Territorial Filipinos were Filipinos born in the Philippine Islands during the American territorial period.
"Citizenship is man's basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person ... deprived of the right to assert any rights."-- Chief Justice Earl Warren, dissenting, Perez v. Brownell (1948)
"Unconstitutional precedents create constitutionality." -- Irving Brant, The Bill of Rights, Its Origin and Meaning (1965)
A. TERRITORIAL FILIPINOS DENIED U.S. CITIZENSHIP BY A MONUMENTAL READING ERROR This paper investigates the political status of Filipinos during the American Territorial period, the status of the Forgotten, the Erased, the Invisible, a status that has never been accorded the thorough analysis it deserves.
This paper will refer to the group of "the aged and aging" Filipinos--now 62 years old or over as of 2008--who were born or residing in Las Islas Filipinas after the exchange of ratifications of the Treaty of Paris between the Spanish Crown and the United States on April 11,1899 (signed in Washington on Dec. 10, 1898) and before the Independence of the U.S. territory of the Philippine Islands (the Commonwealth of the Philippine Islands by 1935) is recognized on July 04, 1946 as Territorial Filipinos. Spanish colonizers earlier called them, Indios.
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. 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.
America, in fact, seems to have apologized to all the despised class of outcasts it had openly discriminated against through the years. In 1988, America granted US$20,000 in compensation to each of the 60,000 surviving Japanese-Americans who had been interned by the United States government during World War II, for actions that were based on "race prejudice, war hysteria, and a failure of political leadership." In 1993, America issued to Native Hawaiians the "Apology Resolution" for the 1893 overthrow of the Kingdom of Hawaii. America has also acknowledged its mistreatment of the Aboriginal Indians, the slave-born, the Chinese-Americans and even rewarded Vietnamese refugees with special immigration privileges--but not a word for Territorial Filipinos.
So when will America apologize for the genocide it perpetrated during the Philippine-American War to compel Territorial Filipinos to owe "allegiance" to their new "sovereign," the United States, in return for the "protection" afforded to "persons subject to the jurisdiction thereof" as inhabitants of Las Islas Filipinas the Spanish Crown ceded to the United States upon the exchange of ratifications of the Treaty of Paris, including their children born subsequent thereto? And when will America finally recognize the true status Territorial Filipinos were entitled to be conferred with as citizens of the United States under the Citizenship Clause, read grammatically as the author intended it to convey by the pair of commas between the phrase "and subject to the jurisdiction thereof"?
The Citizenship Clause in Sec. 1 of the Fourteenth Amendment to the U.S. Constitution 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."
Under Wong Kim Ark v. U.S. (1898), 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"), is viewed as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States."
With due respect, it is this MONUMENTAL READING ERROR of the phrase "and subject to the jurisdiction thereof" in Wong Kim Ark that justified the denial of U.S. citizenship to Territorial Filipinos, after Downes v. Bidwell (1901) held that the territories ceded under the Treaty of Paris were "unincorporated territory," merely "appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution"--but note that the decision applies only "within the revenue clauses."
Relying on this Doctrine of Incorporated Territory, Rabang v. INS (1994) opined that "birth in the Philippines during the territorial period does not constitute birth 'in the United States' under the Citizenship Clause of the Fourteenth Amendment, and thus does not give rise to United States citizenship.”
This paper will argue instead that the Citizenship Clause Sen. Jacob Merritt Howard authored consists of a compound subject, with the main noun phrase, "all persons," common to both subjects in coordinate configuration, joined together by the conjunction "and." To avoid repeating the common main noun phrase "all persons" in the second subject, Sen. Howard inserted the crucial first comma before the coordinator "and" to avail of the grammatical device of an "elliptical."
Thus, owing to the comma inserted before the conjunction "and," the phrase "subject to the jurisdiction thereof" in the Citizenship Clause is actually the second subject of the compound Sen. Howard structured as an "elliptical" for the complete construction, "[all persons] subject to the jurisdiction thereof," with the main noun phrase, "all persons," omitted rather than stated or repeated, for brevity or style, inferable from the same main noun phrase in the first subject it is coordinate with.
What is ironic is that the U.S. Senate often scolds the Philippine Government, threatening to withhold American "aid" to its former "colony," for committing a litany of "Human Rights" violations. But a Right is a Right by whatever name ascribed, such, for instance, as the Right as precious as Citizenship. In fact, “Citizenship,” in the words of Chief Justice Earl Warren, “is man’s basic right for it is nothing less than the right to have rights.” Thus, "Every child has the right to acquire a nationality." (UN Human Rights Commission Covenant)
What should be stressed, however, is the reality that Territorial Filipinos did not line up and beg for that Right America denied them. In fact, the $20 million America paid for the cession lined the pockets of the Spanish Crown, and not a single cent went to pay for the "allegiance" America compelled Territorial Filipinos to owe.
Rather, it was America who came to Las Islas Filipinas to dwell uninvited as "illegal aliens." If Americans disliked what they saw, they ought to have departed and left the Indios alone to chart their own destiny. But the American "aliens" decided to "overstay," insisted on staying by paying Spain $20 million and thereby impose their will as "sovereign" upon the Indios of Las Islas Filipinas in order to satisfy their sadistic pleasure of being able to look down, denigrate and make fun of people of a race and color entirely different from their own by whatever derogatory language racism could coin to describe them with: "half-civilized, piratical, muck-running," "savages," "monkeys with no tail." But the feelings were mutual--Indios detest the smell of "alien" body odor too.
And so, it was the American imperialism of commanding an unwilling people to owe allegiance solely to the United States and the American adventurism of purchasing sovereignty over the territory and the Indios of Las Islas Filipinas, herding them all "subject to the jurisdiction of the United States"--that the entitlement to "citizenship at birth" the Citizenship Clause confers--became, to Territorial Filipinos, theirs for the taking, in the same sense that the slave-born, similarly denied for 400 years or so, never dreamed of being recognized.
In hindsight, America should have desisted from ceding Las Islas Filipinas and from ratifying the Fourteenth Amendment, providing for a Citizenship Clause that embraces "all persons," irrespective of race or color, in the same way that all its previous Naturalization Acts were originally applicable only to "free white persons."
So, isn't it about time America finally learns to accept the consequences of itscession of Las Islas Filipinas in the context of the command in the Citizenship Clause in Sec. 1 of the Fourteenth Amendment, correctly read as the author intended it to convey, conferring citizenship upon "all persons subject to the jurisdiction of the United States" residing or born in the Philippine Islands during the American territorial period?
For to quote what Justice John Marshall Harlan, dissenting in Downes v. Bidwell (1901), said of the cession:
"A mistake in the acquisition of territory, although such acquisition seemed at the time to be necessary, cannot be made the ground for violating the Constitution or refusing to give full effect to its provisions. The Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis in our history may suggest the one or the other course to be pursued."
Territorial Filipinos now claim that Right denied. For why continue to allow the humiliation inflicted upon, and the deprivations endured by, what is referred to as the outcast "Tago-Ng-Tago" or TNTs in America, who, mind you, are our own nonetheless--the children of Territorial Filipinos? And why do our own OFWs--the children of Territorial Filipinos--have to travel overseas to other lands in the Middle East, Asean countries and elsewhere to work and be subjected to the indignities, the religious discrimination of a different culture, to be openly abused and insulted, even (habitually) raped and thrown out from high-rise edifices--begging "For a Few Dollars More"?
Sadly and more importantly, why have the benefits of our own Territorial Filipino WWII veterans and the War of Resistance Guerrilla fighters who fought bravely to defend American territory against the onslaught of an invading enemy of the United States been denied? Why have these now-sickly veterans been made to beg for the privileges and immunities that are not only due them rightly as U.S. veterans, but to their posterity as well?
The very survival of nationhood the Philippines is now confronted with is grim; but the radical solution this paper offers inescapably involves America, the mere mention of which provokes Nationalists to howl in protest. Thus, instead of forever getting mad and shouting invectives at America, why not get even for a change and legally demand the recognition of a Right America denied and lay open the injustice that has for so long festered?
So, in demanding for recognition, why not compel America to confront the one remaining injustice committed during its imperial past, and continues to this day to condone, that now cries out to be resolved and thereby afford our own present-day Filipinos, after over a century of denial, to claim their Right to the opportunity their forebears--America shamelessly disowned--irretrievably lost? Why wait until all of them are forever gone?
The efforts to be pursued are certainly not intended to even make a dent in what is already America's deeply ingrained "Racial Hierarchy"--"white" superiority, "non-white" inferiority--nor is this undertaking to be mistakenly viewed as a veiled attempt to propel the Republic of the Philippines to become the 51st State of the Union.
What is significant to underscore is the undeniable fact that Territorial Filipinos were all born before July 04, 1946, the date the U.S. Territory of the Philippine Islands (or the Commonwealth of the Philippines by 1935) became the Republic of the Philippines, a "country" that was officially non-existent at the time they were born.
A person, of course, can only be born once. The circumstances of birth--date of birth, parentage, and the sovereign at the place of nativity that determines nationality under jus soli--are indelible, better still, “a Gift of the Creator.” No law or regulation can nullify circumstances nature has dictated and the Almighty has ordained to be so by His Own Will alone, unless the miracle of a person suddenly resurrecting to be born again occurs.
Thus, although the boundaries defining the territorial jurisdiction of any country or state, even its official name, may change either by being absorbed as part of another or by becoming an independent country or state; however, nationality (which may not impart the same meaning as "citizenship" under U.S. law) attaches to the person, initially, at birth ("Birth and allegiance go together," U.S. v. Rhodes, 1866), otherwise, born stateless, while naturalization is the process by which a person acquires another nationality after birth, by renouncing voluntarily the nationality individually conferred initially at birth or that subsequently acquired thereafter.
The U.S. Supreme Court in Toyota v. U.S. (1925), citing Gonzales v. Williams (1904), opined that:
"The citizens of the Philippine Islands are not aliens. They owe no allegiance to any foreign government."
So, not born "aliens," Territorial Filipinos do not even qualify to be classified as "alien immigrants," after all. For why should Territorial Filipinos be required to take the Oath of Allegiance to be "naturalized" after birth when "They owe no allegiance to any foreign government," but owe allegiance instead to the United States at birth?
Having been acquired at birth, Territorial Filipinos continue to hold on to their true status that no doubt remains preserved to this day, for, in the particular case of the precious Right to citizenship, individual assent is necessary. So, unless voluntarily renounced or afforded the opportunity to divest themselves individually, their true status acquired at the moment of birth remains intact, preserved. Afroyim v. Rusk (1967) confirms:
"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.”
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 in existence at the time the birth of the person occurs, which, in jus soli, is the determinant to status. So, how should a Territorial Filipino, applying to be "naturalized" as an American, truthfully reply to the question in immigration documents: "Country of Birth"?
01. "The Republic of the Philippines," an archipelago that was officially recognized as a separate and independent "country" only on July 04, 1946--after all Territorial Filipinos had already been born? Or
02. "The U.S. Territory of the Philippine Islands" or, if born after 1935, "The Commonwealth of the Philippine Islands," over which the United States exercised "all rights of possession, supervision, control, sovereignty, or jurisdiction" and did not exist as a separate and independent "country" until July 04, 1946?
Whatever the reply, the confusion stems from the fact that, upon the withdrawal of American sovereignty in 1946, Territorial Filipinos became, technically, stateless at birth, disowned by the sovereign of their "Country of Birth," the United States, under a U.S. law that considered the Philippine Islands (their place of birth) to be a foreign country, retroactive, inexplicably, from the time they "were born"--"at birth"-- between 1898 and 1946.
The law should have been made to apply to persons born in the Philippine Islands after the independence of the Philippine Islands is declared, following the American withdrawal of sovereignty and certainly not retroactive before independence date, which is no doubt contrary to fact; thus, insofar as U.S. immigration laws are concerned, Territorial Filipinos were born stateless, without any "country" to call their own "at birth," without a "sovereign" at their "place of birth"--the determinant to the nationality "at birth" of a person born under jus soli.
The intent of the law was undoubtedly to declare the unwanted Territorial Filipinos as born "aliens" so as to render them all subject to U.S. immigration laws. To achieve this, the same law had to declare the "country" they were born in to be "foreign"; unfortunately, this "country" at the time they were born did not independently exist as yet--the Philippines Islands, their place of birth, being recognized merely as a "territory of the United States."
But how could the Philippine Islands be declared to be "foreign," when the U.S. Supreme Court as early as 1901--at the beginning of the American territorial period and just 7 months after the Doctrine of "Incorporated" Territory was handed down earlier in Downes v. Bidwell--already held in Fourteen Diamond Rings that:
"''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 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.
"But it is said that the case of the Philippines is to be distinguished … because on February 14, 1899, after the ratification of the treaty, the Senate resolved … that it was not intended to incorporate the inhabitants of the Philippines into citizenship of the United States, nor to permanently annex those islands … The meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it … It is further contended that a distinction exists … because of the armed resistance of the native inhabitants ... We must decline to assume that the government wishes thus ... to place itself in the position of waging a war of conquest."
This ruling is significant--at least insofar as the true status of Territorial Filipinos is concerned. For "although there was no stipulation that the native inhabitants should be incorporated into the body politic"; in the view of the Supreme Court, however, "the result was the same," no matter what the Treaty of Paris stipulated. And the reason why the denial to Territorial Filipinos of "the right to choose their nationality" is of no moment is that, upon the exchange of ratifications of the Treaty of Paris, "their allegiance became due to the United States."
Barber v. Gonzalez (1954) reiterated that "persons born in the Philippines during this period were "American nationals entitled to the protection ... and conversely owing permanent allegiance to the United States."
In fact, the 1934 Philippine Independence Act (Tydings-McDuffie Law) reiterated the mandate that:
"Sec. 2 (a) ... pending the final and complete withdrawal of the sovereignty of the United States over the Philippine Islands-- (1)All citizens of the Philippine Islands shall owe allegiance to the United States."
And it is this "allegiance" of Territorial Filipinos that the Supreme Court said "became due to the United States" that is of paramount importance in determining their true status, since U.S. v. Rhodes, cited in U.S. v. Wong Kim Ark (1898) and decided during the same year the Citizenship Clause was enacted in 1866 proclaimed--
"All persons born in the allegiance of the United States are natural-born citizens."
Thus, having been "born in the allegiance of the United States," Territorial Filipinos, in the light of U.S. v. Rhodes, ought to have been recognized as "natural-born citizens" of the United States.
Justice Noah Haynes Swayne, who penned the decision, was, of course, merely restating the theory behind the English common-law birthright rule, traceable to Lord Edward Coke's declaration in Calvin's Case or the Case of the Postnati (1608), also cited in Wong Kim Ark:
"Neither the climate nor the soil but obedience and allegiance that makes the subject born."
Wong Kim Ark likewise cites the similar view of British constitutionalist, A.V. Dicey in Conflict of Laws (1896):
"... though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England."
Justice Horace Gray in Wong Kim Ark, in fact, reiterates the “fundamental principle” on allegiance prevailing:
"The fundamental principle of the common law with regard to English nationality was birth within the allegiance-also called 'ligealty,' 'obedience,' 'faith,' or 'power'-of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual ... 'Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is ... The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established."
So, even though born in the "unincorporated territory" of the Philippines Islands, a territory merely "appurtenant and belonging to the United States, but not a part of the United States" (Downes v. Bidwell); Territorial Filipinos can still claim--under U.S. v. Rhodes--to be "natural-born citizens" of the United States, having been "born in the allegiance of the United States." For, citizenship "in theory at least depended, not upon the locality of a man's birth ["unincorporated" or "incorporated"], but upon his being born within the jurisdiction and allegiance" (Dicey).
Allegiance, of course, is the unifier of the two distinct class of U.S. citizens--the "natural-born" and the "naturalized" and distinguishes the U.S.citizen from an "alien" who owes allegiance to a foreign power.
Allegiance, in fact, becomes the equalizer, for the obligation of allegiance that naturally attaches to the child at birth as 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" is mandated to pledge after birth to be admitted as a "naturalized" citizen, after renouncing the allegiance owed to a foreign power at birth.
Thus, allegiance in compensation for protection is the sole determinant to U.S. citizenship.
Note that "citizenship at birth" by "birth within the allegiance" is consistent with Sec. 2218, 3C Am Jur 2nd (the respected legal encyclopedia), titled the "Doctrine of Jus Soli," which declares in no uncertain terms 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."
Clearly, under Sec. 2218, 3C Am Jur 2nd quoted above, Territorial Filipinos acquired "citizenship at birth," having been "born in the allegiance of the United States," the "sovereign" they owed allegiance to at the time their birth occurred in the U.S. territory of the Philippine Islands.
Yet, despite the weight of being "born in the allegiance of the United States" (U.S. v. Rhodes) in "territory over which the United States is sovereign" (Sec. 2218), America still denied or refused to recognize the "citizenship at birth"--"natural born," at that--Territorial Filipinos were doubtless entitled to be conferred with.
In fact, fearful of the certainty that Territorial Filipinos would be able to claim their true status later, the U.S. Congress concocted a new "identity"--"non-citizen national of the United States"--as provided under the U.S. Code: "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."
The "status" 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" (José A. Cabranes, Citizenship and the American Empire, 1978), acquired from Spain, namely the Philippines, Guam, and Puerto Rico, "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." (Charles Gordon et al., Immigration Law and Procedure, 2003).
Evidently, the purpose of calling Territorial Filipinos "Nationals of the United States"--a "status" the U.S. Constitution does not even recognize--was a clever way of accounting for their allegiance that "became due to the United States," their "sovereign," as held in Fourteen Diamond Rings cited above. But since the term "nationality" is generally regarded as synonymous with "citizenship," the U.S. Congress shrewdly attached the "killer" qualifier, "non-citizen," worded under the U.S. Code in no uncertain terms as "though not a citizen of the United States," to rule out any possibility of Territorial Filipinos claiming the Right to U.S.Citizenship later, thereby legitimizing the denial of their "citizenship at birth," even if they owed allegiance to the United States.
Later in 1934, the "identity" of the unwanted, the despised was finally downgraded, to read: Territorial Filipinos "shall be considered as if they were aliens," claiming that the Philippine Islands as held in the Insular Cases (1901) was "unincorporated territory," merely "appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution” (to repeat for emphasis, "the revenue," not the Citizenship, Clause), such that the Philippines Islands "shall be considered as a separate country" and immigration laws "shall apply to persons who were born in the Philippine Islands."
Thus, under American law (the Philippine Independence Act or the Tydings-McDuffie Law), the Philippine Islands "shall be considered as a separate country" retroactive at the time they "were born" although, inexplicably, "the final and complete withdrawal of sovereignty over the Philippine Islands" by the Unites States was still to take effect prospectively later on July 04, 1946 yet--after all of them had already been born.
Territorial Filipinos "who were born in the Philippine Islands" were thus pronounced not only as "aliens" at birth--which was doubtless what the law was intended to accomplish--but stateless at birth as well, since there is no other "country" that officially existed at the time they "were born" they could rightly claim to having been born in, the Philippine Islands being merely a territory of the United States at that time of their birth, 1898-1946.
As it is now, there exists this ludicrous situation where Territorial Filipinos--persons owing allegiance to the United States at birth or their children--are obligated to repeat the Oath of Allegiance before they are admitted as "naturalized citizens," are required to secure a U.S. visa to work or study and deported for overstaying as TNT's in their "country of birth," anddenied benefits as WWII veterans --because of a law that is based on a supposition, contrary to fact--the Philippine Islands was a "separate country" at the time they "were born."
But even granting that the Philippine Islands was now a "separate country" from the United States and Territorial Filipinos "were born" aliens; why were citizens of the United States not treated equally as aliens in the now-supposed "separate country" of the Philippine Islands during that same period?
So--"separate and unequal"--is this how America now interprets the solemn words "All men are created equal" ingrained in its Declaration of Independence from British colonial rule in 1776?
In fine, by asserting that the Philippine Islands was a "separate country" at the time Territorial Filipinos "were born," the law declares that the American territorial period that lasted for 48 years never existed at all there.
In fact, regarding the preposterous government claim that "territory [could] be foreign and domestic at the same time," the Supreme Court in Fourteen Diamond Rings (1901), citing De Lima v. Bidwell (1901), held:
"This theory also presupposes … that everything may be done which a government can do within its own boundaries, and yet that the territory may still remain a foreign country … To hold that this can be done as matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court." (bold added)
And so, as the Excluded, the Excepted, the "identity" of Territorial Filipinos under American law may be likened to the Homon Sacer (Latin for the “sacred man” in the negative sense) 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” who 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):
Under this new definition, therefore, allegiance is not anymore the determinant to citizenship.
In fact, insofar as the unwanted Territorial Filipinos in particular are concerned, the allegiance they owed to the United States at birth was meaningless. Thus, the U.S. Congress could now divest at its pleasure the merely statutory (not constitutional) "identity" of "non-citizen national" it designated Territorial Filipinos with in a neat "legal" way which, of course, means that allegiance owed, whenever convenient, can now be turned on or off.
But what of the allegiance aliens--who owe allegiance to a foreign power at birth--are required to pledge after birth to be admitted as naturalized U.S. citizens? Is the allegiance aliens owe after birth different from that Territorial Filipinos owed at birth, designated merely as "non-citizen nationals"?
If there really is a difference between the allegiance owed by naturalized citizens and that by Territorial Filipinos, how was the difference determined? Was it based upon race, color, creed, or purse, even "place of birth"? But allegiance "in theory" depended "not upon the locality of a man's birth" (Dicey). For "allegiance is nothing more than the tie or duty of obedience" (Wong Kim Ark); the synonym, "loyalty," in fact, although a kind of "feeling," may be subject to validation, for “The test of loyalty is conduct rather than intensity of feeling.” (Kleinig, "Loyalty," Standford Encyclopedia of Philosophy, 2007, http://plato.stanford.edu/entries/loyalty/)
In the particular unique case of Territorial Filipinos, their allegiance was tested in the crucible of war.
Commonwealth of the Philippines Supreme Court Chief Justice Jose Abad Santos, pledged the same allegiance before being shot and martyred in front of his grieving son by soldiers of the Land of the Rising Sun, for refusing to collaborate with the puppet government that would be instituted by the Empire of Japan--the enemy the United States was at war with, occupying the U.S. territory of the Philippine Islands, by proclaiming:
"I cannot possibly do that, because if I do so, I will be violating my oath of allegiance to the United States."
And what of the same Oath of Allegiance sworn to by thousands of Territorial Filipino Patriots the President of the United States, as Commander-in-Chief, ordered into the service of the U.S. Armed Forces, together with armed Guerrilla Resistance Fighters, to defend and protect American territory in gory battlefields during WWII?
Then, there was the Duty of Allegiance the U.S. President exhorted "every Philippine man, woman, and child" to uphold and exercise as "the loyal Americans of the Philippine Islands" in his "Message to the Filipino People" issued on Dec. 28, 1941, barely three weeks after the Japanese sneak attack on Pearl Harbor:
"In this great struggle of the Pacific, the loyal Americans of the Philippine Islands are called upon to play a crucial role ... 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.” (http://www.presidency.ucsb.edu/ws/?pid=16076)
Take careful note that, perhaps the only other time a U.S. President was compelled to call upon “the loyal Americans” to defend American soil against an invading army (British) was during the War of 1812; so, how many Patriots still alive today, other than Territorial Filipinos, have had the privilege of being called upon by the Executive no less “to do their duty” of, and “to play a crucial role” in, defending American territory?
But, why, pray tell, was the allegiance ALL Territorial Filipinos owed at birth--the allegiance their sovereign obligated "the loyal Americans of the Philippine Islands" to owe, the allegiance "every Philippine man, woman, and child" validated and ennobled in blood and tears as a Call to Duty to uphold and support the Constitution in Time of War--singled out to be deemed worthless by the very sovereign they willingly owed it to and to no other, while the very same allegiance aliens pledge to owe after birth, but only after renouncing the allegiance they initially owed to a foreign power at birth, entitles these aliens to citizenship of the United States? Why?
If "all persons born in the allegiance of the United States are natural born citizens" of the United States, why was the same allegiance Territorial Filipinos owed at birth to their sovereign, the United States, who sacrificed their lives, their fortunes in obedience to the Call to Duty by the President of the United States treated differently?
This paper is an attempt to address that grievous anomaly and to resolve the persistent question that still haunts Territorial Filipinos to this day, in spite of the torrent of disappointing court decisions, SCOTUS and appellate:
The issue: Were persons born in the Philippine Islands during the American territorial period really entitled under the Citizenship Clause in Sec. 1 of the Fourteenth Amendment to claim the Right to citizenship of the United States at birth that America denied and refused to recognize?
But is there really a constitutional mandate explicitly worded in no uncertain terms to justify the claim that Territorial Filipinos were citizens of the United States at birth?
The arguments to be presented here are entirely new and may be the first time they have ever been raised; the authors, therefore, beg the indulgence of the reader to assist them in identifying certain critical points they may have missed or failed to appreciate their relevance, so that the arguments they have presented in this paper may at least become the subject of a deeper study by others towards an acceptable revision and, perhaps, a favorable resolution later of the main issue raised concerning a Right Territorial Filipinos were entitled to enjoy.
This paper will argue that, upon the exchange of ratifications of the 1898 Treaty of Paris, Territorial Filipinos and their children born subsequent thereto, became persons "subject to the jurisdiction" of the United States; and hence, acquired citizenship of the United States at birth, even after birth, as the case maybe, constitutionally, under the Citizenship Clause of the Fourteenth Amendment, grammatically read as the author intended:
"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.”
However, under U.S. v. Wong Kim Ark--decided, interestingly, in 1898, during the same year the Treaty of Paris was signed--the phrase, "and subject to the jurisdiction thereof," is read as a "qualifying" phrase of the element preceding it, "All persons born or naturalized in the United States" (the commas enclosing it, notwithstanding), to exclude the "recognized exceptions to the fundamental rule of citizenship by birth within the country"--
"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."
But Chief Justice Melville Fuller (joined by Justice John Marshall Harlan), dissenting, 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" ... There was no necessity as to them for the insertion of the words, although they were embraced by them."
Indeed, why waste words for already "recognized exceptions"--"as old as the rule itself" (Wong Kim Ark)--and unnecessarily provoke a superfluity or the possibility of being misinterpreted later? Besides, by employing the rather cautious, guarded phrase "would appear," the opinion itself is uncertain of the view thus expressed
Chief Justice Fuller continues, in dissent, with a more disturbing note that may greatly affect the presidential bid of Republican presumptive candidate Sen. John McCain, born in the "unincorporated" Panama Canal Zone:
"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."
Without intending disrespect, this paper will argue, that the stare decisis Wong Kim Ark reading of the phrase in the Citizenship Clause, "and subject to the jurisdiction thereof"--by disregarding altogether the grammatical significance of the pair of commas inserted between--is a MONUMENTAL READING ERROR!
Based on this misreading of the Clause, the U.S. Supreme Court in Rabang v. Boyd (1957) held that:
"In the Independence Act, the Congress granted full and complete independence to the Islands, and necessarily severed the obligation of permanent allegiance owed by Filipinos who were nationals of the United States. Anything less than the severance of the ties for all Filipinos, regardless of residence in or out of the continental United States, would not have fulfilled our long-standing national policy to grant independence to the Philippine people. Section 14 of the Independence Act in clear language applies 'to persons who were born in the Philippine Islands.' This language demonstrates, and we hold, as did the courts below, that persons born in the Islands, and who thereby were nationals of the United States became aliens on July 4, 1946."
Later, the U.S. 9th Circuit Court of Appeals, in Rabang v. INS (1994), said:
"The courts have, however, uniformly rejected claims that people born in the Philippines during the territorial period retained their "national" status after Philippine independence. [Rabang v. Boyd (1957)] (rejecting claim that status as a United States "national" was so related to "citizenship" that U.S. relinquishment of the Philippine Islands could not divest petitioner of his U.S. nationality); Manguerra v. INS [9th Cir.1968] (rejecting argument that United States nationality could not be taken away without consent); Cabebe v. Acheson [9th Cir.1950] (rejecting claim that Congress did not have power to divest petitioner of nationality) ... “We now hold that birth in the Philippines during the territorial period does not constitute birth "in the United States" under the Citizenship Clause of the Fourteenth Amendment, and thus does not give rise to United States citizenship."
In a spirited dissent, Judge Harry Pregerson insisted that the Philippine Islands was part of the “dominion of the United States,” and thus persons born there during the American territorial period are U.S. citizens.
In 1998, the U.S. 2nd Circuit Court of Appeals in Valmonte v. INS (with Atty. Elly Velez Pamatong as counsel for Petitioner) unanimously dismissed a similar claim, simply citing the 9th Circuit rationale held in Rabang.
Nonetheless, to repeat what Dicey said, as quoted in Wong Kim Ark and cited earlier here, concerning the relationship of the status "at birth" to "the place of a person's birth"--"it in theory at least depended , not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance."
Thus, this paper will argue that, although Rabang v. INS, quoted above, held that, "birth in the Philippines during the territorial period does not constitute birth in the United States under the Citizenship Clause"; Territorial Filipinos, however, were born "in the allegiance of the United States" in the U.S. territory of the Philippine Islands during the American territorial period, and hence, acquired U.S. "citizenship at birth" under a still-unrecognized category of the Citizenship Clause, correctly read as the author intended it to convey, conferring U.S. citizenship not only upon "All persons born in the United States," but also upon "all persons subject to the jurisdiction thereof."
But how is "owing allegiance" to the United States" related somehow to being “subject to the jurisdiction thereof" in the Citizenship Clause? Sen. Lyman Trumbull, Judiciary Committee Chair and co-sponsor of the Fourteenth Amendment, defined this relationship during the Citizenship Clause debate on May 30, 1866:
"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. "
Chief Justice Morrison R. Waite discussed the "reciprocal" relationship in Minor v. Happersett (1874):
"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."
To repeat what the U.S. Supreme Court in Fourteen Diamond Rings said which is evidently the reason why America decided to disown Territorial Filipinos: "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"--
"The result was the same," because "Their allegiance became due to the United States, and they became entitled to its protection." And it is this "reciprocal protection" as citizens of the United States that the Citizenship Clause guarantees to be conferred upon "all persons subject to the jurisdiction of the United States" in return for owing allegiance thereto that entitles Territorial Filipinos born "in the allegiance of the United States" to be recognized as citizens of the United States at birth.
For "persons owing allegiance to the United States" are, reciprocally, in return, "persons subject to the jurisdiction thereof"--persons the still-unrecognized category in the Citizenship Clause, correctly read as the author intended to convey, confers the Right to claim citizenship of the United States.