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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: 19986
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.
So why was the Indian Citizenship Act in 1924 necessary? Didn't the idiotic Congress in 1924 know American Indians were already full citizens because of the 14th Amendment?
Didn't the idiotic Congress in 1924 know American Indians were already full citizens because of the 14th Amendment? Because Indians were not taxed, and lived under their tribal governments, subject to their tribal laws, and were not, when on the reservations, subject to the jurisdiction of the United States. Born on American soil under the jurisdiction of the United States = citizen. Born of foreign diplomats with diplomatic immunity = not under US jurisdiction = not citizen. Born on tribal land governed by Indian law, as an Indian neither taxed nor counted as part of the census = traditionally not under US jurisdiction, but by 1924, with the frontier long closed and the American government in fact exercising rulership and jurisdiction over the tribes, the Indians WERE in fect, by then, under US jurisdiction, and therefore properly considered citizens. When illegal aliens come to the US, do they have immunity from US laws like diplomats do? No. They are under US jurisdiction - they can be hauled before US courts. Are they like the Indians of the 1860s, that still lived wild under their own governments, untaxed, uncounted, and not able to be hauled into US courts to have US law enforced against them? No. They are under US jurisdiction. Therefore, the children born here are citizens. With the Indians, the latter half of the 19th Century and early part of the 20th saw the subjugation and domestication of the last Indians. They had settled down into a shabby dependency on the US, were in government schools, governed by US laws, and it was sought to integrate them into society. They were no longer "Indians not taxed, and not counted in the census". They were no longer REALLY independent, or REALLY living outside of US jurisdiction. So the states with large Indian populations wanted them counted, for federal patronage reasons. Hence the law change. That doesn't apply to the Mexicans. The Supremes will probably all look at the 14th and read it, and what it means is pretty obvious to the legally trained mind. It's why there are such wild and rather desperate efforts to pull in really obscure cases and circumstances to try to nullify the obvious. "Jurisdiction" means "subject to the courts of". Illegal aliens are subject to US laws and courts, and if born here, they're citizens. It's what the 14th Amendment SAYS, in plain language. Originalists can look at the intent too, and it's not helpful for those who want to evade the words. There were plenty of whites who wanted nothing better than to claim that blacks, being born of former slaves, were not citizens unless their grandfathers had been - extending the time period before which blacks could vote. It was always invidious, and the civil rights movement struck that stuff down using the 14th Amendment. All of that same jurisprudence and judicial habit of mind, and prejudice, will be there. I can't look at a single Justice on the Supreme Court and see any of them not upholding what I'm saying here. The Democrats won't budge on birthright citizenship. Given knowledge of the history of the amendment, Thomas is unlikely to vitiate its protections. Alito isn't likely to. Kennedy will probably oppose it because of his politics. It's tough to see what is given to Scalia to work with here. Jurisdiction and birth are the two things the document says. He'd have to become a judicial activist in a very strange direction to not uphold birthright citizenship. It's going to take a Constitutional Amendment, and that's never going to happen. So, we're better off focusing on border control and economic measures, because even Trump is not going to be able to erase birth right citizenship.
#11. To: Vicomte13 (#5)
If you say so.
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#3. To: Vicomte13 (#2)
I could be wrong, of course, but this has been the standard juridical understanding of the 14th Amendment for a century and a half, so I can't see the Supreme Court deciding otherwise.
#5. To: cranky (#3)
So why was the Indian Citizenship Act in 1924 necessary?
Replies to Comment # 5. Therefore, the children born here are citizens.
End Trace Mode for Comment # 5.
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