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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: 19965
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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#68. To: tpaine (#66)
And why is Steve on hiatus, -- is he ill? I don't know roscoe on FR. I have not been on FR in over 10 years and my time was in the Smoky Back Room debating Civil War era legal and political issues. I was nolu chan. I only know that on the S&L site, Steve says he is on hiatus effective 15 August. I do not know Steve personally. I joined CP shortly after Dung Beetle left. At first, management thought I was Dung Beetle sneaking back on. I did not then know who Dung Beetle was.
No 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 ----- nolu chan Agreed, an act of legislation cannot conflict with our Constitution. -- Thus, either the interpretation, -- or the law, -- must be changed. IMHO, this issue can be resolved by the three branches without passing an amendment. Opinions?
Looks like we all agree on this.
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. I'm the infidel... Allah warned you about. كافر المسلح
-- Thus, either the interpretation, -- or the law, -- must be changed. IMHO, this issue can be resolved by the three branches without passing an amendment. Opinions? The Executive and the Legislature cannot change a SCOTUS constitutional opinion. SCOTUS cannot just do it on its own, but it must be presented with a case within its jurisdiction upon which it can revise its opinion in the new case. This is unlikely on birthright citizenship. To change constitutional law requires an amendment. That might get done but it takes time and meeting all the requirements is uncertain. Such constitutional change is only required to end birthright citizenship for babies born to illegal aliens. It is not needed to limit prosecutorial discretion, end designation as anchor babies, or eliminate special treatment for the parents, or to deport the parents. The only
We are not "adopting: little 3rd world bastards of two illegals". The US Constitution says that children born here are citizens, natural born. So that's what they are. I am opposed to twisting the language around to get results we want. I think that is corrupt. I care what California needs, because California is part of my country, and it has some serious problems that I would like to see addressed in a way that is positive for California. And I understand that we do not live in a vacuum, so if there are things that can be done for a part of my country that will have the knock on effect of employing people in Mexico so they don't feel driven to come here, then that is good for my country in general. I don't sit around hating people because they are from "the Third World" - they are my fellow Christians - and I don't hate different pieces and people who are part of my own country. I want to see us all do well, from Maine to Washington and on out to Anchorage and Honolulu, and from Minot to Brownsville. I also want to see the Mexicans do well, because when the neighbors are troubled, that spills over to affect us. No man is an island, and no country is either Boiling with rage and hatred at your fellow man will make you older, faster, and will never fix a damned thing. I am about fixing things. And you don't fix things by manipulating language to say that black is white and down is up, just because that gets you to the temporary result you want. The 14th Amendment is clear, to me, and to most people, and to the Courts too. It's not going to be changing. I don't think it should change. I certainly don't think that we should start lying about the language in order to force through some sort of cheap result. That's what lying politicians do, and I despise them in both parties. The better answer is to accept the law, and to work with that reality. And while you might be ready to cut off pieces of our country and tell them to go to hell and sink, I'm not.
Agreed, an act of legislation cannot conflict with our Constitution. -- Thus, either the interpretation, -- or the law, -- must be changed. IMHO, this issue can be resolved by the three branches without passing an amendment. Opinions? But they can challenge such an opinion, forcing scotus to reconsider. It's not unlikely if Trump is elected, or if congress is pressured to re-write the law.
2) I care what California needs, because California is part of my country, and it has some serious proble 3) I don't sit around hating people because they are from "the Third World" - they are my fellow Christians - and I don't hate different pieces and people who are part of my own country. 1) You just don't like hearing what it is... you live by politically correct softened language. An illegal alien isn't just an undocumented worker... He's a criminal piece of shit, shitting on my freedoms and liberties because his country sucks. Not my problem. 2) I very vocally oppose certain libtard ideals... Kookifornia has run its state the direct opposite of my political beliefs... thus I could give a shit what happens to that state. I've never asked for help from ANYONE I didn't listen to in the past. If my father suggested I not buy a car... and I did, and the car broke down... I would never ask him for the money to fix it. I have pride... and that's how we learn. Kookifornians WILL LEARN AFTER THEY COLLAPSE. The sooner the better. 3) Your sympathy and empathy ARE YOUR WEAKNESS... and it's that very weakness that's allowed everything in our present day society to be dysfunctional and fucked up. Every crappy thing we have today, every deficit, every program, worthless government agency... was justified by sympathy for someone or something. From high taxes to 30 million criminal invading bastards running around my country. I don't know what's worse, the Mexican government encouraging them to flee into our country, or people like you that are too weak to plug this leak. I'm the infidel... Allah warned you about. كافر المسلح
"---- 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. ---"
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."
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.
I'm the infidel... Allah warned you about. كافر المسلح
2) I very vocally oppose certain libtard ideals... Kookifornia has run its state the direct opposite of my political beliefs... thus I could give a shit what happens to that state. I've never asked for help from ANYONE I didn't listen to in the past. If my father suggested I not buy a car... and I did, and the car broke down... I would never ask him for the money to fix it. I have pride... and that's how we learn. Kookifornians WILL LEARN AFTER THEY COLLAPSE. The sooner the better. 3) Your sympathy and empathy ARE YOUR WEAKNESS... and it's that very weakness that's allowed everything in our present day society to be dysfunctional and fucked up. Every crappy thing we have today, every deficit, every program, worthless government agency... was justified by sympathy for someone or something. From high taxes to 30 million criminal invading bastards running around my country. I don't know what's worse, the Mexican government encouraging them to flee into our country, or people like you that are too weak to plug this leak. Rage, rage against the dying of your light! But your light is darkness.
Rage, rage against the dying of your light! But your light is darkness. I suggest you turn your light off... you can't afford your light bill... and I ain't helping you pay it. I'm the infidel... Allah warned you about. كافر المسلح
You will do exactly what the law says, whether you like it or not, or you will be beaten into submission, caged or killed. You hate aspects of our society. Rage away if it makes you feel better. But obey. And you WILL obey. THAT is certain. It's still legal to rage against what you perceive as the "injustice" of it all, and to hate everybody and everything that you don't agree with. Do so if it helps you cope. But pay your taxes and obey the laws, that support those things you hate. Or die under the baton and the gun.
Your own words have made the mess you imagine yourself in..
I'm not in any mess. I currently: Live in a state with little to no firearm laws. I can carry open or conceal and I can own a 5,000 round drum mag. Relatively low taxes. Hardly and debt 750 credit score Almost paid for house and 2013 vehicle Zero criminal history No absurd residential restrictions No earthquakes, hurricanes or wildfires. Plenty of water Zero smog A HORDE OF AMMO AND AMMO SUPPLIES A gun vault with over 45 guns Successful children with professional jobs and no criminal histories No LE kicking my door, no road blocks or thug like LE experiences. In fact, no LE contact... PERIOD. So... It's your world that's fucked up. You helped fuck it up... you fix it. Stay and be part of the problem... or move and be the solution. Either way, I don't feel sorry for you. I'm the infidel... Allah warned you about. كافر المسلح
Your own words have made the mess you imagine yourself in..
Live in a state with little to no firearm laws. I can carry open or conceal and I can own a 5,000 round drum mag. Relatively low taxes. Hardly and debt 750 credit score Almost paid for house and 2013 vehicle Zero criminal history No absurd residential restrictions No earthquakes, hurricanes or wildfires. Plenty of water Zero smog A HORDE OF AMMO AND AMMO SUPPLIES A gun vault with over 45 guns Successful children with professional jobs and no criminal histories No LE kicking my door, no road blocks or thug like LE experiences. In fact, no LE contact... PERIOD. So... It's your world that's fucked up. You helped fuck it up... you fix it. Stay and be part of the problem... or move and be the solution. Either way, I don't feel sorry for you. You are one twitch of a blood vessel away from being a drooling, yowling, jerking child-man who cannot feed or wipe himself. We all are. The harsher and more judgmental you are of other people, the more likely God will teach you the lesson that all human independence is illusory, and that everything you have is just a gift that is lent to you for a time. You've got a hoard of ammo and supplies to defend against criminal enemies that don't apparently exist in the rural paradise in which you live. But no stockpile of weapons will protect you against God's choice to snap a blood vessel, or putrefy some cells, to teach you a fierce and horrible lesson in humility. As you measure out, so shall it be measured back to you. You are a second away from irretrievable disaster that you cannot control or avoid. The only way to make it less likely is by God's grace. But your attitude is that you don't need no steenkin' grace, nor help, ever, with anything. Unfortunately, that very approach is more likely to land you in diapers, dependent on others to spoon feed you, than not being so proud. Pride goeth before a fall.
I don't know who's worse, you or Deckard. You both fear monger for your agendas. lol I'm the infidel... Allah warned you about. كافر المسلح
Fear monger? What I am saying is the truth.
Deckard says the same thing. I'm the infidel... Allah warned you about. كافر المسلح
You appear to have some obsessive fixation with the parents when the subject is the child. Show me the restrictive phrase about illegal aliens in 14A of the Constitution and I will search the bound volumes looking for SCOTUS comment upon this part of the Constitution which is unknown to me. I will address your question about the Court defining "and subject to the jurisdiction thereof." They so in a manner applicable to all persons, citizen or alien. Unless there is some secret codicil declaring illegal aliens to be non-persons, it applies to them equally. First, there is argument presented to the Court so that you may see that your concerns about jurisdiction were not overlooked. I just happen to possess at complete Record of Trial Transcript in the case of United States v. Wong Kim Ark. For understanding of the arguments that were presented to the Court, I present an excerpt from the U.S. Government brief. Pages 21-23 Wong Kim Ark, US Supreme Court, BRIEF on Behalf of the Appellant (USA) by George D Collins, Of Counsel for Appellant, and also signed by Holmes Conrad, Solicitor General. Allegiance is the mutual bond of obligation betwixt the master and the servant. Item, the mutual bond and obligation betwixt the King and his subjects, whereby we are called his lieges, because we are bound and obliged to obey nnd serve him. And he is called our liege King, because he should maintain and defend us. (Calvin's Case.) As the ligitures or strings do knit together the joints of the body, so does allegiance join together the sovereign and all his subjects, quasi uno ligamine. (Calvin's Case.) The legal significance of the expression "natural allegiance" appears from acts of Parliament, wherein the King is termed natural liege lord and his people natural liege subjects. (Calvin's Case.) These quotations clearly indicate the nature of allegiance at common law, and prove it to be conclusively [p. 22] and distinctly monarchical and feudal, and confined to the King and having no reference whatever to the nation. What an absurdity it would be to speak of the people of the United States as "liege subjects." And yet it would be quite proper to do so if there is such a thing as being born within the allegiance of the United States. The entire theory and fact of allegiance are essentially regal and utterly incompatible with a republican form of government. Allegiance was judicially described in Countess of Shrewsbury's Case (12 Rep., 97) as being "the best flower in the King's imperial garland." How, then, could it ever be supposed applicable to the sovereignty of a republic? There certainly is no such thing as birth within the allegiance of the United States, but there is such thing as birth within the jurisdiction of the United States. "Subject to the jurisdiction thereof" is the language of the Constitution, and it is the most significant provision of the definition of citizenship there contained. Who are subject to the jurisdiction of the United States? Manifestly not those who are subject to the jurisdiction of any other nation, or who owe allegiance to any foreign prince, potentate, state, or sovereignty. Such is the contemporaneous exposition of the Constitution's definition by the very Congress that framed it, as is evidenced by what is now section 1902 of the Revised Statutes of the United States. It is there enacted: "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States." Clearly, then, it was never intended [p. 23] that children born in the United States of alien parents should be considered citizens. Such children at the moment of birth would be subject to a "foreign power," to wit, the country of the parent, for it is a principle of international law, and recognized by the United States (sec. 1993, Rev. Stat. U. S.), that the children born abroad of citizens or subjects are citizens or subjects of the country of the parent. So, in respect to this case, it is the law of the Chinese Empire that the children of subjects when born abroad are subjects of the Emperor. Therefore, when Wong Kim Ark was born in San Francisco of Chinese parents there domiciled he at the moment of birth became a subject of the Emperor of China, and for that reason could not have been born "subject to the jurisdiction" of the United States. True, it appears from the record that his parents were domiciled in this country; but they were aliens, nevertheless, and Chinese subjects. (Zeui Moon Sing, 158 U. S., 538, 547; Fong Yue Ting, 149 U. S., 724.) The fact of domicile, therefore, did not make them citizens or operate to naturalize them; nor could it, since naturalization can only be had under an act of Congress. "We are aware that PhillimoreAin the first volume of his work on International Law, Chap. XVIII, page 347, in speaking of persons, or rather aliens, domiciled in a country, says; "They are de facto though not de jure citizens of the country of their domicile;" but however true that may be of a monarchy, it has no application to the United States. We have no de facto citizens. With us, either a person is a citizen de jure or he is necessarily an alien. At page 34: - - - - -
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. - - - - - - - - -
Actually, just being present is not criminal. Deportation is handled as a civil matter. Perhaps they should pass a criminal statute to provide for a few years eating Sheriff Joe's bologna sandwiches followed by mandatory deportation for being undocumented or overstaying a visa.
If the subject was the child then we wouldn't care if the parents were diplomats, correct? Meaning the subject is not the child but the status of the parents. "Clearly, then, it was never intended [p. 23] that children born in the United States of alien parents should be considered citizens." You're making my case for me.
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.
Throwing shit against the wall to see what sticks, are you?
We care about the child's status. If the child has diplomatic immunity, it is not born subject to the jurisdiction of the U.S.
Nope. Just quoting some of what SCOTUS considered relevant in demolishing the failed arguments of the government which you present again more than a century after the demolition.
Suggest it to your congressman as an amendment. A child born without immunity from our laws is born subject to U.S. jurisdiction.
To put it a different way, if a child, or the parents, are NOT subject to US jurisdiction, then they are immune from being tried by US courts. It's as simple as that, really. If the court doesn't have jurisdiction over the person, then it cannot try that person for anything. If the "immaculate conception" birthers got their way on "jurisdiction", it is true that all those anchor babies would not be US citizens. It is also true that 11 million illegal aliens would have have diplomatic immunity; Bad trade. The courts are never going to rule that way, because it's ridiculous.
Just being present can be handled criminally, it's a federal misdemeanor. The government chooses to handle it civilly to avoid trial and incarceration. I'd like them deported the first time they are caught... and executed the second time. I'm the infidel... Allah warned you about. كافر المسلح
You cannot "handle criminally" OR civilly, somebody who has immunity. To handle somebody in the courts, the courts have to have jurisdiction. If the argument is that the courts do not have jurisdiction over illegals, that means that there's no court that can try them criminally or civilly. To stop the anchor baby phenomenon, people are proposing giving diplomatic immunity to 11 million illegal aliens. Because that is what it means to say that the US doesn't have jurisdiction over them. And that is precisely why the Supreme Court will reject this nonsense 9-0, and every appellate court will probably unanimously reject the argument also. It's just nuts. Deal with the aliens by putting forces at the border, and by crucifying American businesses that hire them, That will stop the flow, and stop the economic incentive that causes the flow, and the problem will go away without having to touch the Constitution. The easy shortcut of messing around with jurisdiction isn't easy at all, for people who know what the word means juridically - and that is every judge in America. The Right is going to charge into the arrows at Azincourt on this issue. Of course, Donald may bring the case anyway, and accept the defeat on it, to demonstrate that "He tried", like he said he would - and perhaps even to whip up animus to the Supreme Court in preparation for a confrontation on some other issue.
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.
I'm afraid you are wrong. Unlawful presence is not a crime. Improper entry (see below) is a misdemeanor, but if the successfully crosses the border without detection and is picked up later, there is not much possibility of proving the elements of the crime, even if you know it must have happened one way or another. Overstaying a visa is not a crime. It's crazy but it's true. http://www.us-immigrationvisa.com/topics/unlawful-presence Unlawful presence (ULP) is defined as presence after the expiration of the period of stay authorized by the Department of Homeland Security, or any presence without being admitted or paroled. WHAT TRIGGERS UNLAWFUL PRESENCE? An individual who is present in the U.S. without inspection accrues ULP from the date of the unlawful arrival, unless she is otherwise protected from the accrual of ULP. Similarly, an individual paroled into the U.S. will accumulate ULP once the parole is no longer in effect, unless she is otherwise protected from the accrual of ULP. Note that an individual who obtained permission to come into the U.S. by making a knowingly false claim to U.S. citizenship has not been inspected and admitted, and thus accrues ULP from the date of arrival. The authorized period of stay is normally either noted on the I-94, or created by statute or by USCIS policy. WHAT ARE THE CONSEQUENCES OF UNLAWFUL PRESENCE? 3-Year and 10-Year Bar Immigration and Naturalization Act (INA) section 212(a)(9)(B)(i)(I) makes inadmissible any alien who “was unlawfully present in the United States for a period of more than 180 days but less than 1 year . . . [who] again seeks admission within 3 years of the date of such alien’s departure or removal.” Also, INA section 212(a)(9)(B)(i)(II) makes inadmissible any alien who “has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s removal or departure.” Permanent Bar Under INA § 212(a)(9)(C)(i)(I), an individual who has been ULP in the U.S. for an aggregate period of more than one year and then enters, or attempts to enter, the U.S. without being admitted is permanently inadmissible. http://www.state.gov/documents/organization/87120.pdf (CT:VISA-2255; 02-18-2015) http://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter2-4.html In the late 1990s, Congress decided to punish foreign-born people who spend time in the United States unlawfully -- that is, without a visa, green card, or other official permission from the U.S. immigration authorities. Congress created a penalty that prevents people from coming or returning to the United States for three years or ten years, depending on how long they stayed unlawfully in the country. These are often referred to as the “time bars,” or the “three- and ten-year bars.” Although they are a big hurdle for many people, waivers (legal forgiveness) is available in certain situations. [...] Even lawyer-politicians like New Jersey Gov. Chris Christie have come under fire for getting it wrong; back when Christie was a federal prosecutor, his office had to clarify statements he made at a church forum that led to backlash, The Star-Ledger reported. The confusion lies in the legal difference between improper entry and unlawful presence. Here's what you need to know: Improper Entry Is a Crime To be clear, the most common crime associated with illegal immigration is likely improper entry. Under federal criminal law, it is misdemeanor for an alien (i.e., a non-citizen) to: Enter or attempt to enter the United States at any time or place other than designated by immigration officers; Elude examination or inspection by immigration officers; or Attempt to enter or obtain entry to the United States by willfully concealing, falsifying, or misrepresenting material facts. The punishment under this federal law is no more than six months of incarceration and up to $250 in civil penalties for each illegal entry. These acts of improper entry -- including the mythic "border jumping" -- are criminal acts associated with illegally immigrating to the United States. Like all other criminal charges in the United States, improper entry must be proven beyond a reasonable doubt in order to convict. Unlawful Presence Is Not a Crime Some may assume that all immigrants who are in the United States without legal status must have committed improper entry. This simply isn't the case. Many foreign nationals legally enter the country on a valid work or travel visa, but fail to exit before their visa expires for a variety of reasons. But mere unlawful presence in the country is not a crime. It is a violation of federal immigration law to remain in the country without legal authorization, but this violation is punishable by civil penalties, not criminal. Chief among these civil penalties is deportation or removal, where an unlawful resident may be detained and removed from the country. Unlawful presence can also have negative consequences for a resident who may seek to gain re-entry into the United States, or permanent residency. Both improper entry and unlawful presence should be avoided by any immigrant to the United States, but an illegal alien cannot be criminally charged or incarcerated simply for being undocumented. To learn more, check out FindLaw's section on Immigration Law.
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.
Bad trade. The courts are never going to rule that way, because it's ridiculous. That's right. Imagine a gang with millions of members, all of whom have immunity from the law. The post-war freedmen were certainly subject to the jurisdiction of the U.S., but did they owe complete and undivided allegiance to the United States? Maybe they were never made citizens at all, even if that was the explicitly stated purpose of 14A(1).
And this business of "owing allegiance" is a fiction anyway. It comes from the days of kings and queens, who haughtily demanded unquestioning obedience or loyalty from anybody who happened to be born in land they managed to steal. What does it mean to say that a captive Indian tribe "owes allegiance" to the United States. What it means is: "We have conquered you, and we say now that you're part of us, and that you must serve us, and that if you don't, you're a traitor and we can kill you." That is the sort of "allegiance" that can only be backed by continuous brute force. It's the sort of "allegiance" that conquered Europeans owed to the Third Reich and the conquered Chinese "owed" to the Japanese. It's the sort of allegiance that the conquered Southerners really HAD to the Union: no real allegiance, just something enforced by law and fear. The illegal aliens who come in have considerably better views of the country whose border they jumped than captured, conquered Confederates and Indians, who were told they "owed allegiance" to their conqueror. They owed nothing, but the outward display of submission was demanded. That's as far as "allegiance" goes with conquered, subject people. And when you're weak, they knife you in the back - and they have help from the rest of the world. And they're not wrong to do it in any sense than under your own laws, but your laws only run as far as you can enforce them. The problem with asserting authority by power is that if you lose power those whom you subjugated have the same right to murder YOU that you asserted to keep them in line. We are in a country which is headed towards a Spanish future not because of illegal immigration, but because of the sexual immorality of white people and a broken and unworkable economic system, both of which work together to crush out the birth rate and clear the table of future white people. Into that vacuum pour other people. In America's case, Hispanics; in Europe's case, Muslims. People today, sensing the loss of their power and culture, are lashing out to stop the change. The way to stop the change, though, is not to turn on the foreigners. It is to turn on our own economic system, which concentrates so much wealth at the top that there is not enough left for everybody else to be able to raise families with reasonable security. Turn on the economic system and redistribute wealth in a way that favors childbearing and employing natives and reinvesting money at home, and ilico presto, we won't have to worry about a Spanish future. Because people are stubborn about changing what they take to be a settled system, they turn on those whom they perceive as weak. But they can't get where they want based on the laws. So they want to mangle the laws. If you're going to mangle the laws and disregard the Constitution, then do it in a way that redistributes wealth and alienates 1% of the population, as opposed to doing it in a way that alienates a fifth of the population and the future majority. The Irish never forgot "No Irish Need Apply", and the blacks never forgot slavery, and the Indians haven't forgotten what happened to them…and our laws are a rabbit warren of tensions because of those memories. If we don't change the economic structure, we're going to have a Spanish future either way. It's going to be a markedly less happy Spanish future if we make the same error with the Hispanics that we made with the Blacks.
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.
"A child born to illegal aliens in the United States can initiate a chain of immigration when he reaches the age of 18 and can sponsor an overseas spouse and unmarried children of his own. When he turns 21, he can also sponsor his parents and any brothers and sisters."
That's great. 18 and 21 year old babies.
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Top • Page Up • Full Thread • Page Down • Bottom/LatestFess up, -- were you 'roscoe' on FR?
#69. To: nolu chan, Y'ALL (#67)
misterwhite, ---- 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.
#70. To: tpaine, nolu chan (#69)
#71. To: Vicomte13 (#59)
I'm in favor
#72. To: tpaine (#69)
Agreed, an act of legislation cannot conflict with our Constitution.
anchor babies that would remain would be those abandoned in the U.S. by their parents.
#73. To: GrandIsland (#71)
#74. To: nolu chan (#72)
The Executive and the Legislature cannot change a SCOTUS constitutional opinion.
SCOTUS cannot just do it on its own, but it must be presented with a case within its jurisdiction upon which it can revise its opinion in the new case. This is unlikely on birthright citizenship.
#75. To: Vicomte13 (#73)
(Edited)
1) I am opposed to twisting the language around to get results we want. I think that is corr
#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
#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)
#78. To: tpaine (#76)
#79. To: GrandIsland (#75)
1) You just don't like hearing what it is... you live by politically correct softened language. An illegal alien isn't just an undocumented worker... He's a criminal piece of shit, shitting on my freedoms and liberties because his country sucks. Not my problem.
#80. To: Vicomte13 (#79)
#81. To: GrandIsland (#80)
I suggest you turn your light off... you can't afford your light bill... and I ain't helping you pay it.
#82. To: GrandIsland (#78)
Don't try and drag me in your ------ mess.
#83. To: tpaine (#82)
(Edited)
Your own words have made the mess you imagine yourself in..
#84. To: GrandIsland (#83)
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
I'm not in any mess. I currently: Live in a state with little to no firearm laws. I can carry open or conceal and I can own a 5,000 round drum mag. Relatively low taxes. Hardly and debt 750 credit score Almost paid for house and 2013 vehicle Zero criminal history No absurd residential restrictions No earthquakes, hurricanes or wildfires. Plenty of water Zero smog A HORDE OF AMMO AND AMMO SUPPLIES A gun vault with over 45 guns Successful children with professional jobs and no criminal histories No LE kicking my door, no road blocks or thug like LE experiences. In fact, no LE contact... PERIOD.
So.. It's your world that's fucked up. You helped fuck it up... you fix it.
The mess you're in is mental, judged by your own ranting words and imaginative "kookifornia" remarks. Seek help...
#85. To: GrandIsland (#83)
I'm not in any mess. I currently:
#86. To: Vicomte13 (#85)
#87. To: GrandIsland (#86)
I don't know who's worse, you or Deckard. You both fear monger for your agendas.
#88. To: Vicomte13 (#87)
What I am saying is the truth.
#89. 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.
This is an apt illustration of allegiance as understood at common law,
For the most persuasive reasons we have refused citizenship to Chinese subjects; and yet, as to their offspring, who are just as obnoxious, and to whom the same reasons for exclusion apply with equal force, we are told that we must accept them as fellow-citizens, and that, too, because of the mere accident of birth. There certainly should be some honor and dignity in American citizenship that would be sacred from the foul and corrupting taint of a debasing alienage. Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance aud dignity of citizenship by birth? If so, then verily there has been a most degenerate departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having.
#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,"
#91. To: GrandIsland, Vicomte13 (#75)
1) You just don't like hearing what it is... you live by politically correct softened language. An illegal alien isn't just an undocumented worker... He's a criminal piece of shit, shitting on my freedoms and liberties because his country sucks. Not my problem.
#92. To: nolu chan (#89)
"You appear to have some obsessive fixation with the parents when the subject is the child."
#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."
#94. To: nolu chan (#90)
#95. To: misterwhite (#92)
If the subject was the child then we wouldn't care if the parents were diplomats, correct? Meaning the subject is not the child but the status of the parents.
#96. To: misterwhite (#94)
Throwing shit against the wall to see what sticks, are you?
#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.
#98. To: nolu chan (#97)
#99. To: nolu chan (#91)
#100. To: GrandIsland (#99)
#101. To: nolu chan (#97)
"A child born without immunity from our laws is born subject to U.S. jurisdiction."
#102. To: GrandIsland (#99)
Just being present can be handled criminally, it's a federal misdemeanor. The government chooses to handle it civilly to avoid trial and incarceration.
WHAT IS UNLAWFUL PRESENCE?
9 FAM 40.92 N1 INTERPRETATION OF "UNLAWFUL PRESENCE"
Consequences of Unlawful Presence in the U.S. -- Three- and Ten-Year Time Bars
Is Illegal Immigration a Crime? Improper Entry v. Unlawful Presence By Brett Snider, Esq. on July 9, 2014 8:19 AM What's the "illegal" part of being an illegal immigrant? Is it a crime to simply be an undocumented immigrant residing in the United States? What about "sneaking" across the border?
#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.
#104. To: Vicomte13 (#98)
If the "immaculate conception" birthers got their way on "jurisdiction", it is true that all those anchor babies would not be US citizens. It is also true that 11 million illegal aliens would have have diplomatic immunity;
#105. To: nolu chan (#104)
#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."
#107. To: nolu chan (#103)
"There is no law that makes the baby an anchor permitting the parents to stay in the United States."
#108. To: misterwhite (#107)
"A child born to illegal aliens in the United States can initiate a chain of immigration when he reaches the age of 18 and can sponsor an overseas spouse and unmarried children of his own. When he turns 21, he can also sponsor his parents and any brothers and sisters."
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