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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: 20009
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 # 76.
#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.
"No. Senator Lyman Trumbull did not say that. That is ad lib crap." Wiki is your friend: "1st Session, 39th Congress, pt. 4, p. 2893. Senate Judiciary Committee Chairman Lyman Trumbull, participating in the debate, stated the following: "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means."
The opinions of the 1860s are not the law. The law is what it says, and what the Supreme Court has said it means. Jurisidiction is a well-worn phrase. In 2015, it means subject to the US courts. All illegals are. Therefore, their babies born here are citizens, per the 14th Amendment. THe Supreme Court will decide that 9-0, You have to pick your battlefield, and this one will be Azincourt for those who want to control the Border. This fight cannot be won. Others can. Focus on those.
The law is what it means. You can't change the definition of some word willy- nilly to mean something totally different. When the 14th amendment was written and passed, it meant owing allegiance to no other country.
When the 14th amendment was written and passed, it meant owing allegiance to no other country. That's right, the law is what it means. There are 2 parts of the 14th Amendment: soil, and jurisdiction. Soil is obvious. Now, you might think that "jurisdiction" means whatever it meant in 1868, but it doesn't. It means what it means to the courts today. "Jurisdiction" jurisprudence has developed over the past two centuries to mean, today, very clearly, the power of the court to hear the subject matter of the case, and to enforce its judgments upon the parties. That's what "jurisdiction" means in every court in America that would rule on the 14th Amendment. Concepts of jurisdiction have changed since 1868, and they affect everything. No court in America is going to say that it doesn't have jurisdiction over illegal aliens, because if that were so, it would mean that they could not be tried, at all, for anything, before American courts. If illegal aliens raped, murdered and stole their way in a swathe across seven states, and then were captured, the lack of jurisdiction would mean that they could not be tried for anything - no court had the power to judge them. They could merely be deported. That's not the reality: courts have jurisdiction and do routinely imprison and punish illegals, just like everybody else. They can because they have jurisdiction. To ask the courts to say that the illegals are not subject to US jurisdiction, and yet could be tried in courts of the US, would be asking the Justices and judges to redefine the word "jurisdiction". Now, we've just redefined the word "marriage" in America, so I suppose we can redefine "jurisdiction". But the courts would have to do that, and they are not going to. Jurisdiction is the source of their power. They're not going to limit it. The only way to change the 14th Amendment is through a constitutional amendment. The illegal immigration battle has to be fought on a different battlefield. There is no victory on this one. And be careful what you ask for, because if "jurisdiction" means that they can try you without authority, then "the right to keep and bear arms" means that you can't have guns, and up is down, and evil is good.
In the context of the 14th amendment, "subject to the jurisdiction thereof" means "owing allegiance to no other country". Always had. Always will. Now if you want to take the word "jurisdiction" out of context and define it as the power of the court to hear the subject matter of the case and to enforce its judgments upon the parties, fine. I agree with that definition. But, in context, it means something different.
Now if you want to take the word "jurisdiction" out of context and define it as the power of the court to hear the subject matter of the case and to enforce its judgments upon the parties, fine. I agree with that definition. But, in context, it means something different. Says you. But all 9 Justices of the Supreme Court, and all of the Circuit Court judges in the land, and 98.5% of the Federal court justices, and the lion's share of licensed lawyers will all say the jurisdiction in the 14th Amendment means what jurisdiction means everywhere else under the Constitution. It's not a political question. It's not even a question, really. Jurisdiction is a defined word in the legal profession. It means something specific. What that is has been defined by the Supreme Court over two centuries of jurisprudence. Everybody who went through law school has spent a month on the subject of jurisdiction, and had to very painfully grind through the process by which it got to where it is. This word is not a football. Sure, it would make things very easy for a certain political cause if the word jurisdiction, for the purposes of the 14th Amendment, were fixed to a specific moment, indeed a specific sentence in legislative history. But the truth is that that is not how law works, it's not how any court works. The legal profession doesn't accept that argument. There are always some lawyer who will take a fee to argue the point, and argue they may. And they may even argue it before some politicized or crazed or senile judge somewhere who will agree with them. But no appellate court in this land will accept that limitation on the word that you believe. And neither will the Supreme Court. Take this case before the Supremes, and it goes down 9-0. Choose to fight on this battlefield with this weapon, and you're charging into the arrows at Azincourt, charging into the rifles at Gettysburg, charging into the guns at Balaclava, charging into the panzers with horses, and flying out in your Libyan fighter against the F-14s of the 6th Fleet. This battle, on this ground, cannot be won. It's not a debatable point. Saying it's debatable won't make it debatable. It's like arguing that Gaelic is the official language of the USA. No, it isn't. And it won't be. Jurisdiction, for the purposes of the 14th amendment, does not mean what it meant in the legislative history of 1868. It means the same thing that it means in all of the rest of American constitutional jurisprudence, nothing else. There is not an appellate court in America that will say anything different. The cavalry can charge into the arrows, guns and panzers all they like, but the outcome is always the same. If you want to defeat longbowmen, cannons and tanks with cavalry, you had better take them in flank (or, with tanks, get off the high horses and go on foot). The frontal assault will always fail. Jurisdiction means the authority of the court to hear the subject matter of the case and to enforce its judgment against the parties of the case. That's all that it means now in American law. 1868 is gone with the wind, and there is no special definition of jurisdiction for the 14th Amendment. Original intent is a theory. It's not the law. It's not going to ever be the law either, when it comes to a fundamental concept like jurisdiction. Even Justices Thomas and Scalia will tell you that.
No they won't. They're both Originalists who believe the Constitution's meaning is fixed as of the time of enactment.
We'll see soon enough. Trump is headed towards a victory, and when he wins, he's going to press ahead into court with your very argument. I predict 9-0. If you're right about Scalia and Thomas, it will be 7-2.
Sounds like, regardless what the USC decides, you are in favor of the illegal little bastards being the United States problem and financial burden?
I am in favor of bringing home the US military and placing it on the border to stop the illegal flow. And I am in favor of punitive fines and taxation of businesses that hire illegals, so that nobody dares to do it. Then the illegals will self-deport, and the coyotes will be blocked, and we won't have to start pretending that words don't mean what they mean so that we can get some narrow desired result. I am favor of honest, direct efforts using legal means that are already available, to target illegal immigration at the crucial choke points: the border (and because I want to bring the forces home and disband many of them, the Border becomes an excuse to keep a larger military for awhile), and employment. Tracking illegals is hard. But destroying businesses that employ them is easy. Also, illegals are not entitled to social services. They're illegal. Obviously you have to provide food and medical care, at the deportation camps. I want to pour the foreign aid we give to Israel and elsewhere into American agriculture (and use prisoners and unemployed Americans, not migrant workers, to pick the crops) and industry and infrastructure - and just cut it to reduce the deficit. And then any real foreign aid we do give should be aimed at infrastructure projects in Mexico that will benefit the USA. Notably, California needs water. The Baja is long and empty and hot with sunlight. There are desalinators in Israel that supply the whole country. Build desalination right there in Mexico, and build the pipelines to pump the water to Socal. Gives employment to Mexico, and gets water to socal. Certainly I'm in favor of heavy oil infrastructure investment in Mexico, with pipelines northwards. I'm in favor of solar power generation in the Sonora - get Mexico on our grid. I'm in favor of heavy investment in Mexican agriculture. There are all sorts of tropical crops we love that grow there and not here, so develop it there, as a nearly domestic resource. I'm in favor of helping Mexico use what Mexico has that's special, and that we don't have, to symbiotically develop both places - that employs Mexicans, makes Mexico richer, so people stay there, AND it relieves our burden and increases our security. Then we don't NEED to keep those troops on that border. And I'm in favor of decriminalizing all drugs and going to a treatment and education system, That will, in one fell swoop, destroy organized crime in Latin America and make it safer. All of the money we pour into Eurasian and African arms and intelligence efforts, I'd see used to bring our deficit to zero, then bring our debt to zero, and to develop, intelligently those areas of the world to which we can drive directly with cars: Mexico, Central and South America. This is our hemisphere, and we should secure and develop IT, not Europe, not the Middle East, not Asia. But no, I am not in favor of taking American babies born on American soil and treating them as criminals. I am in favor of developing the economy so that the ones that already are, are not a financial burden, and so that the flow stops.
Notably, California needs water. I see your in favor of a lot of shit I didn't ask you about. So I'll assume you are in favor of adopting the little 3rd world bastards of two illegals. I don't give a rats ass what Kookifornia needs. That filthy smog filled, over taxed libtarded cesspool can break off at the fault line and sink into the ocean.
"---- Last year, the University of Maryland’s Arie Kruglanski detailed evidence that psychology, not theology, is at the root of extremist ideologies. For extremists, Kruglanski wrote in the online journal E-International Relations, the world is one of “good versus evil, saints versus sinners, order versus chaos; a pure universe in black and white admitting no shades of gray. ---"
#78. To: tpaine (#76)
Don't try and drag me in your libtarded mess. You are the Kookifornian. I've told you exactly what you could do to avoid the over regulated and high tax madness of big big brother.... MOVE. But you ignore my help... so don't ask for any other kind. Trying to equate my ideology as the very part of your problem is absurd. You and your Kookifornia peers are the problem... you can stay and be part of the problem, or leave and be part of the solution.
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.
#13. To: nolu chan, A K A Stone (#10)
"Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country."
#19. To: misterwhite (#13)
#46. To: Vicomte13 (#19)
"The law is what it says"
#52. To: misterwhite (#46)
The law is what it means. You can't change the definition of some word willy- nilly to mean something totally different.
#54. To: Vicomte13 (#52)
"Now, you might think that "jurisdiction" means whatever it meant in 1868, but it doesn't. It means what it means to the courts today."
#55. To: misterwhite (#54)
In the context of the 14th amendment, "subject to the jurisdiction thereof" means "owing allegiance to no other country". Always had. Always will.
#56. To: Vicomte13 (#55)
"Even Justices Thomas and Scalia will tell you that."
#57. To: misterwhite (#56)
No they won't. They're both Originalists who believe the Constitution's meaning is fixed as of the time of enactment.
#58. To: Vicomte13 (#57)
#59. To: GrandIsland (#58)
#71. To: Vicomte13 (#59)
I'm in favor
#76. To: GrandIsland (#71)
I don't give a rats ass what Kookifornia needs. That filthy smog filled, over taxed libtarded cesspool can break off at the fault line and sink into the ocean
Replies to Comment # 76.
End Trace Mode for Comment # 76.
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