I realize that Wiki is hardly the definitive answer on things like this (or on anything really), but the page that Really Not All That Bright linked earlier also says:
Looking at the last part of the quote: “and citizens or subjects of foreign States born within the United States” it would appear that “subject to its jurisdiction” is/was being used in the same way as “a subject of” or “having allegiance to”.
When I’ve been in the US I’ve certainly been subject to its laws, but I’ve never been a subject of the US.
For me, the issue is fairly simple: assuming that the child is born in the US, and the parents have made no effort to register the child with a consulate or embassy or otherwise apply for citizenship of their home (nation-) state on its behalf, it cannot be subject to any other jurisdiction, since as far as the home state is concerned, the child does not exist.*
That’s not the reasoning SCOTUS used in Won Kim Ark, though- they relied on the definition of “subject to jurisdiction” established at common law, which recognizes only the two exception to birthplace citizenship discussed by Giles: children born to consular/diplomatic officials or to members of a hostile force.
*I presume that there are or have been some countries which automatically extend citizenship (rather than just the right of citizenship) to any child born to its citizenry, in which case they would not be eligible for US citizenship.
One other thing – just an amusing tangential thought – how exactly is “wedlock” defined I wonder? (With regards to whether or not a US father is married to the non-US mother).
NZ law allows for de-facto / common law marriages. (3 years co-habitation in the nature of a marriage IIRC). If the man was a US citizen and the couple had a child, would full faith and credit mean the child was born in “wedlock”?
NZ law also allows for Civil Unions between heterosexual or homosexual couples… does FF&C recognise the hetero- but not the homo- ones?
We don’t have hetero- or homosexual civil unions, unfortunately. We do have common law marriages, which are recognized even in states that don’t allow them for their own residents.
Interesting, so FF&C would recognize the common law arrangement.
So, if you don’t mind a slightly torturous example: A US man and NZ woman living together in NZ for 3+ years (common law) are about to have a baby. If they contract a Civil Union before the birth is the baby born in or out of wedlock for the US definition?
The FF&C clause applies to the public acts, records and proceedings of the states, not of other nations. So Massachusetts would recognize a common law marriage in Florida, but not necessarily in NZ.
Foreign marriages are generally recognized in the US, but on the basis of comity*, not the FF&C clause.
*basically, the general ideas should observe the acts of others to keep things running smoothly.
Suppose the father is half Inuit and half Chinese, while the mother had a Maori father and a Scottish mother. White or not white? Relevant or not relevant?
The US government doesn’t recognize Civil Unions, and states aren’t required to either, at least according to Wikipedia. Part of the reason they tend to be considered inferior to marriage is that sort of lack of recognition anywhere but where that particular version is made.
Of course it is relevant to the framers of this legislation. You really think they are in the slightest concerned about white immigration and white children getting citizenship?
I assumed it would be obvious my post was somewhat tongue in cheek. Next time I will add a bunch of smilies and all.
I don’t know quite how this came out so garbled, but it was supposed to say, “the general idea that countries should recognize/observe the acts of others to keep things running smoothly.”
Ooh, new game show – White or Not White? Contestants have bags over their heads and wear gloves. They are asked a series of pop culture trivia-like questions, and the audience votes as to whether they think the contestant is white or not. Minority contestants who fool the audience get $10,000. White contestants who fool the audience get $10,000,000.
Which is what led to my odd thought. Common Law marriages are recognized under FF&C (yes?) and are legal in some states.
Although foreign marriages aren’t an FF&C issue (with thanks to Really Not All That Bright for putting me right), I was wondering if Common Law marriages were recognized under comity… and/or if foreign Civil Unions were. (Hetero- ones for the sake of this argument).
For certain purposes (temporary visas), U.S. Consulates will issue visitor visas to the opposite sex OR same-sex domestic partners of people who are coming to the U.S. for protracted periods on work visas, for example. So say, if a German exec wants to bring his partner on his multi-year U.S. work assignment in L-1 intracompany transferee status, he/she can apply for a B-2 visa for a 6-month stay, and then extend it in one-year increments. They would have to show that they had the means to support themselves, and that the partner did not have the intent to remain in the U.S. permanently, and all the usual stuff about documenting their partnership (kids are always useful, as are joint bank accounts, leases, etc. - all the same stuff one would use to document a marriage). I’ve done these on a number of occasions, particularly for Dutch/German/Scandinavian people, who tend to have very long-term relationships but not get married.
It doesn’t work for green card purposes, however. (My boss jokes that he’s been the cause of more Dutch marriages than the Dutch government.)
And a tourist visa would never be issued to a pregnant woman from a country that people want to get out of.
Getting an American tourist visa from a developing country these days is a nearly impossible task- you need to prove you have close family, hefty local bank accounts, good jobs, previous travel and other things that tie you back to your home country. For example, I’m told that exactly 0 tourist visas were issued for the country of Cameroon a couple years ago. Even a top finance minister was turned away for fear that he’d skip the visa. A pregnant lady from a desperate country has absolutely no chance of getting in short of asylum or doing it illegally.
