I will not repeat that today there is no such difference in practical terms, unless you are the child of a foreign diplomat. Instead, it is enough to indicate how he justified this conclusion. Lash, Wurman, and others argue that the Nationality Clause did not represent any break with the past, but rather a continuity with it, and that it “brought with it, so to speak, the old ground” when the Fourteenth Amendment was ratified. This old soil in this case was 1862 report Attorney General Edwin Bates's “On Citizenship,” where he addressed the citizenship of freed black sailors who sought to command ships.
In every civilized country man is born with duties and rights—the duty of fidelity and the right to defense; and these are correlative obligations, one being the price of the other, and they form a perfectly sufficient connection between a man and his country, and the country in which he is born is, prima facie, his country. In most countries the old law generally established that this natural connection between a man and his native country was permanent; at least that the connection was inseparable by the action of the subject alone.
I will leave aside the absurdity of the assertion that the Attorney General's opinion of 1862 carries more weight than the express language of the Nationality Clause adopted and ratified seven years later. As Bernick, Gauder, and Kreis note, this interpretation does not even work on its own, since the Attorney General himself has explained that the threshold is virtually insurmountable.
“Bates identifies only one type of exception to the general rule of birthright citizenship: “a small and recognized class of natural-borns, consisting of the children of foreign ministers and the like,” they noted. Bates, by the way, also concluded that the sailors in question were citizens simply by being born in the United States. Dred Scott be damned.
