all of them “were born” during the period that the Philippine Islands was still undeniably a U.S. territory. Besides, how can the Philippine Islands be considered as being “to the same extent as in the case of other foreign countries” when the very same Section 16 also speaks of the “withdrawal of American sovereignty in the Philippine Islands”? The Philippine Islands (from the U.S. viewpoint) became a “foreign” country only after “the withdrawal of American sovereignty” on 04 July 1946. Thus, only Filipinos born after that cut-off date–or the “postnati” (as understood in Calvin’s Case)–should have been the persons placed subject to “the immigration laws of the United States,” not the “antenati,” or Territorial Filipinos, already born “American nationals” before that deciding cut-off date. So, if the Philippine Islands was to be regarded “to the same extent as in the case of other foreign countries,” what “American sovereignty in the Philippine Islands” was there to “withdraw” if, indeed, the Philippine Islands was really a “foreign” country? Can the claim of “American sovereignty” legally exist or be exercised in a territory the Americans themselves by a provision of law designate to be a “foreign” country? Americans may have disowned Territorial Filipinos under the Philippine Independence Act; but the “Philippine Islands” still appears listed (as of 2006) in the United States Code under Title 48 (Territories and Insular Possessions), Chapter 5 (Sections 1001 – 1276e, now “omitted” or “transferred”) with the following Chapter Notes: “Philippine Independence – Independence of the Philippine Islands recognized and American sovereignty withdrawn by Proc. No. 2695, eff. July 4, 1946, 11 F.R. 7517, 60 Stat. 1352, issued pursuant to section 1394 of Title 22, Foreign Relations and Intercourse, under that section.” The above note alone stating that “American sovereignty withdrawn by Proc. No. 2695, eff. July 4, 1946” can only mean one thing: America exercised the rights of sovereignty in and over the territory of the Philippine Islands before “Proc. No. 2695” was issued. And during the time the United States was sovereign (from 1898 to 1946), the Philippine Islands was undeniably not a “foreign” country as declared in the Philippine Independence Act, but a territory or insular possession of the United States. To appreciate fully the extent and consistency of Court decisions recognizing Territorial Filipinos as “American nationals” that the provisions in the Act invalidated on the basis of a “supposition,” read the following litany of citations already quoted earlier: –“[The Philippine Islands] ceased to be foreign country. They came under complete and absolute sovereignty and dominion of the United States, and so became territory of the United States” –“The citizens of the Philippine Islands are not aliens … They owe no allegiance to any foreign government. They were not eligible for naturalization under section 2169 because not aliens and so not within its terms” –”The Philippine Islands were American territory subject to the jurisdiction of the United States” –”Persons born in the Philippines during [the American territorial] period were American nationals entitled to the protection of the United States and conversely owing permanent allegiance to the United States” –“Regardless of whatever uncertainty may have existed as to their precise status, whether quasi-citizens or American nationals, the United States supreme court, in effect, held, as early as 1904 … that [Territorial Filipinos] are not aliens.” –“Citizens of the Philippine Islands were not aliens within the meaning of the Federal immigration laws” –”The citizens of the Philippine Islands are not aliens” – “Citizens of the Philippine Islands of the Filipino race are not aliens because, in the language of the opinion: ‘They owe no allegiance to any foreign government, but do owe allegiance to the United States’ –“[Territorial Filipinos, like the] citizens of Porto Rico, whose permanent allegiance is due to the United States are not ‘aliens,’ and upon their arrival by water at the ports of our mainland are not ‘alien immigrants’“ –The term “National” was “originally intended to account for the inhabitants of … the Philippines, Guam, and Puerto Rico … who were not granted U.S. citizenship, yet were deemed to owe ‘permanent allegiance’ to the United States and recognized as members of the national community in a way that distinguished them from aliens” Yet, owing to provisions in the Philippine Independence Act, an “American national” at birth, or a Territorial Filipino, is barred from “entry” into the United States without a U.S. Visa and become subject to arrest and deportation if “overstaying.” The grim irony of this humiliation is that Territorial Filipinos, proudly bearing the Stars and Stripes, validated their allegiance to the United States in gory battlefields of WWII, defending American territory from the onslaught of Japanese invaders, tantamount to barring “aliens” from the land of the rising sun to “enter” the U.S. territory of the Philippine Islands–without a U.S. visa. E. TERRITORIAL FILIPINOS ARE STATELESS AT BIRTH AND SLAVE-BORN Actually, at that time in 1934, there would not have been any need for inserting the “supposition” in the cited provisions of the Philippine Independence Act at all; the U.S. Congress could have simply proclaimed that it possesses the power to declare the “political status” of Territorial Filipinos as “aliens;” even if they were born in territory over which the United States is sovereign. Possession of that awesome power to designate the “political status” of inhabitants in ceded territories is basically what America was claiming under the “Doctrine of Incorporation” at the beginning of its regime in the Philippine Islands, a claim the Courts reluctantly recognized and upheld in the “Insular Cases.” Territorial Filipinos now challenge that claim. But why have Territorial Filipinos allowed this injustice, this glaring denial of the privileges and immunities of “American nationals” at birth, to fester unresolved for so long now? Territorial Filipinos certainly respect, and prefer not to question, the “wisdom” of an Act of the U.S. Congress, as upheld by the Courts, that renders concededly “American Nationals” at birth unduly subject to the “immigration laws of the United States.” Territorial Filipinos have long accepted the reality that America can very well continue the discrimination and the injustice they have openly inflicted upon two generations of Territorial Filipinos born from 1899 to 1946, and continue to disown their status and ignore their existence. Rather, what Territorial Filipinos are now seeking from America is the recognition of their status at birth, having been born “in territory over which the United States is sovereign,” mindful that, unless Congress clothes itself with the robe of the omnipotent “Creator,” Territorial Filipinos cannot be commanded to be born again! They cry for clarification, since the one festering question lingers: To what state were two generations of “Territorial Filipinos” born in during the American Territorial Period from 1899 to 1946 in the light of the fact that America, the sovereign at their place of birth, formally declared the U.S. territory of the Philippine Islands as a separate and independent state–the Republic of the Philippines–only on 04 July 1946? It is, therefore, safe to conclude that the provisions of the Philippine Independence Act, discussed and cited, intentionally rendered Territorial Filipinos stateless at birth. The Act may also be regarded as having viewed Territorial Filipinos, not as persons, not even as “colonial subjects,” but simply as “other Property” (as in Dred Scott), incident to, or part and parcel of, the purchase and cession of a “territory.” For under the Act, the U.S. Congress relegated Territorial Filipinos to a class comparable to a “human chattel,” or to persons who, having been purchased (in this instance for $20 million), are “the legal property of another or others and [are] bound to absolute obedience” (synonymous with “permanent allegiance”), which, mind you, is the dictionary meaning of the term eerily familiar in U.S. history, law, constitution, custom, and tradition, and that is, a “slave” in the sense of involuntary “absolute obedience” or legally mandated “permanent allegiance,” as distinguished from the equally obnoxious term “slavery,” generally defined as “involuntary servitude.” So, having been born unwanted, disowned, abandoned and neglected by the sovereign at their place of nativity, these questions remain to haunt: –Were Territorial Filipinos born stateless (unrecognized by their state of birth)? –Were Territorial Filipinos slave-born (bound at birth to involuntary permanent allegiance and absolute obedience to their state of birth)? Not content with having coined the absurd status of “non-citizen national of the United States” to designate Territorial Filipinos relying on the “myth” of the “unincorporated territory” doctrine, Congress under the Philippine Independence Act finally relegated them to the status of an “alien,” having been born supposedly in a “foreign” country. Yet, Court decisions have always conceded that, the territory of the Philippine Islands was “subject to the jurisdiction of the United States,” over which the United States was sovereign and that Territorial Filipinos were “American nationals” mandated to ”owe allegiance to the United States.” Why, then, were Territorial Filipinos–having acquired their U.S. nationality at birth and, in the words of the U.S. Supreme Court, “entitled to the protection of the United States”–made subject to U.S. immigration laws on the mere supposition (contrary to fact) as worded in the Act that they were “aliens”? The reason why? Racism, Discrimination and Birthplace Prejudice aborting Birthright Citizenship! In this regard, the U.S. Congress should be ashamed each time a Territorial Filipino is arrested, humiliated, handcuffed, detained and deported–or, in short, terrorized–for violating U.S. immigration laws, on the basis of a provision that is undeniably a “supposition” embedded in the Philippine Independence Act. This is the grand “supposition” earlier discussed, arbitrarily designating “American nationals” at birth–Territorial Filipinos–as “aliens” and the U.S. territory of their nativity–the Philippine Islands–as a “foreign” country, designations Congress merely “presupposed contrary to fact,” but to be applied nonetheless with the full force of the law even though inapplicable to them sans that “supposition.” The U.S. Congress understandably remains adamant and unperturbed, pointing to the myth of “unincorporated territory,” the “Territorial Clause,” the 1898 Treaty of Paris, and the official and judicial reading of the Citizenship Clause to legitimize the glaring racism, discrimination and birthplace prejudice of their acts. Anyway, to the U.S. Congress, a few more years (it’s now 2006), and Territorial Filipinos will have been all gone to meet their Creator, the Almighty above and beyond, who gifted them with the precious circumstances of their birth–indelible, invulnerable. To put it bluntly, the U.S. Congress clearly abhorred the idea of assimilating Territorial Filipinos; it was interested only in the territory but not its inhabitants. This view is best expressed in the remarks of Senator G.G. West–typical of those who voted against the ratification of the Treaty of Paris (see Objections to Annexing the Philippines, The North American Review, Vol. CLXVIII, No. 506, 1898): “I vote against annexing the Philippines because such annexation makes the people of those islands ultimately citizens of the United States, and necessitates the admission of the territory thus acquired a State. “The idea of conferring citizenship upon the half-civilized, piratical, muck-running inhabitants of two thousand islands, seven thousand miles distant, in another hemisphere and creating a state of the Union from such materials, is so absurd and indefensible that the expansionists are driven by the necessity of advocating the colonial system of Europe … “… whatever may be the status as to citizenship of the older inhabitants, their children born after annexation are citizens and voters … It being certain from [the Fourteenth and Fifteenth Amendments] that the children of the Filipinos will be citizens and voters, in case of annexation, it follows that they must be educated and civilized in order to fit them for the duties imposed by our jurisdiction over the country.” “Let the flag of our Republic not be ‘hauled down,’ but brought back to congenial soil where it will wave over freemen, instead of floating over conquered islands in another hemisphere and ten million half-barbarians bought for two Dollars each.” PUBLISHED IN: UNCATEGORIZED ON JUNE 15, 2009 AT 4:39 AM LEAVE A COMMENT PART TWO: PERSONS SUBJECT TO THE JURISDICTION OWE ALLEGIANCE A. INTRODUCTION During the same year Congress debated and approved the Citizenship Clause in 1866, Justice Noah Haynes Swayne in U.S. v. Rhodes declared that: “All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together.” And in Minor v. Happersett (1874) Chief Justice Morrison R. Waite held that: “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.” This paper argues that allegiance in compensation for protection is the sole determinant to citizenship and the unifier of the two distinct class of citizens–the “natural-born” and the “naturalized”–which marks them off from an “alien” subject to a foreign power. Allegiance, in fact, becomes the equalizer, for the obligation of allegiance that naturally attaches to the child at birth and creates the birthright of the “natural-born citizen” either by (a) the “right of soil” (jus soli) or by (b) the “right of blood” (jus sanguinis) is the same obligation of allegiance an alien after birth is mandated to pledge to be admitted as a “naturalized citizen.” This paper contends that, under the Citizenship Clause of the Fourteenth Amendment–grammatically read as intended, particularly the significance of the pair of commas the author, Senator Jacob Merritt Howard, deliberately enclosed the phrase “and subject to the jurisdiction thereof” with and its reciprocal relation to a Share
Posted on: Sun, 02 Nov 2014 10:46:33 +0000
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