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Title: Constitution Doesn’t Mandate Birthright Citizenship
Source:
Breitbart
URL Source: http://www.breitbart.com/big-govern ... andate-birthright-citizenship/
Published: Aug 18, 2015
Author: Ken Klukowski
Post Date: 2015-08-18 15:04:10 by cranky
Keywords: None
Views: 17409
Comments: 115
The Constitution’s Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal. Media commentators have gotten this issue dead wrong. Fox News’s Judge Andrew Napolitano says the Fourteenth Amendment is “very clear” that its Citizenship Clause commands that any child born in America is automatically an American citizen. That’s not the law. It has never been the law. Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen. How is that possible? This is from the Immigration and Naturalization Act of 1952 (INA), as it has been amended over the years. Is this federal law unconstitutional? No. The Citizenship Clause of the Fourteenth Amendment provides: “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.” Today’s debate turns on the six words, “and subject to the jurisdiction thereof.” As captured in the movie Lincoln, the Thirteenth Amendment—which ended slavery—barely passed Congress because many Democrats supported slavery, and it was only through the political genius and resolve of Republican President Abraham Lincoln that the proposed amendment passed Congress in 1865, sending it to the states for ratification. In 1866, Congress passed a Civil Rights Act to guarantee black Americans their constitutional rights as citizens, claiming that the Constitution’s Thirteenth Amendment gave Congress the power to pass such laws. But many voted against the Civil Rights Act because they thought it exceeded Congress’s powers, and even many of its supporters doubted its legality. The Civil Rights Act included a definition for national citizenship, to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” That was the original meaning of the jurisdiction language in the Fourteenth Amendment. A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government. The same members of Congress who voted for the Thirteenth Amendment in 1865 then voted to define citizenship for freed slaves in a federal law in 1866, then voted again months later in 1866—using only slightly different language—to put that definition of citizenship in the Constitution, language that was ultimately ratified by the states in 1868 as the Fourteenth Amendment. In 1884, the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment. The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens. That is why Congress can specify that the children of foreign diplomats and foreign soldiers are not Americans by birth. They’re not “subject to the jurisdiction” of the United States. Congress’s INA does not grant them citizenship; federal law never has. So why is a child born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship Clause is a floor, not a ceiling. Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires. Congress could expand it to grant citizenship to every human being on earth, or narrow it to its constitutional minimum. Media confusion on this issue is puzzling, because the greatest legal minds in this country have discussed the issue. (Just none of them were put on camera to explain it.) Scholars including Dr. John Eastman of Chapman University, and even Attorney General Edwin Meese—the godfather of constitutional conservatism in the law—reject the myth of birthright citizenship. Nor is rejection of birthright citizenship limited to conservatives. Judge Richard Posner—a prolific scholar who, despite being appointed by Ronald Reagan, is a liberal judicial activist—wrote in 2003 in Ofoji v. Ashcroft: We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship…. A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it…. The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress did not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense. It is another question as to whether Congress could strip citizenship from the children of illegals who already have it. If Congress could do that, then it could also strip citizenship from the many millions of foreigners who came to the United States legally and went through the lawful process to become Americans. There is no court precedent for that, and the congressional and ratification debates from the Fourteenth Amendment do not reveal a clear answer. Trump could rescind President Barack Obama’s executive amnesty, but that executive order did not grant anyone citizenship, and it would be a steep uphill climb in court to try to take someone’s citizenship away. And if the children already here are American citizens, then they could never be deported. Some other parts of Trump’s plan face even longer odds. The Due Process Clause of the Fifth Amendment to the Bill of Rights applies to all “persons,” not just citizens. And the courts have always held that due process requires any foreigner to be given a “meaningful hearing” in court before being deported. That would certainly impact the pace of deportation. Donald Trump’s position on immigration has changed drastically from his previous positions, just like his past support for socialized healthcare and abortion. He has not yet explained why he changed his position on immigration, and some voters do not trust that he sincerely holds to his current campaign positions. But none of that changes the legality of his immigration proposal. While parts of it may face legal challenges, denying citizenship to the children of illegal aliens is fully consistent with the Constitution’s Fourteenth Amendment. Ken Klukowski is legal editor of Breitbart News and a practicing constitutional attorney, and explains birthright citizenship in Chapter 12 of Resurgent: How Constitutional Conservatism Can Save America. Follow him on Twitter @kenklukowski.
Parts of Donald Trump’s immigration plan may raise serious constitutional questions, but the part that launched a media firestorm—ending birthright citizenship for the children of illegal aliens—does not.
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#1. To: cranky (#0)
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What does the constitution have to say about invasion or attack by foreign nations. How different is the invasion and occupation by Mexicans and the reconquista movement from the Japanese attack on Pearl Harbor?
I think it does. Seems pretty clear on the plain language. The Supreme Court has not ruled on the matter. When the Supreme Court does rule, 4 out of 5 Justices will agree with me. So, will Kennedy, Roberts, Alito, Thomas or Scalia, or any one of them, also agree? Probably. My bet would be that the Supreme Court would rule 9-0 that the 14th Amendment means what it says. They would explain, simply, that a child born in United States territory to parents who were not diplomats with immunity are US citizens by definition, are US citizens, as they are all subject to US jurisdiction at the time of their birth. I could be wrong, of course, but this has been the standard juridical understanding of the 14th Amendment for a century and a half, so I can't see the Supreme Court deciding otherwise. The Constitution will have to be amended.
So why was the Indian Citizenship Act in 1924 necessary? Didn't the idiotic Congress in 1924 know American Indians were already full citizens because of the 14th Amendment? There are three kinds of people in the world: those that can add and those that can't
A woman who is a Mexican citizen illegally crosses the border, has a child, and you say that child is a citizen of the United States. 18 years from now, that child receives a draft notice from the U.S. military. He's going to war. He may die. So he says, "Hold on there. My mother is a Mexican citizen. My father is a Mexican citizen. Yes, I was born in the U.S., but I consider myself to be a Mexican citizen with Mexican parents. So take your draft notice and shove it." No? He can't do that?
Didn't the idiotic Congress in 1924 know American Indians were already full citizens because of the 14th Amendment? Because Indians were not taxed, and lived under their tribal governments, subject to their tribal laws, and were not, when on the reservations, subject to the jurisdiction of the United States. Born on American soil under the jurisdiction of the United States = citizen. Born of foreign diplomats with diplomatic immunity = not under US jurisdiction = not citizen. Born on tribal land governed by Indian law, as an Indian neither taxed nor counted as part of the census = traditionally not under US jurisdiction, but by 1924, with the frontier long closed and the American government in fact exercising rulership and jurisdiction over the tribes, the Indians WERE in fect, by then, under US jurisdiction, and therefore properly considered citizens. When illegal aliens come to the US, do they have immunity from US laws like diplomats do? No. They are under US jurisdiction - they can be hauled before US courts. Are they like the Indians of the 1860s, that still lived wild under their own governments, untaxed, uncounted, and not able to be hauled into US courts to have US law enforced against them? No. They are under US jurisdiction. Therefore, the children born here are citizens. With the Indians, the latter half of the 19th Century and early part of the 20th saw the subjugation and domestication of the last Indians. They had settled down into a shabby dependency on the US, were in government schools, governed by US laws, and it was sought to integrate them into society. They were no longer "Indians not taxed, and not counted in the census". They were no longer REALLY independent, or REALLY living outside of US jurisdiction. So the states with large Indian populations wanted them counted, for federal patronage reasons. Hence the law change. That doesn't apply to the Mexicans. The Supremes will probably all look at the 14th and read it, and what it means is pretty obvious to the legally trained mind. It's why there are such wild and rather desperate efforts to pull in really obscure cases and circumstances to try to nullify the obvious. "Jurisdiction" means "subject to the courts of". Illegal aliens are subject to US laws and courts, and if born here, they're citizens. It's what the 14th Amendment SAYS, in plain language. Originalists can look at the intent too, and it's not helpful for those who want to evade the words. There were plenty of whites who wanted nothing better than to claim that blacks, being born of former slaves, were not citizens unless their grandfathers had been - extending the time period before which blacks could vote. It was always invidious, and the civil rights movement struck that stuff down using the 14th Amendment. All of that same jurisprudence and judicial habit of mind, and prejudice, will be there. I can't look at a single Justice on the Supreme Court and see any of them not upholding what I'm saying here. The Democrats won't budge on birthright citizenship. Given knowledge of the history of the amendment, Thomas is unlikely to vitiate its protections. Alito isn't likely to. Kennedy will probably oppose it because of his politics. It's tough to see what is given to Scalia to work with here. Jurisdiction and birth are the two things the document says. He'd have to become a judicial activist in a very strange direction to not uphold birthright citizenship. It's going to take a Constitutional Amendment, and that's never going to happen. So, we're better off focusing on border control and economic measures, because even Trump is not going to be able to erase birth right citizenship.
So he says, "Hold on there. My mother is a Mexican citizen. My father is a Mexican citizen. Yes, I was born in the U.S., but I consider myself to be a Mexican citizen with Mexican parents. So take your draft notice and shove it." No? He can't do that? Moot. We don't have the draft. And we never will again.
So he says, "Hold on there. My mother is a Mexican citizen. My father is a Mexican citizen. Yes, I was born in the U.S., but I consider myself to be a Mexican citizen with Mexican parents. So take your draft notice and shove it." No? He can't do that? But I'll answer your question anyway. He's a US citizen and subject to the draft. If he refuses to report, he will be prosecuted. He may well be a dual citizen of Mexico, but that will avail him nothing unless he flees to Mexico. If he flees to Mexico, they won't extradite him, probably (unless they're currying favor with the US government of the time, or the Mexican government approves the war on which the US is embarking). If he goes to Mexico, he'll be a draft dodger and forever subject to prosecution, until he comes back or there's another pardon.
This is birther bullcrap. It is directly contrary to Supreme Court precedent. It is a steaming pantsload. The whole argument is discredited and failed birther nonsense. Prior to July 4, 1776, the colonials got British birthright citizenship. After July 4, 1776, they got American state birthright citizenship. (Britain dates the change from the signing of the Parris Peace Treaty.) How is that possible? This is from the Immigration and Naturalization Act of 1952 (INA), as it has been amended over the years. Is this federal law unconstitutional? The immunity of a diplomat inheres to the child at birth. The child is not subject to the jurisdiction of the United States. The Civil Rights Act included a definition for national citizenship, to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” That was the original meaning of the jurisdiction language in the Fourteenth Amendment. A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government. This unforgivable, deliberately deceiving bullshit. The Civil Rights Act language and drafters were different, and a comment made by one congressman who did not draft the citizenship clause of the 14th Amendment cannot define the intent of the drafter of that clause, or somehow nullify the debate preceding passage of that clause. When Bingham spoke in the House about the CRA, he was attacking it as unconstitutional. Congressman Bingham's draft of the 14th Amendment contained no citizenship clause. The citizenship clause was added in the Senate by its drafter, Senator Jacob Howard. http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11 Congressional Globe, Senate, 39th Congress, 1st Session, May 30, 1866, page 1290, column 2, Senator Jacob Howard speaking: Mr. HOWARD. I now move to take up House joint resolution No. 127. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States. The PRESIDENT pro tempore. The question is on the amendments proposed by the Senator from Michigan, [Mr. HOWARD.] Mr. HOWARD. The first amendment is to section one, declaring that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country. The PRESIDENT pro tempore. The first amendment proposed by the Senator from Michigan will be read. The Secretary read the amendment, which was in line nine, after the words "section one," to insert: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. So that the section will read: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction tho equal protection of the laws. Mr. DOOLITTLE. I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment -- I presume he will have no objection to it -- by inserting after the word "thereof" the words "excluding Indians not taxed." The amendment would then read: Mr. HOWARD. I hope that amendment to the amendment will not be adopted. Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the "consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States. http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14 At page 2893, column 1, Senator Lyman Trumbull speaking: At page 2893, column 2, Senator Johnson speaking: http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=15 At page 2894, column 1-2, Senator Trumbull to Senator Johnson, The object of "subject to the jurisdiction thereof" was the same as "Indians not taxed," with that phrase indicating a class of people belonging to the quasi-nation of an Indian tribe, under tribal law. It was not meant to apply to Chinese, Mongolians, or any other classification of people. http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=15 At page 2894, column 3, Senator Trumbull: http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=16 At page 2895, column 2, Senator Howard: I concur entirely with the honorable Senator from Illinois, in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction. That question has long since been adjudicated, so far as the usage of the Government is concerned. The Government of the United States have always regarded and treated the Indian tribes within our limits as foreign Powers, so far as the treaty-making power is concerned, and so far especially as the commercial power is concerned, for in the very Constitution itself there is a provision that Congress shall have power to regulate commerce, not only with foreign nations and among the States, but also with the Indian tribes. That clause, in my judgment, presents a full and complete recognition of the national character of the Indian tribes, the same character in which they have been recognized ever since the discovery of the continent and its occupation by civilized men; the same light in which the Indians were viewed and treated by Great Britain from the earliest commencement of the settlement of the continent. They have always been regarded, even in our ante-revolutionary history, as being independent nations, with whom the other nations of the earth have held treaties, and in no case, I believe, has either the Government of Great Britain or of the United States recognized the right of an individual Indian to transfer or convey lands. Why? If he was a citizen, in other words, if he was not a subject of a foreign Power, if he did not belong to a tribe whose common law is that land as well as almost every other description of property shall be held in common among the members of the tribe, subject to a chief, why is it that the reservation has been imposed and always observed upon the act of conveyance on the part of the Indian? http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=17 At page 2896, column 3, Senator Howard: At page 2897, column 1-2, Senator Williams: If there be any doubt about the meaning of that paragraph, I think that doubt is entirely removed by the second section, for by the second section of this constitutional amendment Indians not taxed are not counted at all in the basis of representation. The words in the second section are as follows: They are not to be regarded as persons to be counted under any circumstances. Indians not taxed are not even entitled to be counted as persons in the basis of representation under any circumstances; and then the section provides -- Now, can any reasonable man conclude that the word “citizens” there applies to Indians not taxed, or includes Indians not taxed, when they are expressly excluded from the basis of representation and cannot even be taken into the enumeration of persons upon whom representation is to be based? I think it is perfectly clear, when you put the first and second sections together, that Indians not taxed are excluded from the term “citizens;” because it cannot be supposed for one moment that the term “citizens,” as employed in these two sections, is intended to apply to Indians who arc not oven counted under any circumstances as a part of the basis of representation. I therefore think that the amendment of the Senator from Wisconsin is clearly unnecessary. I do not believe that “Indians not taxed” are included, and I understand that to be a description of Indians who maintain their tribal relations and who are not in all respects subject to the jurisdiction of the United States. In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, “subject to the jurisdiction of the United States,” to mean fully and completely subject to the jurisdiction of the United States. If there was any doubt as to the meaning of those words, I think that doubt is entirely removed and explained by the words in the subsequent section; and believing that, in any court or by any intelligent person, these two sections would be construed not to include Indians not taxed, I do not think the amendment is necessary. - - - - - - - - - - That is why Congress can specify that the children of foreign diplomats and foreign soldiers are not Americans by birth. They’re not “subject to the jurisdiction” of the United States. Congress’s INA does not grant them citizenship; federal law never has. http://supreme.justia.com/us/112/94/case.html Elk v. Wilkins, 112 U.S. 94 (1884) At 99: Elk was born a member of an Indian nation. Leaving the tribe decades later did not make him a citizen at birth. At 101-102: Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations. http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep169&id=686#686 United States v. Wong Kim Ark, 169 U.S. 649, 664-668 (1898) The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, secretary of state, in 1854 ( 2 Whart. Int. Dig. [2d Ed.] p. 394); by Attorney General Black in 1859 (9 Ops. Attys. Gen. 373); and by Attorney General Bates in 1862 (10 Ops. Attys. Gen. 328, 382, 394, 396). Chancellor Kent, in his Commentaries, speaking of the 'general division of the inhabitants of every country, under the comprehensive title of 'Aliens' and 'Natives," says: 'Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are, in theory, born within the allegiance of the foreign power they represent.' 'To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a state, while [169 U.S. 649, 665] abroad, and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.' 2 Kent, Comm. (6th Ed.) 39, 42. And he elsewhere says: 'And if, at common law, all human beings born within the ligeance of the king, and under the king's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary.' "Subject' and 'citizen' are, in a degree, convertible terms as applied to natives; and though the term 'citizen' seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, 'subjects,' for we are equally bound by allegiance and subjection to the government and law of the land.' Id. 258, note. Mr. Binney in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said: 'The common- law principle of allegiance was the law of all the states at the time of the Revolution and at the adoption of the constitution; and by that principle the citizens of the United States are, with the exceptions before mentioned [namely, foreign-born children of citizens, under statutes to be presently referred to], such only as are either born or made so, born within the limits and under the jurisdiction of the United States, or naturalized by the authority of law, either in one of the states before the constitution, or, since that time, by virtue of an act of the congress of the United States.' Page 20. 'The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.' [169 U.S. 649, 666] Page 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. IV. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations. But at the time of the adoption of the constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, 'citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,' and 'mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicile'; and children born in a foreign country, of a French father who had not established his domicile there, nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by 'a favor, a sort of fiction,' and Calvo, 'by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality.' Poth. Trait e des Personnes, pt. 1, tit. 2, 1, Nos. 43, 45; Walsh-Serrant v. Walsh-Serrant (1802) 3 Journal du Palais, 384, 8 Merlin, Jurisprudence, 'Domicile' (5th Ed.) 13; Pr efet du Nord v. Lebeau (1862) Journal du Palais 1863, 312, and note; 1 Laurent, Droit Civil, No. 321; 2 Calvo, Droit International (5th Ed.) 542; Cockb. Nat. 13, 14; Hall, Int. Law (4th Ed.) 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the constituent assembly in 1791 to that of the French republic in 1799. Constitutions et Chartes (Ed. 1830) pp. 100, 136, 148, 186. [169 U.S. 649, 667] The Code Napoleon of 1807 changed the law of France, and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code 'appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe,-'De la vieille regle francaise, ou plutot meme de la vieille regle europ eenne,'-according to which nationality had always been, in former times, determined by the place of birth.' 1 Demolombe, Cours de Code Napoleon (4th Ed.) No. 146. The later modifications of the rule in Europe res upon the constitutions, laws, or ordinances of the various countries, and have no important bearing upon the interpretation and effect of the constitution of the United States. The English naturalization act of 33 Vict. (1870) c. 14, and the commissioners' report of 1869, out of which it grew, both bear date since the adoption of the fourteenth amendment of the constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth, and is a natural-born British subject. Dicey, Confl. Laws, 741. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden, and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark, and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece, and Russia. Cockb. Nat. 14-21. There is, therefore, little ground for the theory that at the time of the adoption of the fourteenth amendment of the constitution of the United States there was any settled and definite rule of international law generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion. [169 U.S. 649, 668] Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.
But that is not what that phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual. Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country. No. Senator Lyman Trumbull did not say that. That is ad lib crap. And it would not make any difference had Trumbull said it. Anyone who thinks tourists in the USA are not subject to its jurisdiction would think otherwise if a tourist took a rifle and shot a bunch of people. If not subject to U.S. jurisdiction, the tourist could not be prosecuted or punished. They could be deported. Senator Jacob Howard drafted and introduced the citizenship clause to the 14th Amendment. Prior to that, it had no citizenship clause. His role in that part of the 14th is slightly larged than that of Trumbull. "Subject to the jurisdiction" has nothing to do with political allegiance of the parents. It has to do with the child being subject to the laws and courts of the United States. There is no court holding that agrees with this nonsense. There's a bunch that do not. Among the "critics" who disagree with von Spakovsky are various iterations of the U.S. Supreme Court.
If you say so. There are three kinds of people in the world: those that can add and those that can't
That settles it then. There are three kinds of people in the world: those that can add and those that can't
"No. Senator Lyman Trumbull did not say that. That is ad lib crap." Wiki is your friend: "1st Session, 39th Congress, pt. 4, p. 2893. Senate Judiciary Committee Chairman Lyman Trumbull, participating in the debate, stated the following: "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means."
Can we draft tourists into our military? Hey, they're subject to our jurisdiction while they're here, right?
Two wrong illegals shouldn't shit out a right.
I'm the infidel... Allah warned you about. كافر المسلح
There's a political world and a juridical world. They overlap, of course, and in times of political strife they overlap a great deal, to the point where the former can overwhelm the latter. Judges are either elected politicians or appointed politicians. They are politicians nevertheless. A Supreme Court Justice, having lifetime tenure, is considerably insulated from the political process - and therefore better able to execute his personal political will without consequences - but they're never COMPLETELY free of the political process, for two reasons: (1) they can be impeached, and (2) the size of the court and its range of jurisdiction can be limited or extended. And of course there is always the third limitation: they don't have an army or a police force of their own. So if the other two political branches do not check each other, the Supreme Court can be ignored. During the Civil War, the Supreme Court issued dozens, maybe hundreds, of habeas corpus writs. Lincoln ignored them, and the only authority that could check Lincoln was Congress - and it was dominated by his party and eager to fight the war. I don't remember Taney's exact words, but I recall a decision he wrote in which the court ordered something or other, and he knew that it would be ignored, so he wrote something bitter words along the lines of 'but I understand that the writ of this court no longer runs in this land'. That's right, Rodge. Your "Dred Scott" decision sought to delineate, by fiat, the rights of slaveowners in such a way as to lock in slavery rights in the territories, rendering the issue off limits to the political process. The Court has spoken! And wrought a civil war as the fruit. Lincoln had the power to ignore that toxic institution and its doddering ignoramuses, and he did. The Supreme Court effectively ceased to exist during the Lincoln Presidency on most matters, and deserved to. The Court has no power to enforce anything, and when the Legislature and Executive are united against it, the best the Justices can hope for is not to be summarily impeached, tried for treason and hanged if that's the good will of the governing powers. (I exaggerate only slightly. During the French Revolution, many judges were guillotined for defiantly continuing to execute "equitable powers", which the National Assembly had stripped from the judiciary in retaliation for its anti-revolutionary decisions. When the judiciary refused to be cowed, judges began to be executed, a fact which swiftly and permanently broke the will of the judiciary to directly defy the legislative power. To this day French judges have no equitable power, and it's still a criminal offense for a judge to cite to another judicial opinion as the basis of his decision. Power is a very serious matter. People shed blood over it. The Supreme Court has managed to entrench for itself a great deal of power, judicial, and quasi-legislative. The court has taken chances with that power in recent decades, notably over civil rights, but the bulk of country was in truth with the degregation power so the court won, and bolstered its power thereby. Given those things, although the Supreme Court are political appointees, and although many are self- proclaimed "conservatives", this is a case in which "conservatism" is likely to be a very juridical matter and not a political one. We know how the Democrat justices will rule on an assault on birthright citizenship: they will say that it is obviously unconstitutional on the very face of the 14th Amendment, given the court's long-established precedents on the meaning of "jurisdiction". But the conservative justices, too, are very likely to conservatively "stare decisis et non quieta movetur" - to stand by what has been decided and not disturb settled precedent. The Amendment says soil and jurisdiction, effectively. Soil is a matter of geography, and jurisdiction has been beaten to death by the courts. That is not an area where there is a question. Maybe it meant thus and so in 1700 in Switzerland, or in 1800 in Washington, or 1873 in Georgia, but in 2015, it means "subject to the trial court". A diplomat with immunity isn't subject to the nation's courts unless his home country waives immunity. But everybody else, pretty much, is. The old, odd case of Indians, arising from the particular circumstances of their being in the country, was always a special case. And it was resolved 100 years ago. Scalia and Thomas, Altio and Roberts may make some sort of a show of going through the legislative history of the 14th Amendment, but in the end every one of them is going to come down on the side of what the Supreme Court has said for a century about jurisdiction. And Kennedy? He's not even going to go through the charade. The 14th Amendment bestows birthright citizenship on anybody born in the USA who isn't a diplomat with immunity. That's the status of "jurisdiction" TODAY, and I don't think there is one justice on the Supreme Court that will go anywhere BUT there. There are plenty of things that can be done to address illegal aliens. And birthright citizenship - if it's a matter of sufficient political power and anxiety in the people, COULD - under the leadership of a politician determined to do it - even become the vehicle to significantly attack and diminish the power and prestige of the Supreme Court. But on the issue itself, the Court will rule that the 14th Amendment means what every judge and lawyer in practice knows it means, and it will do so early. To get rid of birthright citizenship will either require a constitutional amendment, or a joint Congressional and Presidential assault on the very authority of the court that limits the power of judicial review itself, through legislation and through executive defiance without consequences from Congress. Amend, or assault and diminish the court. Those are the options here. Amendment won't make it through the political process. That leaves a coordinated assault on the power of the Supreme Court. I'd like to see that, actually - I think the French are right - but I don't actually see that coming from anywhere, including Trump. When Trump gets power, he will look at his tableau of options and see birthright citizenship as a "hard" point. He'll use it to beat the court and the opposition, and drum up support for other things, but he won't launch a direct assault on the court's authority. He's too much of a traditionalist to do that. Birthright citizenship is guaranteed by the 14th Amendment. The anchor baby law will remain the Supreme Law of the Land. To stop anchor babies will require policing the border, because the Court isn't going to allow the status of those who are born on this side of the line to be changed. You can take that to the bank. The decision will be 9-0.
Tourists subject to our jurisdiction are not CITIZENS. But COULD we pass a law and draft them? Well, sure. We could pass a law to dissect them and eat them. The Germans had laws that turned Jewish tourists into slaves and then soap, so why not turn tourists into soldiers. Give them guns and grenades and heavy weapons and send them out there to protect the interests of the country that dragooned them. Yeah! THAT'LL show 'em! Oh, wait...
The birth of a child is not "shitting something out". But yeah, under the 14th Amendment, a pregnant illegal who makes it into the USA gives birth to an American child, your and my fellow citizen. Regardless of what any of us thinks about that. We have two choices: accept that's the Constitution and look at OTHER ways of addressing the illegal flow and anchor baby problem (like: building the wall and bringing home the US military from abroad to man it, and severely punishing US employers that hire illegals. Or we can amend the Constitution. Those are the choices. The second isn't going to happen, so we're left with the first.
The opinions of the 1860s are not the law. The law is what it says, and what the Supreme Court has said it means. Jurisidiction is a well-worn phrase. In 2015, it means subject to the US courts. All illegals are. Therefore, their babies born here are citizens, per the 14th Amendment. THe Supreme Court will decide that 9-0, You have to pick your battlefield, and this one will be Azincourt for those who want to control the Border. This fight cannot be won. Others can. Focus on those.
I do say so, and what I say in this case is the Supreme Law of the Land. All nine justices of the Supreme Court agree with me on this, as will be discovered quickly should Trump win and actually start to move in that direction…and not quickly figure out that this is not the battlefield on which to fight, because there's nothing to negotiate and no way to win. Choose better ground. This is a frontal assault into the guns. This will be Azincourt, and the Supreme Court will be the archers. Different tactics can win the fight, but a headlong assault on the 14th Amendment would be slapped down by 98.5% of the judges in America. And the 1.5% that would decide the other way would probably be removed from the bench within a year.
It could have just said All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside. That would accomplish the meaning you say. But they added "and". There was no need to do that if they were seeking the meaning that you believe. So it HAS to mean something else. No other reason to put it there.
I personally don't accept that... IT is no peer of mine, and I feel that our constitution needs amending if the USC is as warped as you on this issue.
I'm the infidel... Allah warned you about. كافر المسلح
It does. It meant, in 1868, that people within US territory who were "over the horizon", past the frontier… Indians out there on the "American" plains that were American in name but not really; Canadians wandering out there in the woods that accidentally crossed unmarked lines and set up a cabin but who thought it was Canada, and of course foreign diplomats and staff of every stripe with diplomatic immunity, and passengers on foreign ships passing through American waters - they were not subject to US jurisdiction as a matter of reality. And therefore not citizens. But the world has changed. There are no more wild Indian tribes. When those words were written, neither the Sioux nor the Apache nor the Nez Perce had fought yet. They were real nations, spread over real large areas, with real fight in them, but definitely NOT subject to US jurisdiction. We'd be in an Indian War with one bunch of them and General Custer, Civil War hero, would be dead with his whole unit a little under e decade LATER. The Idnians would still be at war a half-century later. America was not settled ground then. THere were hostile nations within. REAL nations, with real governments, and weapons, and not controllable. it would take three wars to bring them in check. They were on territory the US claimed, but that the US did not rule, and would not rule for decades more - and had to fight to secure - and took some hard knocks to get. That's primarily what it meant. But also people in transit. Today we fly around. Then, everybody sailed around. It took time. Ships passed in and out of ports a lot, for supplies, to rest, etc. Foreigners who were foreigners and intended to BE foreigners got on and off, or stayed off at anchor. Today, we have record-keeping and the like to track these things. There was no such thing as a driver's license in 1868. They weren't immune to US laws if they came ashore, exactly, but if they were on their ships tied up, it was admiralty, and admiralty says that the law of the flag controls the ship. So in 1868 a Spanish ship tied up in New Orleans could be inspected by Customs Officials for tariffs, if offloading, but it's passengers were not subject to US law unless they got off the ship and went wandering out and committed a crime…and even then it might depend. If it were a petty crime, by getting back aboard the ship, the citizen had passed within the jurisdiction of Spain, and local officials could not barge aboard the ship. They might prevent it from leaving, and there by a diplomatic dance. The point is, that there were a lot of people who spent considerable time in a transit status, aboard a foreign flag ship in the US, and those persons were not generally subject to US jurisdiction - insofar as US officials could not simply board the ships and take off passengers and the like. The law was complicated. Diplomats have always been immune. The distinction had meaning in 1868. In the age of airports, ID cards, tracking and judicial and executive overreach, where people routinely carry "papers", etc., the reach of jurisdiction is much broader. There are no more wild Indians. Today, the jurisdiction limitation means that foreign diplomats' kids are not American.
I'm not "warped". I am telling you the way that it is. I do not have the power to change things. I'm telling you that the Sun will rise in the East. I'm telling you that water flows downhill. I'm telling you that Hillary Clinton will lie tomorrow and the day after. And I'm telling you that, given the meaning of "jurisdiction" in our long-settled jurisprudence, that the Supreme Court will strike down attacks on birth right citizen and force an amendment, and no amendment like that will get 2/3rds of both houses and 3/4s of the states. Won't happen. Pick another battlefield. You're going to lose on this one. Don't shoot the messenger.
I am afraid established precedent precedes your question by about 160 years. Good ol' Honest Abe (the guy that chopped down a cheery tree and could not tell a lie) pulled Irish "visitors" right off the boats in New York harbor and elsewhere and immediately enlisted them in the US Army to defend the Glory of the Union by murdering the Southern enemy.
He won.
Naw, he is rotting in HELL; remember Good ol' Honest Abe murdered over 500,000 Americans for a few bank interests that were centralized in the North while the South was completely void of any real capability.
I agree with that statement although it is my view that the 14th amendment covers to children of LEGAL immigrants and NOT the children of illegals. Their children were put under the anchor baby umbrella by the 1965 immigration act. But SCOTUS would most likely declare a repeal of that provision unconstitutional after they examine the "penumbras" and "emanations" of the Constitution. Quis custodiet ipsos custodes?
It will NEVER happen with a weak SCOTUS; these nine dressed upped black robed klouwns go along with any demanding President that goes against cultural and social instinct to include allowing the construct of "marriage" to be mandated by federal law, where none exists at all. These were states rights issues. And SCOTUS shall use 0bama's "laws" as a precedent for "their" further decisions, assuming they permit a court review.
I agree with you. IF there were a "god of the Constitution" lurking out there, with an actual opinion of what the words "MEAN", in a transcendental, absolute sense, the divine INTENT of those words, so to speak, then I'm sure that birth right citizenship would not "mean" the children of illegals. But the Constitution is just a set of loose rules for political cricket, they're not Scripture and there's no constitutional god out there holding the "true" meaning. It means whatever the Supreme Court says it means, and it means whatever the various players in the game actually do and claim (and believe) is "correct". The Supreme Court has a very long and very important set of jurisdictional rules. The whole concept of "jurisdiction" grew and grew through layer after layer of court decisions over the centuries. Why? Because if the US has "jurisdiction", that means that the Supreme Court can hear the case, which means they have power over the outcome. The Supreme Cpurt has been an eager beaver over the years at finding jurisdiction. That is why going to the Court with a political argument, that it should dramatically reduce the meaning of the word "jurisdiction" so as to allow the politicians to "get at" the anchor babies without having to amend the Constitution is simply a no-fly zone. Congress and the President will be asking the Supreme Court to carve away at the basis of its own power, and to claim that it does not itself have the power to judge cases that concern illegal aliens. For that is precisely what "No US jurisdiction" would MEAN under two centuries of Supreme Court precedent. It would mean that the Supremes were powerless over a case. The Supremes will NEVER rule that they are powerless over average people of whatever nationality within the United States. Never. The whole argument turns on jurisdiction, but for the Supreme Court to rule that there is no jurisdiction would mean that the Supreme Court would have no power over tens of millions of people in America. Once that is understood, is is clear why the Supreme Court will rule 9-0 that the US DOES have jurisdiction over those people, and that therefore their babies are citizens. To ask the Supreme Court to rule "No jurisdiction" would be akin to asking the Congress to relinquish its ability to make laws regarding some important subject matter. It ain't happening, no matter HOW much the people want it. Fact is, if the people REALLY want it that badly, they'll have the supermajorities necessary to amend the Constitution. But they don't. And they won't. That is why birth right citizenship is a terrible pace to pitch a battle. It's doomed before the first shot is fired. The place to fight this is at the border, with walls, surveillance and redeployment of military forces from abroad to the US.
It's a terrible place to pitch a battle, but it's a good place to make a feint. Trump has chosen the ground well, because it fires people up.
"1st Session, 39th Congress, pt. 4, p. 2893. Senate Judiciary Committee Chairman Lyman Trumbull, participating in the debate, stated the following: "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means." The Congressional Globe is my friend. I had already quoted what Trumbull actually said at my #9, and also explained that it was Senator Howard who introduced the 14th Amendment. My #9 gives extensive quotes regarding what "subject to the jurisdiction" means. A child born in the United States without diplomatic immunity is subject to the jurisdiction of the United States. The clear context of Trumbull was a child born into an Indian nation tribe was not subject to the jurisdiction of the United States because he was under the jurisdiction of the tribal laws. A child born of two illegal aliens in the U.S. is under the complete jurisdiction of U.S. law, U.S. law enforcement, and U.S. courts. In addition, SCOTUS decisions have repeatedly held that children born in the United States without immunity are citizens at birth. It was a function of English common law before July 4, 1776 and said common law was adopted by all thirteen colonies upon independence and carried into statehood. Legislation cannot conflict with SCOTUS holdings interpreting the Constitution. http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14 At page 2893, column 1, Senator Lyman Trumbull speaking:
I think you refer to Ex parte Merryman, by Taney sitting as Chief Justice of the U.S. Supreme Court at Chambers. It is not an opinion of the U.S. Supreme Court, but an in chambers opinion of a single justice. That is what Taney wrote on the hand written opinion, and what he anounced from the bench just before he read it. That was in the courthouse for the Circuit Court in Maryland. Some argue it was a Circuit Court opinion as it was so reported by a court reporter. Ex parte Merryman, 17 Fed. Cas. 144, Case 9487, pp 146-155 (1861). The constitution provides, as I have before said, that " no person shall be deprived of life, liberty or property, without due process of law." It declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated ; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the per. sons or things to be seized." It provides that the party accused shall be entitled to a speedy trial in a court of justice. These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial ofiicers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found. In such a case, my duty was too plain to be mistaken. I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him ; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States, It will then remain for that high officer, in fulfilment of his constitutional obligation to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.
Notice that about half the able-bodied men in the state of Wisconsin were foreigners who had not been naturalized. Stanton’s reply confirmed they were eligible for the draft. OFFICIAL RECORDS: Series 3, vol 2, Part 1 (Union Letters, Orders, Reports) Page 369 UNION AUTHORITIES. Honorable E. M. STANTON: About one-half of the able-bodied men between eighteen and forty- five years in this State are foreign born. They have declared their intention to become citizens of the United States. Have the right to vote under our State constitution if twenty-one years old. Have enjoyed and are enjoying all the privileges of citizens. Are they liable to be drafted? They should be liable. Great injustice will be done to our State if they are exempt, and our quota would be too large if they are exempt. Cannot those who are not willing to subject themselves to draft be ordered to leave the country? Answer this immediately. I must have the time for volunteering extended, as asked for by my dispatches of Saturday and yesterday. Please answer them. E. SALOMON, Governor of Wisconsin. - - - - - Washington City, D. C., August 12, 1862. Governor SALOMON, Madison, Wis.: Foreigners who have voted at our elections are regarded as having exercised a franchise that subjects them to military duty. Declaration of intention to become naturalized is not of itself sufficient to prevent their taking advantage of their alienage, but a man who votes must bear arms. Your telegram respecting extension of time for volunteering cannot be answered until to- morrow, some information from different States being required. EDWIN M. STANTON, Secretary of War. - - - - -
There are plenty of things that can be done to address illegal aliens. And birthright citizenship - if it's a matter of sufficient political power and anxiety in the people, COULD - under the leadership of a politician determined to do it - even become the vehicle to significantly attack and diminish the power and prestige of the Supreme Court. But on the issue itself, the Court will rule that the 14th Amendment means what every judge and lawyer in practice knows it means, and it will do so early. To get rid of birthright citizenship will either require a constitutional amendment, or a joint Congressional and Presidential assault on the very authority of the court that limits the power of judicial review itself, through legislation and through executive defiance without consequences from Congress. I absolutely concur. A child born to two illegal aliens awaiting deportation in a detention center is a natural born citizen. The child is born in the United States and does not enjoy immunity from U.S. jurisdiction. What could be done, and what I understand Trump to be alluding to with a nuanced statement, is that the parents could be deported. The U.S. citizen child could not be deported, but they could take the child with them, keeping the family together. Or not. Their choice. The 14th Amdt. establishes citizenship for the child. It does not grant anchor status for the parents.
We can and have drafted aliens, see #34. Tourists are under U.S. jurisdiction while in the U.S. Drafting of alien tourists would be a major violation of international law. Reciprocity would indicate that if we drafted tourists, others could do the same to U.S. citizen tourists.
All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside. That would accomplish the meaning you say. No. That would make the child of a foreign diplomat, born in the U.S., a natural born U.S. citizen. Recognized diplomats have immunity and are not subject to our laws while in the U.S. Their child also has immunity.
I believe this is backwards. The 1965 Act put the alien parents under the anchor baby umbrella. It is the baby who is the qualifying U.S. immediate relative citizen. The 1965 Act could be repealed or amended by another piece of legislation.
From the 'Trump, Deny Citizenship --' thread: --- Because once born in the USA, the baby is a citizen, and cannot be deported. -- And because it's parents could be deported, it would be a ward of the court until its maturity, subject to the courts orders, which could allow the parents to take the child with them when they are deported. -- Or, the child could remain in the USA, raised by foster parents.. Problem solved?
But the U.S. Constitution trumps international law. You're in the Army now.
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Top • Page Up • Full Thread • Page Down • Bottom/LatestConstitution Doesn’t Mandate Birthright Citizenship
#2. To: cranky (#0)
Constitution Doesn’t Mandate Birthright Citizenship
#3. To: Vicomte13 (#2)
I could be wrong, of course, but this has been the standard juridical understanding of the 14th Amendment for a century and a half, so I can't see the Supreme Court deciding otherwise.
#4. To: Vicomte13 (#2)
"They would explain, simply, that a child born in United States territory to parents who were not diplomats with immunity are US citizens by definition, are US citizens, as they are all subject to US jurisdiction at the time of their birth."
#5. To: cranky (#3)
So why was the Indian Citizenship Act in 1924 necessary?
#6. To: misterwhite (#4)
18 years from now, that child receives a draft notice from the U.S. military. He's going to war. He may die.
#7. To: misterwhite (#4)
18 years from now, that child receives a draft notice from the U.S. military. He's going to war. He may die.
#8. To: misterwhite, nolu chan (#4)
Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.
#9. To: cranky, A K A Stone, misterwhite (#0)
(Edited)
The Constitution’s Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal.
Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.
In 1866, Congress passed a Civil Rights Act to guarantee black Americans their constitutional rights as citizens, claiming that the Constitution’s Thirteenth Amendment gave Congress the power to pass such laws. But many voted against the Civil Rights Act because they thought it exceeded Congress’s powers, and even many of its supporters doubted its legality.
RECONSTRUCTION.
SEC. 1. All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.
All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the States wherein they reside.
The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United Slates? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is, what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them.
If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.
But the Senator wants to insert the words, “excluding Indians not taxed.” I am not willing to make citizenship in this country depend on taxation. I am not willing, if the Senator from Wisconsin is, that the rich Indian residing in the State of New York shall be a citizen and the poor Indian residing in the State of New York shall not be a citizen. If you put in those words in regard to citizenship, what do you do? You make a distinction in that respect, if you put it on the ground of taxation. We had a discussion on the civil rights bill as to the meaning of these words, “excluding Indians not taxed.” The Senator from Maryland, [Mr. Johnson,] I think, on that occasion gave this definition to the phrase “excluding Indians not taxed,” that it did not allude to the fact of taxation simply but it meant to describe a class of persons; that is, civilized Indians. I was inclined to fall into that view. I was inclined to adopt the suggestion of the Senator from Maryland, that the words “excluding Indians not taxed” did not mean literally excluding those upon whom a tax was not assessed and collected, but rather meant to define a class of persons, meaning civilized Indians; and I think I gave that answer to the Senator from Indiana, [Mr. Hendricks,] who was disposed to give it the technical meaning that “Indians not taxed” meant simply those upon whom no tax was laid. If it does mean that, then it would be very objectionable to insert those words here, because it would make of a wealthy Indian a citizen and would not make a citizen of one not possessed of wealth under the same circumstances. This is the uncertainty in regard to the meaning of those words. The Senator from Maryland and myself, perhaps, would understand them alike as embracing all Indians who were not civilized; and yet, if you insert that language, “Indians not taxed,” other persons may not understand them that way; and I remember that the Senator from Indiana was disposed to understand them differently when we had the discussion upon the civil rights bill. Therefore I think it better to avoid these words and that the language proposed in this constitutional amendment is better than the language in the civil rights bill. The object to be arrived at is the same.
Mr. TRUMBULL. I think there are decisions that treat them as subjects in some respects. In some sense they are regarded as within the territorial boundaries of the United States, but I do not think they are subject to the jurisdiction of the United States in any legitimate sense; certainly not in the sense that the language is used here. The language seems to me to be better chosen than it was in the other bill. There is a difficulty about the words, “Indians not taxed.” Perhaps one of the reasons why I think so is because of the persistency with which the Senator from Indiana himself insisted that the phrase “excluding Indians not taxed,” the very words which the Senator from Wisconsin wishes to insert here, would exclude everybody that did not pay a tax; that that was the meaning of it; we must take it literally. The Senator from Maryland did not agree to that, nor did I; but if the Senator from Indiana was right, it would receive a construction which I am sure the Senator from Wisconsin would not be for; for if these Indians come within our limits and within our jurisdiction and are civilized, he would just as soon make a citizen of a poor Indian as of the rich Indian.
I think the language as it stands is sufficiently certain and exact. It is that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Mr. HOWARD. ... We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by the roots and destroy it, and expose the freedmen again to tho oppressions of their old masters.
Mr. WILLIAMS. I would not agree to this proposed constitutional amendment if I supposed it made Indians not taxed citizens of the United States. But I am satisfied that, giving to the amendment a fair and reasonable construction, it does not include Indians not taxed. The first and second sections of this proposed amendment are to be taken together, are to be construed together, and the meaning of the word “citizens,” as employed in both sections, is to be determined from the manner in which that word is used in both of those sections. Section one provides that --
All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
But whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, &c.
In 1884, the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment. The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens.
The question, then, is whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States within the meaning of the first section of the Fourteenth Amendment of the Constitution.
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
So why is a child born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship Clause is a floor, not a ceiling. Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires. Congress could expand it to grant citizenship to every human being on earth, or narrow it to its constitutional minimum.
That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than 50 years after the adoption of the constitution, when the matter was elaborately argued in the court of chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke (1844) 1 Sandf. Ch. 583.
#10. To: A K A Stone (#8)
[Hans A. von Spakovsky at FR] Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.
#11. To: Vicomte13 (#5)
Therefore, the children born here are citizens.
#12. To: nolu chan (#9)
This is birther bullcrap.
#13. To: nolu chan, A K A Stone (#10)
"Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country."
#14. To: nolu chan (#10)
"Anyone who thinks tourists in the USA are not subject to its jurisdiction would think otherwise if a tourist took a rifle and shot a bunch of people."
#15. To: Vicomte13 (#2)
#16. To: nolu chan (#10)
#17. To: misterwhite (#14)
#18. To: GrandIsland (#15)
#19. To: misterwhite (#13)
#20. To: cranky (#11)
#21. To: nolu chan (#10)
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.
#22. To: Vicomte13 (#18)
#23. To: A K A Stone (#21)
#24. To: GrandIsland (#22)
#25. To: Vicomte13, nolu chan (#17)
so why not turn tourists into soldiers.
#26. To: buckeroo (#25)
#27. To: Vicomte13 (#26)
He won.
#28. To: Vicomte13, buckeroo, redleghunter (#26)
Supreme Court will strike down attacks on birth right citizen .
#29. To: tomder55 (#28)
But SCOTUS would most likely declare a repeal of that provision unconstitutional after they examine the "penumbras" and "emanations" of the Constitution.
#30. To: tomder55 (#28)
#31. To: All (#30)
#32. To: misterwhite (#13)
Wiki is your friend:
The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United Slates? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is, what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them.
#33. To: Vicomte13 (#16)
I don't remember Taney's exact words, but I recall a decision he wrote in which the court ordered something or other, and he knew that it would be ignored, so he wrote something bitter words along the lines of 'but I understand that the writ of this court no longer runs in this land'.
Yet, under these circumstances, a military officer, stationed in Pennsylvania, without giving any information to the district attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the district of Maryland ; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if indeed he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without a hearing, even before himself, to close custody, in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.
#34. To: buckeroo, Vicomte13 (#25)
MADISON, WIS., August 12, 1862.
WAR DEPARTMENT,
#35. To: Vicomte13 (#16)
The 14th Amendment bestows birthright citizenship on anybody born in the USA who isn't a diplomat with immunity. That's the status of "jurisdiction" TODAY, and I don't think there is one justice on the Supreme Court that will go anywhere BUT there.
#36. To: misterwhite (#14)
Can we draft tourists into our military? Hey, they're subject to our jurisdiction while they're here, right?
#37. To: A K A Stone (#21)
It could have just said
#38. To: tomder55, Vicomte13, buckeroo, redleghunter (#28)
Their children were put under the anchor baby umbrella by the 1965 immigration act.
#39. To: nolu chan (#35)
If the act of entry is illegal and criminal, why doesn't the act de-legitimize and nullify the entire "transaction"? ---- Liberator
I absolutely concur. A child born to two illegal aliens awaiting deportation in a detention center is a natural born citizen. The child is born in the United States and does not enjoy immunity from U.S. jurisdiction.
What could be done, and what I understand Trump to be alluding to with a nuanced statement, is that the parents could be deported. The U.S. citizen child could not be deported, but they could take the child with them, keeping the family together. Or not. Their choice.
The 14th Amdt. establishes citizenship for the child. It does not grant anchor status for the parents. ---- nolu chan
#40. To: nolu chan (#36)
"Tourists are under U.S. jurisdiction while in the U.S. Drafting of alien tourists would be a major violation of international law."
You're not behind a plow.
You'll never get rich
By diggin’ a ditch.
You're in the Army now.
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