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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: 17581
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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#2. To: cranky (#0)
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.
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?
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.
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.
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.
Correct. Trump said the government was not going to break up families. Illegal aliens will be allowed to take their children with them if they wish. I might add that he said nothing about revoking anyone's existing birthright citizenship.
That would be the logical course of action... i'm sure the founding fathers never intended to keep the evidence from two illegal acts.
I think it's possible to make a strong case that the children born here of illegal aliens are not U.S. citizens at birth. Congress needs only to define, "and subject to the jurisdiction thereof" as "owing allegiance to no other country". This, by the way, is not breaking any new ground. That said, I doubt they will be able make that definition retroactive.
That definition does not comport with the constitutional interpretation given by SCOTUS. An act of legislation cannot conflict with a constitutional interpretation of the Constitution. The child must be subject to the jurisdiction of the United States, i.e., subject to its laws and courts. The allegiance (a term not in 14A citizenship) cited by Trumbull refers to the term as used in English common law citizenship, as brought into this country. Acquired allegiance, is that binding a naturalized citizen. Local or actual allegiance, is that measure of obedience due from a subject of one government to another government, within whose territory he is temporarily resident. From this are excepted foreign sovereigns and their representatives, naval and armed forces when permitted to remain in or pass through the country or its waters. Black's Law Dictionary, 6th Ed.
Please provide a link to the U.S. Supreme Court defining "and subject to the jurisdiction thereof" and how that definition applies to illegal alien parents. ----------------------------------------- "[O]ne rule that Congress should rethink ... is awarding citizenship to everyone born in the United States ... including the children of illegal immigrants whose sole motive in immigrating was to confer U.S. citizenship on their as yet unborn children.... 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.... A constitutional amendment may be required to change the rule ... but I doubt it.... Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.... Our [judges'] hands, however, are tied. We cannot amend the statutory provisions on citizenship and asylum."
I have provided argument from the brief of the losing side, now I present statements from the opinion of the Court. From United States v. Wong Kim Ark, 169 U.S. 649 (1898) 169 U. S. at page 655 In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said: 124 U. S. 478. II. 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 -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King. This fundamental principle, with these qualifications or [169 U. S. 656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin's Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell's State Trials, 559, 607, 613-617, 639, 640, 659, 679. The English authorities ever since are to the like effect. Co.Lit. 8a, 128b, Lord Hale, in Hargrave's Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741. In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: "The question of naturalization and of allegiance is distinct from that of domicil." P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying: And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which [169 U. S. 657] he yet distinctly recognized that a man's political status, his country, patria, and his "nationality, that is, natural allegiance," "may depend on different laws in different countries." Pp. 457, 460. He evidently used the word "citizen" not as equivalent to "subject," but rather to "inhabitant," and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects. Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said: Cockburn on Nationality, 7. Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics: The exceptions afterwards mentioned by Mr. Dicey are only these two: [169 U. S. 658] "2. Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien." And he adds: Dicey Conflict of Laws, pp. 173-177, 741. It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born. III. 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. In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying: [169 U. S. 659] 6 U. S. 2 Cranch 64, 6 U. S. 119. In Inglis v. Sailors' Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said: 3 Pet. 28 U. S. 120. Mr. Justice Johnson said: "He was entitled to inherit as a citizen born of the State of New York." 3 Pet. 28 U. S. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin's Case, Blackstone's Commentaries, and Doe v. Jones, above cited, and saying: 169 U. S. 660 3 Pet. 28 U. S. 155. "The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens." 3 Pet. 28 U. S. 156. "Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth." 3 Pet. 28 U. S. 164. In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby. It was of such a case that Mr. Justice Story, delivering the opinion of the court, said: 3 Pet. 28 U. S. 248. This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 28 U. S. 245) to the contemporaneous opinions in Inglis v. Sailors' Snug Harbor, [169 U. S. 661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 28 U. S. 162) that "each government had a right to decide for itself who should be admitted or deemed citizens," and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, "there are certain principles which have been generally recognized by tribunals administering public law" [adding, in later editions "or the law of nations"] "as of unquestionable authority," and stated, as the first of those principles, "Persons who are born in a country are generally deemed citizens and subjects of that country." Story, Conflict of Laws, § 48. The English statute of 11 & 12 Will. III (1700). c. 6, entitled enacted that "all and every person or persons, being the King's natural-born subject or subjects, within any of the King's realms or dominions," might and should thereafter lawfully inherit and make their titles by descent to any lands title should be made or derived, had been or should be "born out of the King's allegiance, and out of is Majesty's realms and dominions," as fully and effectually, as if such parents or ancestors "had been naturalized or natural-born subject or subjects within the King's dominions." 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called "natural-born subjects." As that statute included persons born "within any of the King's realms or dominions," it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were "native-born citizens of the [169 U. S. 662] United States," and, without such assumption, the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was 9 Wheat. 22 U. S. 356. Again, in Levy v. McCartee (1832), 6 Pet. 102, 31 U. S. 112, 31 U. S. 113, 31 U. S. 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that, and saying that such a child "was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354." In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said: 19 How. 60 U. S. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges. In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said: [169 U. S. 663] 1 Abbott (U.S.) 28, 40, 41. The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was "to be governed altogether by the principles of the common law," and that it was established, with few exceptions, Garder v. Ward (1805), 2 Mass. 244, note. And again: Kilham v. Ward (1806), 2 Mass. 236, 265. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen's Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) "clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due." Isaacson v. Durant, 17 Q.B.D. 54, 65. The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said: 169 U. S. 664 State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26. 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 fifty 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. Clark, (1844) 1 Sandf.Ch. 583. 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 Opinions, 373, and by Attorney General Bates in 1862, 10 Opinions, 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: [169 U. S. 665] 2 Kent Com. (6th ed.) 39, 42. And he elsewhere says: 2 Kent Com. 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: (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." P. 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. 666 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 and children born in a foreign country, of a French father who had not established his domicil 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." Pothier Trait des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 13; Prefet 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; Cockburn on Nationality, 13, 14; Hall's International 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. 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 1 Demolombe Cours de Code Napoleon (4th ed.) no. 146. The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect o 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, Conflict of Laws 41. 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. Cockburn on Nationality, 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. 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. Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport, and they have never been considered in either country as affecting the citizenship of persons born within its dominion. - - - - - - - - - - At 169 U.S. page 675: [169 U. S. 676] begins with the words, As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States. The Slaughterhouse Cases (1873), 16 Wall. 36, 83 U. S. 73; Strauder v. West Virginia (1879), 100 U. S. 303, 100 U. S. 306.; Ex parte Virginia (1879). 100 U. S. 339, 100 U. S. 35; Neal v. Delaware (1880), 103 U. S. 370, 103 U. S. 386; Elk v. Wilkins (1884), 112 U. S. 94, 112 U. S. 101. But the opening words, "All persons born," are general, not to say universal, restricted only by place and jurisdiction, and not by color or race -- as was clearly recognized in all the opinions delivered in The Slaughterhouse Cases, above cited. In those cases, the point adjudged was that a statute of Louisiana granting to a particular corporation the exclusive right for twenty-five years to have and maintain slaughterhouses within a certain district including the City of New Orleans, requiring all cattle intended for sale or slaughter in that district to be brought to the yards and slaughterhouses of the grantee, authorizing all butchers to slaughter their cattle there, and empowering the grantee to exact a reasonable fee for each animal slaughtered, was within the police powers of the State, and not in conflict with the Thirteenth Amendment of the Constitution as creating an involuntary servitude, nor with the Fourteenth Amendment as abridging the privileges or immunities of citizens of the United States, [169 U. S. 677] or as depriving persons of their liberty or property without due process of law, or as denying to them the equal protection of the laws. Mr. Justice Miller, delivering the opinion of the majority of the court, after observing that the Thirteenth, Fourteenth and Fifteenth Articles of Amendment of the Constitution were all addressed to the grievances of the negro race, and were designed to remedy them, continued as follows: 16 Wall. 83 U. S. 72. And, in treating of the first clause of the Fourteenth Amendment, he said: 16 Wall. 83 U. S. 73, 83 U. S. 74. Mr. Justice Field, in a dissenting opinion, in which Chief Justice Chase and Justices Swayne and Bradley concurred, said of the same clause: 16 Wall. [169 U. S. 678] 83 U. S. 95, 83 U. S. 111. Mr. Justice Bradley also said: 16 Wall. 83 U. S. 112. And Mr. Justice Swayne added: 16 Wall. 83 U. S. 128, 83 U. S. 129. - - - - - - - - - - 169 U. S. at page 682 The principles upon which each of those exceptions rests were long ago distinctly stated by this court. - - - - - - - - - - 169 U. S. at page 693 "independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger [169 U. S. 694] born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations." Ex.Doc. H.R. No. 10, 1st sess. 32d Congress, p. 4; 6 Webster's Works, 56; United States v. Carlisle, 16 Wall. 147, 83 U. S. 155; Calvin's Case, 7 Rep. 6a; Ellesmere on Postnati 63; 1 Hale P.C. 62; 4 Bl.Com. 92. To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States. VI. Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment, which declares and ordains that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are "subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States. Yick Wo v. Hopkins (1886), 118 U. S. 356; Law Ow Bew v. United States 144 U. S. 47, 144 U. S. 61, 144 U. S. 62; Fong Yue Ting v. United States (1893), 149 U. S. 698, 149 U. S. 724; Lem Moon Sing v. United States (1893), 158 U. S. 538, 158 U. S. 547; Wong Wing v. United States (1896), 163 U. S. 228, 163 U. S. 238. - - - - - - - - - - At 149 U. S. page 716. contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. - - - - - - - - -
Or a better way to put it ... "Every person born in the United States who is subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.
Suggest it to your congressman as an amendment. A child born without immunity from our laws is born subject to U.S. jurisdiction.
And by that you mean the child is subject to our laws, correct? I agree. Which is why I'm saying Congress can simpy write a law saying that birthright citizenship for illegals is no more. Meaning that child is not a citizen, according to the law. Now I doubt Congress will be able to make that law retroactive, but it will apply to new births.
Which is why I keep reminding you that Congress cannot amend the Constitution and can write no law that changes the Constitution. No matter how your law attempts to change the effect of the Constitution, it would be unconstitutional. The benefits of birthright citizenship inhere solely to the child. There is no law that makes the baby an anchor permitting the parents to stay in the United States.
They're not amending the constitution. They would be amending the Immigration and Nationality Act. Is the Immigration and Nationality Act unconstitutional? If not, then neither is an amendment to it.
Your logic is nonsense. The INA is not unconstitutional now. You want to amend it in a way that conflicts with the Constitutional. That is unconstitutional. For amending the Constitution, see Article 5, not Article 1.
Nope. Congress would merely define what is meant by "and subject to the jurisdiction thereof". And Congress has that power to do so.
U.S. Const., Sec 1: "The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Judicial branch interprets the Constitution, not the Congress. Legislation which conflicts with a SCOTUS interpretation of the Constitution is unconstitutional. The Court has defied the term. http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep457&id=246#246 U.S. Supreme Court PLYLER v. DOE, 457 U.S. 202 (1982) 457 U.S. 202 PLYLER, SUPERINTENDENT, TYLER INDEPENDENT SCHOOL DISTRICT, ET AL. v. DOE, GUARDIAN, ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 80-1538. Argued December 1, 1981 Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not “legally admitted” into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 210-230. [...]
Two different animals. One deals with citizenship of the United States, subject to the jurisdiction of the United States, and the other deals with the equal protection of all persons residing in (within the jurisdiction of) a state. That's the problem when you take the word "jurisdiction" a) out of context and b) attempt to define it in your own terms.
There are no replies to Comment # 115. End Trace Mode for Comment # 115.
Top • Page Up • Full Thread • Page Down • Bottom/LatestConstitution Doesn’t Mandate Birthright Citizenship
#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."
#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.
#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.
#16. To: nolu chan (#10)
#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.
#41. To: nolu chan (#35)
"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."
#42. To: misterwhite (#41)
Correct. Trump said the government was not going to break up families. Illegal aliens will be allowed to take their children
#43. To: GrandIsland (#42)
"i'm sure the founding fathers never intended to keep the evidence from two illegal acts."
#67. To: misterwhite, GrandIsland (#43)
I think it's possible to make a strong case that the children born here of illegal aliens are not U.S. citizens at birth. Congress needs only to define, "and subject to the jurisdiction thereof" as "owing allegiance to no other country". This, by the way, is not breaking any new ground.
Natural allegiance. In English law, that kind of allegiance which is due from all men born within the king's dominions, immediately upon their birth, which is intrinsic and perpetual, and cannot be divested by any act of their own. In American law, the allegiance due from citizens of the United States to their native country, and which cannot be renounced without the permission of government, to be declared by law.
#77. To: nolu chan (#67)
"That definition does not comport with the constitutional interpretation given by SCOTUS."
-- Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003)
#90. To: misterwhite (#77)
Please provide a link to the U.S. Supreme Court defining "and subject to the jurisdiction thereof" and how that definition applies to illegal alien parents.
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 88 U. S. 167.
"There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."
"The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status."
"the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy,
must depend,"
"By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality."
"'British subject' means any person who owes permanent allegiance to the Crown. 'Permanent' allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes ‘temporary' allegiance to the Crown. 'Natural-born British subject' means a British subject who has become a British subject at the moment of his birth. 'Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality."
"1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such
person's birth is in hostile occupation, is an alien."
"The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, 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, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown."
"Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of
that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide."
"It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects."
"Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be
subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince."
"The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations."
"An act to enable His Majesty's natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens,"
"from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom"
"whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law if the ancestor were a natural-born subject."
"if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,"
"The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth."
"All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion
that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."
"that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term 'citizenship.'"
"The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born."
"Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign
State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term 'citizen,' as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a 'subject of the king' is now 'a citizen of the State.'"
"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
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."
"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."
"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 o the United States are, with the exceptions before mentioned,"
P. 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 Amer.Law Reg.193, 203, 204.
"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 domicil;"
"appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe -- de la vielle regle francaise, ou plutot meme de la vielle regle europienne -- according to which nationality had always been, in former times, determined by the place of birth."
The first section of the Fourteenth Amendment of the Constitution
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of he State wherein they reside."
"We do not say that no one else but the negro can share in this protection. Both the language and spirit of these Articles are to have their fair and just weight in any question of construction. Undoubtedly, while negro slavery alone was in the mind of the Congress which proposed the Thirteenth Article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this Amendment may safely be trusted to make it void. And so if other rights are assailed by the States, which properly and necessarily fall within the protection of these Articles, that protection will apply, though the party interested may not be of African descent."
"The distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union."
"It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry."
"The question is now settled by the Fourteenth Amendment itself, that citizenship of the United States is the primary citizenship in this country, and that state citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen's place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons."
"The language employed is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. By the language 'citizens of the United States' was meant all such citizens, and by 'any person' was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes and conditions of men."
The real object of the Fourteenth Amendment of the Constitution, 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, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 28 U. S. 155; 2 Kent Com. 39, 42.
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "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." It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides -- seeing that, as said by Mr. Webster, when Secretary of State, in his Report to the President on Thrasher's Case in 1851, and since repeated by this court,
The Fourteenth Amendment of the Constitution, in the declaration that
"all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,"
#93. To: nolu chan (#90)
"Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization."
#97. To: misterwhite (#93)
Or a better way to put it ... "Every person born in the United States who is subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.
#101. To: nolu chan (#97)
"A child born without immunity from our laws is born subject to U.S. jurisdiction."
#103. To: misterwhite (#101)
Which is why I'm saying Congress can simpy write a law saying that birthright citizenship for illegals is no more. Meaning that child is not a citizen, according to the law.
#106. To: nolu chan (#103)
"Which is why I keep reminding you that Congress cannot amend the Constitution and can write no law that changes the Constitution."
#109. To: misterwhite (#106)
Is the Immigration and Nationality Act unconstitutional? If not, then neither is an amendment to it.
#113. To: nolu chan (#109)
"You want to amend it in a way that conflicts with the Constitutional."
#114. To: misterwhite (#113)
Nope. Congress would merely define what is meant by "and subject to the jurisdiction thereof". And Congress has that power to do so.
Decided June 15, 1982 (a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” Whatever his status under the immigration laws, an alien is a “person” in any ordinary sense of that term. This Court’s prior cases recognizing that illegal aliens are “persons” protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase “within its jurisdiction,” cannot be distinguished on the asserted ground that persons who have entered the country illegally are not “within the jurisdiction” of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase “within its jurisdiction” confirms the understanding that the Fourteenth Amendment’s protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. Pp. 210-216.
#115. To: nolu chan (#114)
Replies to Comment # 115.
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