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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: 17481
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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Begin Trace Mode for Comment # 43.
#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.
#47. To: misterwhite (#43)
I doubt it as well because of special interests and platform ideologies. Common sense however dictates that two illegals shitbags couldn't produce a legal spawn... and why would this country think it's the wisest move to keep the child and separate it from the shitbag parents? Deport them all.
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.
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."
Replies to Comment # 43. That said, I doubt they will be able make that definition retroactive.
#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.
End Trace Mode for Comment # 43.
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