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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: 17410
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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#1. To: cranky (#0)
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What does the constitution have to say about invasion or attack by foreign nations. How different is the invasion and occupation by Mexicans and the reconquista movement from the Japanese attack on Pearl Harbor?
I think it does. Seems pretty clear on the plain language. The Supreme Court has not ruled on the matter. When the Supreme Court does rule, 4 out of 5 Justices will agree with me. So, will Kennedy, Roberts, Alito, Thomas or Scalia, or any one of them, also agree? Probably. My bet would be that the Supreme Court would rule 9-0 that the 14th Amendment means what it says. They would explain, simply, that a child born in United States territory to parents who were not diplomats with immunity are US citizens by definition, are US citizens, as they are all subject to US jurisdiction at the time of their birth. I could be wrong, of course, but this has been the standard juridical understanding of the 14th Amendment for a century and a half, so I can't see the Supreme Court deciding otherwise. The Constitution will have to be amended.
So why was the Indian Citizenship Act in 1924 necessary? Didn't the idiotic Congress in 1924 know American Indians were already full citizens because of the 14th Amendment? There are three kinds of people in the world: those that can add and those that can't
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?
Didn't the idiotic Congress in 1924 know American Indians were already full citizens because of the 14th Amendment? Because Indians were not taxed, and lived under their tribal governments, subject to their tribal laws, and were not, when on the reservations, subject to the jurisdiction of the United States. Born on American soil under the jurisdiction of the United States = citizen. Born of foreign diplomats with diplomatic immunity = not under US jurisdiction = not citizen. Born on tribal land governed by Indian law, as an Indian neither taxed nor counted as part of the census = traditionally not under US jurisdiction, but by 1924, with the frontier long closed and the American government in fact exercising rulership and jurisdiction over the tribes, the Indians WERE in fect, by then, under US jurisdiction, and therefore properly considered citizens. When illegal aliens come to the US, do they have immunity from US laws like diplomats do? No. They are under US jurisdiction - they can be hauled before US courts. Are they like the Indians of the 1860s, that still lived wild under their own governments, untaxed, uncounted, and not able to be hauled into US courts to have US law enforced against them? No. They are under US jurisdiction. Therefore, the children born here are citizens. With the Indians, the latter half of the 19th Century and early part of the 20th saw the subjugation and domestication of the last Indians. They had settled down into a shabby dependency on the US, were in government schools, governed by US laws, and it was sought to integrate them into society. They were no longer "Indians not taxed, and not counted in the census". They were no longer REALLY independent, or REALLY living outside of US jurisdiction. So the states with large Indian populations wanted them counted, for federal patronage reasons. Hence the law change. That doesn't apply to the Mexicans. The Supremes will probably all look at the 14th and read it, and what it means is pretty obvious to the legally trained mind. It's why there are such wild and rather desperate efforts to pull in really obscure cases and circumstances to try to nullify the obvious. "Jurisdiction" means "subject to the courts of". Illegal aliens are subject to US laws and courts, and if born here, they're citizens. It's what the 14th Amendment SAYS, in plain language. Originalists can look at the intent too, and it's not helpful for those who want to evade the words. There were plenty of whites who wanted nothing better than to claim that blacks, being born of former slaves, were not citizens unless their grandfathers had been - extending the time period before which blacks could vote. It was always invidious, and the civil rights movement struck that stuff down using the 14th Amendment. All of that same jurisprudence and judicial habit of mind, and prejudice, will be there. I can't look at a single Justice on the Supreme Court and see any of them not upholding what I'm saying here. The Democrats won't budge on birthright citizenship. Given knowledge of the history of the amendment, Thomas is unlikely to vitiate its protections. Alito isn't likely to. Kennedy will probably oppose it because of his politics. It's tough to see what is given to Scalia to work with here. Jurisdiction and birth are the two things the document says. He'd have to become a judicial activist in a very strange direction to not uphold birthright citizenship. It's going to take a Constitutional Amendment, and that's never going to happen. So, we're better off focusing on border control and economic measures, because even Trump is not going to be able to erase birth right citizenship.
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? Moot. We don't have the draft. And we never will again.
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 I'll answer your question anyway. He's a US citizen and subject to the draft. If he refuses to report, he will be prosecuted. He may well be a dual citizen of Mexico, but that will avail him nothing unless he flees to Mexico. If he flees to Mexico, they won't extradite him, probably (unless they're currying favor with the US government of the time, or the Mexican government approves the war on which the US is embarking). If he goes to Mexico, he'll be a draft dodger and forever subject to prosecution, until he comes back or there's another pardon.
This is birther bullcrap. It is directly contrary to Supreme Court precedent. It is a steaming pantsload. The whole argument is discredited and failed birther nonsense. Prior to July 4, 1776, the colonials got British birthright citizenship. After July 4, 1776, they got American state birthright citizenship. (Britain dates the change from the signing of the Parris Peace Treaty.) 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? The immunity of a diplomat inheres to the child at birth. The child is not subject to the jurisdiction of the United States. 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. This unforgivable, deliberately deceiving bullshit. The Civil Rights Act language and drafters were different, and a comment made by one congressman who did not draft the citizenship clause of the 14th Amendment cannot define the intent of the drafter of that clause, or somehow nullify the debate preceding passage of that clause. When Bingham spoke in the House about the CRA, he was attacking it as unconstitutional. Congressman Bingham's draft of the 14th Amendment contained no citizenship clause. The citizenship clause was added in the Senate by its drafter, Senator Jacob Howard. http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11 Congressional Globe, Senate, 39th Congress, 1st Session, May 30, 1866, page 1290, column 2, Senator Jacob Howard speaking: Mr. HOWARD. I now move to take up House joint resolution No. 127. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States. The PRESIDENT pro tempore. The question is on the amendments proposed by the Senator from Michigan, [Mr. HOWARD.] Mr. HOWARD. The first amendment is to section one, declaring that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country. The PRESIDENT pro tempore. The first amendment proposed by the Senator from Michigan will be read. The Secretary read the amendment, which was in line nine, after the words "section one," to insert: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. So that the section will read: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction tho equal protection of the laws. Mr. DOOLITTLE. I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment -- I presume he will have no objection to it -- by inserting after the word "thereof" the words "excluding Indians not taxed." The amendment would then read: Mr. HOWARD. I hope that amendment to the amendment will not be adopted. Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the "consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States. http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14 At page 2893, column 1, Senator Lyman Trumbull speaking: At page 2893, column 2, Senator Johnson speaking: http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=15 At page 2894, column 1-2, Senator Trumbull to Senator Johnson, The object of "subject to the jurisdiction thereof" was the same as "Indians not taxed," with that phrase indicating a class of people belonging to the quasi-nation of an Indian tribe, under tribal law. It was not meant to apply to Chinese, Mongolians, or any other classification of people. http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=15 At page 2894, column 3, Senator Trumbull: http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=16 At page 2895, column 2, Senator Howard: I concur entirely with the honorable Senator from Illinois, in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction. That question has long since been adjudicated, so far as the usage of the Government is concerned. The Government of the United States have always regarded and treated the Indian tribes within our limits as foreign Powers, so far as the treaty-making power is concerned, and so far especially as the commercial power is concerned, for in the very Constitution itself there is a provision that Congress shall have power to regulate commerce, not only with foreign nations and among the States, but also with the Indian tribes. That clause, in my judgment, presents a full and complete recognition of the national character of the Indian tribes, the same character in which they have been recognized ever since the discovery of the continent and its occupation by civilized men; the same light in which the Indians were viewed and treated by Great Britain from the earliest commencement of the settlement of the continent. They have always been regarded, even in our ante-revolutionary history, as being independent nations, with whom the other nations of the earth have held treaties, and in no case, I believe, has either the Government of Great Britain or of the United States recognized the right of an individual Indian to transfer or convey lands. Why? If he was a citizen, in other words, if he was not a subject of a foreign Power, if he did not belong to a tribe whose common law is that land as well as almost every other description of property shall be held in common among the members of the tribe, subject to a chief, why is it that the reservation has been imposed and always observed upon the act of conveyance on the part of the Indian? http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=17 At page 2896, column 3, Senator Howard: At page 2897, column 1-2, Senator Williams: If there be any doubt about the meaning of that paragraph, I think that doubt is entirely removed by the second section, for by the second section of this constitutional amendment Indians not taxed are not counted at all in the basis of representation. The words in the second section are as follows: They are not to be regarded as persons to be counted under any circumstances. Indians not taxed are not even entitled to be counted as persons in the basis of representation under any circumstances; and then the section provides -- Now, can any reasonable man conclude that the word “citizens” there applies to Indians not taxed, or includes Indians not taxed, when they are expressly excluded from the basis of representation and cannot even be taken into the enumeration of persons upon whom representation is to be based? I think it is perfectly clear, when you put the first and second sections together, that Indians not taxed are excluded from the term “citizens;” because it cannot be supposed for one moment that the term “citizens,” as employed in these two sections, is intended to apply to Indians who arc not oven counted under any circumstances as a part of the basis of representation. I therefore think that the amendment of the Senator from Wisconsin is clearly unnecessary. I do not believe that “Indians not taxed” are included, and I understand that to be a description of Indians who maintain their tribal relations and who are not in all respects subject to the jurisdiction of the United States. In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, “subject to the jurisdiction of the United States,” to mean fully and completely subject to the jurisdiction of the United States. If there was any doubt as to the meaning of those words, I think that doubt is entirely removed and explained by the words in the subsequent section; and believing that, in any court or by any intelligent person, these two sections would be construed not to include Indians not taxed, I do not think the amendment is necessary. - - - - - - - - - - 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. http://supreme.justia.com/us/112/94/case.html Elk v. Wilkins, 112 U.S. 94 (1884) At 99: Elk was born a member of an Indian nation. Leaving the tribe decades later did not make him a citizen at birth. At 101-102: Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations. http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep169&id=686#686 United States v. Wong Kim Ark, 169 U.S. 649, 664-668 (1898) 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 Ops. Attys. Gen. 373); and by Attorney General Bates in 1862 (10 Ops. Attys. Gen. 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: '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 [169 U.S. 649, 665] 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.' 2 Kent, Comm. (6th Ed.) 39, 42. And he elsewhere says: '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.' Id. 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: '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 of the United States are, with the exceptions before mentioned [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.' Page 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. 649, 666] Page 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 Am. Law Reg. 193, 203, 204. 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 '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 domicile'; and children born in a foreign country, of a French father who had not established his domicile 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.' Poth. Trait e des Personnes, pt. 1, tit. 2, 1, Nos. 43, 45; Walsh-Serrant v. Walsh-Serrant (1802) 3 Journal du Palais, 384, 8 Merlin, Jurisprudence, 'Domicile' (5th Ed.) 13; Pr efet 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; Cockb. Nat. 13, 14; Hall, Int. 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. 649, 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 'appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe,-'De la vieille regle francaise, ou plutot meme de la vieille regle europ eenne,'-according to which nationality had always been, in former times, determined by the place of birth.' 1 Demolombe, Cours de Code Napoleon (4th Ed.) No. 146. The later modifications of the rule in Europe res upon the constitutions, laws, or ordinances of the various countries, and have no important bearing upon the interpretation and effect of 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, Confl. Laws, 741. 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. Cockb. Nat. 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. 649, 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.
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.
If you say so. There are three kinds of people in the world: those that can add and those that can't
That settles it then. There are three kinds of people in the world: those that can add and those that can't
"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."
Can we draft tourists into our military? Hey, they're subject to our jurisdiction while they're here, right?
Two wrong illegals shouldn't shit out a right.
I'm the infidel... Allah warned you about. كافر المسلح
There's a political world and a juridical world. They overlap, of course, and in times of political strife they overlap a great deal, to the point where the former can overwhelm the latter. Judges are either elected politicians or appointed politicians. They are politicians nevertheless. A Supreme Court Justice, having lifetime tenure, is considerably insulated from the political process - and therefore better able to execute his personal political will without consequences - but they're never COMPLETELY free of the political process, for two reasons: (1) they can be impeached, and (2) the size of the court and its range of jurisdiction can be limited or extended. And of course there is always the third limitation: they don't have an army or a police force of their own. So if the other two political branches do not check each other, the Supreme Court can be ignored. During the Civil War, the Supreme Court issued dozens, maybe hundreds, of habeas corpus writs. Lincoln ignored them, and the only authority that could check Lincoln was Congress - and it was dominated by his party and eager to fight the war. I don't remember Taney's exact words, but I recall a decision he wrote in which the court ordered something or other, and he knew that it would be ignored, so he wrote something bitter words along the lines of 'but I understand that the writ of this court no longer runs in this land'. That's right, Rodge. Your "Dred Scott" decision sought to delineate, by fiat, the rights of slaveowners in such a way as to lock in slavery rights in the territories, rendering the issue off limits to the political process. The Court has spoken! And wrought a civil war as the fruit. Lincoln had the power to ignore that toxic institution and its doddering ignoramuses, and he did. The Supreme Court effectively ceased to exist during the Lincoln Presidency on most matters, and deserved to. The Court has no power to enforce anything, and when the Legislature and Executive are united against it, the best the Justices can hope for is not to be summarily impeached, tried for treason and hanged if that's the good will of the governing powers. (I exaggerate only slightly. During the French Revolution, many judges were guillotined for defiantly continuing to execute "equitable powers", which the National Assembly had stripped from the judiciary in retaliation for its anti-revolutionary decisions. When the judiciary refused to be cowed, judges began to be executed, a fact which swiftly and permanently broke the will of the judiciary to directly defy the legislative power. To this day French judges have no equitable power, and it's still a criminal offense for a judge to cite to another judicial opinion as the basis of his decision. Power is a very serious matter. People shed blood over it. The Supreme Court has managed to entrench for itself a great deal of power, judicial, and quasi-legislative. The court has taken chances with that power in recent decades, notably over civil rights, but the bulk of country was in truth with the degregation power so the court won, and bolstered its power thereby. Given those things, although the Supreme Court are political appointees, and although many are self- proclaimed "conservatives", this is a case in which "conservatism" is likely to be a very juridical matter and not a political one. We know how the Democrat justices will rule on an assault on birthright citizenship: they will say that it is obviously unconstitutional on the very face of the 14th Amendment, given the court's long-established precedents on the meaning of "jurisdiction". But the conservative justices, too, are very likely to conservatively "stare decisis et non quieta movetur" - to stand by what has been decided and not disturb settled precedent. The Amendment says soil and jurisdiction, effectively. Soil is a matter of geography, and jurisdiction has been beaten to death by the courts. That is not an area where there is a question. Maybe it meant thus and so in 1700 in Switzerland, or in 1800 in Washington, or 1873 in Georgia, but in 2015, it means "subject to the trial court". A diplomat with immunity isn't subject to the nation's courts unless his home country waives immunity. But everybody else, pretty much, is. The old, odd case of Indians, arising from the particular circumstances of their being in the country, was always a special case. And it was resolved 100 years ago. Scalia and Thomas, Altio and Roberts may make some sort of a show of going through the legislative history of the 14th Amendment, but in the end every one of them is going to come down on the side of what the Supreme Court has said for a century about jurisdiction. And Kennedy? He's not even going to go through the charade. The 14th Amendment bestows birthright citizenship on anybody born in the USA who isn't a diplomat with immunity. That's the status of "jurisdiction" TODAY, and I don't think there is one justice on the Supreme Court that will go anywhere BUT there. There are plenty of things that can be done to address illegal aliens. And birthright citizenship - if it's a matter of sufficient political power and anxiety in the people, COULD - under the leadership of a politician determined to do it - even become the vehicle to significantly attack and diminish the power and prestige of the Supreme Court. But on the issue itself, the Court will rule that the 14th Amendment means what every judge and lawyer in practice knows it means, and it will do so early. To get rid of birthright citizenship will either require a constitutional amendment, or a joint Congressional and Presidential assault on the very authority of the court that limits the power of judicial review itself, through legislation and through executive defiance without consequences from Congress. Amend, or assault and diminish the court. Those are the options here. Amendment won't make it through the political process. That leaves a coordinated assault on the power of the Supreme Court. I'd like to see that, actually - I think the French are right - but I don't actually see that coming from anywhere, including Trump. When Trump gets power, he will look at his tableau of options and see birthright citizenship as a "hard" point. He'll use it to beat the court and the opposition, and drum up support for other things, but he won't launch a direct assault on the court's authority. He's too much of a traditionalist to do that. Birthright citizenship is guaranteed by the 14th Amendment. The anchor baby law will remain the Supreme Law of the Land. To stop anchor babies will require policing the border, because the Court isn't going to allow the status of those who are born on this side of the line to be changed. You can take that to the bank. The decision will be 9-0.
Tourists subject to our jurisdiction are not CITIZENS. But COULD we pass a law and draft them? Well, sure. We could pass a law to dissect them and eat them. The Germans had laws that turned Jewish tourists into slaves and then soap, so why not turn tourists into soldiers. Give them guns and grenades and heavy weapons and send them out there to protect the interests of the country that dragooned them. Yeah! THAT'LL show 'em! Oh, wait...
The birth of a child is not "shitting something out". But yeah, under the 14th Amendment, a pregnant illegal who makes it into the USA gives birth to an American child, your and my fellow citizen. Regardless of what any of us thinks about that. We have two choices: accept that's the Constitution and look at OTHER ways of addressing the illegal flow and anchor baby problem (like: building the wall and bringing home the US military from abroad to man it, and severely punishing US employers that hire illegals. Or we can amend the Constitution. Those are the choices. The second isn't going to happen, so we're left with the first.
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.
I do say so, and what I say in this case is the Supreme Law of the Land. All nine justices of the Supreme Court agree with me on this, as will be discovered quickly should Trump win and actually start to move in that direction…and not quickly figure out that this is not the battlefield on which to fight, because there's nothing to negotiate and no way to win. Choose better ground. This is a frontal assault into the guns. This will be Azincourt, and the Supreme Court will be the archers. Different tactics can win the fight, but a headlong assault on the 14th Amendment would be slapped down by 98.5% of the judges in America. And the 1.5% that would decide the other way would probably be removed from the bench within a year.
It could have just said All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside. That would accomplish the meaning you say. But they added "and". There was no need to do that if they were seeking the meaning that you believe. So it HAS to mean something else. No other reason to put it there.
I personally don't accept that... IT is no peer of mine, and I feel that our constitution needs amending if the USC is as warped as you on this issue.
I'm the infidel... Allah warned you about. كافر المسلح
It does. It meant, in 1868, that people within US territory who were "over the horizon", past the frontier… Indians out there on the "American" plains that were American in name but not really; Canadians wandering out there in the woods that accidentally crossed unmarked lines and set up a cabin but who thought it was Canada, and of course foreign diplomats and staff of every stripe with diplomatic immunity, and passengers on foreign ships passing through American waters - they were not subject to US jurisdiction as a matter of reality. And therefore not citizens. But the world has changed. There are no more wild Indian tribes. When those words were written, neither the Sioux nor the Apache nor the Nez Perce had fought yet. They were real nations, spread over real large areas, with real fight in them, but definitely NOT subject to US jurisdiction. We'd be in an Indian War with one bunch of them and General Custer, Civil War hero, would be dead with his whole unit a little under e decade LATER. The Idnians would still be at war a half-century later. America was not settled ground then. THere were hostile nations within. REAL nations, with real governments, and weapons, and not controllable. it would take three wars to bring them in check. They were on territory the US claimed, but that the US did not rule, and would not rule for decades more - and had to fight to secure - and took some hard knocks to get. That's primarily what it meant. But also people in transit. Today we fly around. Then, everybody sailed around. It took time. Ships passed in and out of ports a lot, for supplies, to rest, etc. Foreigners who were foreigners and intended to BE foreigners got on and off, or stayed off at anchor. Today, we have record-keeping and the like to track these things. There was no such thing as a driver's license in 1868. They weren't immune to US laws if they came ashore, exactly, but if they were on their ships tied up, it was admiralty, and admiralty says that the law of the flag controls the ship. So in 1868 a Spanish ship tied up in New Orleans could be inspected by Customs Officials for tariffs, if offloading, but it's passengers were not subject to US law unless they got off the ship and went wandering out and committed a crime…and even then it might depend. If it were a petty crime, by getting back aboard the ship, the citizen had passed within the jurisdiction of Spain, and local officials could not barge aboard the ship. They might prevent it from leaving, and there by a diplomatic dance. The point is, that there were a lot of people who spent considerable time in a transit status, aboard a foreign flag ship in the US, and those persons were not generally subject to US jurisdiction - insofar as US officials could not simply board the ships and take off passengers and the like. The law was complicated. Diplomats have always been immune. The distinction had meaning in 1868. In the age of airports, ID cards, tracking and judicial and executive overreach, where people routinely carry "papers", etc., the reach of jurisdiction is much broader. There are no more wild Indians. Today, the jurisdiction limitation means that foreign diplomats' kids are not American.
I'm not "warped". I am telling you the way that it is. I do not have the power to change things. I'm telling you that the Sun will rise in the East. I'm telling you that water flows downhill. I'm telling you that Hillary Clinton will lie tomorrow and the day after. And I'm telling you that, given the meaning of "jurisdiction" in our long-settled jurisprudence, that the Supreme Court will strike down attacks on birth right citizen and force an amendment, and no amendment like that will get 2/3rds of both houses and 3/4s of the states. Won't happen. Pick another battlefield. You're going to lose on this one. Don't shoot the messenger.
I am afraid established precedent precedes your question by about 160 years. Good ol' Honest Abe (the guy that chopped down a cheery tree and could not tell a lie) pulled Irish "visitors" right off the boats in New York harbor and elsewhere and immediately enlisted them in the US Army to defend the Glory of the Union by murdering the Southern enemy.
He won.
Naw, he is rotting in HELL; remember Good ol' Honest Abe murdered over 500,000 Americans for a few bank interests that were centralized in the North while the South was completely void of any real capability.
I agree with that statement although it is my view that the 14th amendment covers to children of LEGAL immigrants and NOT the children of illegals. Their children were put under the anchor baby umbrella by the 1965 immigration act. But SCOTUS would most likely declare a repeal of that provision unconstitutional after they examine the "penumbras" and "emanations" of the Constitution. Quis custodiet ipsos custodes?
It will NEVER happen with a weak SCOTUS; these nine dressed upped black robed klouwns go along with any demanding President that goes against cultural and social instinct to include allowing the construct of "marriage" to be mandated by federal law, where none exists at all. These were states rights issues. And SCOTUS shall use 0bama's "laws" as a precedent for "their" further decisions, assuming they permit a court review.
I agree with you. IF there were a "god of the Constitution" lurking out there, with an actual opinion of what the words "MEAN", in a transcendental, absolute sense, the divine INTENT of those words, so to speak, then I'm sure that birth right citizenship would not "mean" the children of illegals. But the Constitution is just a set of loose rules for political cricket, they're not Scripture and there's no constitutional god out there holding the "true" meaning. It means whatever the Supreme Court says it means, and it means whatever the various players in the game actually do and claim (and believe) is "correct". The Supreme Court has a very long and very important set of jurisdictional rules. The whole concept of "jurisdiction" grew and grew through layer after layer of court decisions over the centuries. Why? Because if the US has "jurisdiction", that means that the Supreme Court can hear the case, which means they have power over the outcome. The Supreme Cpurt has been an eager beaver over the years at finding jurisdiction. That is why going to the Court with a political argument, that it should dramatically reduce the meaning of the word "jurisdiction" so as to allow the politicians to "get at" the anchor babies without having to amend the Constitution is simply a no-fly zone. Congress and the President will be asking the Supreme Court to carve away at the basis of its own power, and to claim that it does not itself have the power to judge cases that concern illegal aliens. For that is precisely what "No US jurisdiction" would MEAN under two centuries of Supreme Court precedent. It would mean that the Supremes were powerless over a case. The Supremes will NEVER rule that they are powerless over average people of whatever nationality within the United States. Never. The whole argument turns on jurisdiction, but for the Supreme Court to rule that there is no jurisdiction would mean that the Supreme Court would have no power over tens of millions of people in America. Once that is understood, is is clear why the Supreme Court will rule 9-0 that the US DOES have jurisdiction over those people, and that therefore their babies are citizens. To ask the Supreme Court to rule "No jurisdiction" would be akin to asking the Congress to relinquish its ability to make laws regarding some important subject matter. It ain't happening, no matter HOW much the people want it. Fact is, if the people REALLY want it that badly, they'll have the supermajorities necessary to amend the Constitution. But they don't. And they won't. That is why birth right citizenship is a terrible pace to pitch a battle. It's doomed before the first shot is fired. The place to fight this is at the border, with walls, surveillance and redeployment of military forces from abroad to the US.
It's a terrible place to pitch a battle, but it's a good place to make a feint. Trump has chosen the ground well, because it fires people up.
"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 Congressional Globe is my friend. I had already quoted what Trumbull actually said at my #9, and also explained that it was Senator Howard who introduced the 14th Amendment. My #9 gives extensive quotes regarding what "subject to the jurisdiction" means. A child born in the United States without diplomatic immunity is subject to the jurisdiction of the United States. The clear context of Trumbull was a child born into an Indian nation tribe was not subject to the jurisdiction of the United States because he was under the jurisdiction of the tribal laws. A child born of two illegal aliens in the U.S. is under the complete jurisdiction of U.S. law, U.S. law enforcement, and U.S. courts. In addition, SCOTUS decisions have repeatedly held that children born in the United States without immunity are citizens at birth. It was a function of English common law before July 4, 1776 and said common law was adopted by all thirteen colonies upon independence and carried into statehood. Legislation cannot conflict with SCOTUS holdings interpreting the Constitution. http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14 At page 2893, column 1, Senator Lyman Trumbull speaking:
I think you refer to Ex parte Merryman, by Taney sitting as Chief Justice of the U.S. Supreme Court at Chambers. It is not an opinion of the U.S. Supreme Court, but an in chambers opinion of a single justice. That is what Taney wrote on the hand written opinion, and what he anounced from the bench just before he read it. That was in the courthouse for the Circuit Court in Maryland. Some argue it was a Circuit Court opinion as it was so reported by a court reporter. Ex parte Merryman, 17 Fed. Cas. 144, Case 9487, pp 146-155 (1861). The constitution provides, as I have before said, that " no person shall be deprived of life, liberty or property, without due process of law." It declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated ; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the per. sons or things to be seized." It provides that the party accused shall be entitled to a speedy trial in a court of justice. These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial ofiicers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found. In such a case, my duty was too plain to be mistaken. I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him ; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States, It will then remain for that high officer, in fulfilment of his constitutional obligation to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.
Notice that about half the able-bodied men in the state of Wisconsin were foreigners who had not been naturalized. Stanton’s reply confirmed they were eligible for the draft. OFFICIAL RECORDS: Series 3, vol 2, Part 1 (Union Letters, Orders, Reports) Page 369 UNION AUTHORITIES. Honorable E. M. STANTON: About one-half of the able-bodied men between eighteen and forty- five years in this State are foreign born. They have declared their intention to become citizens of the United States. Have the right to vote under our State constitution if twenty-one years old. Have enjoyed and are enjoying all the privileges of citizens. Are they liable to be drafted? They should be liable. Great injustice will be done to our State if they are exempt, and our quota would be too large if they are exempt. Cannot those who are not willing to subject themselves to draft be ordered to leave the country? Answer this immediately. I must have the time for volunteering extended, as asked for by my dispatches of Saturday and yesterday. Please answer them. E. SALOMON, Governor of Wisconsin. - - - - - Washington City, D. C., August 12, 1862. Governor SALOMON, Madison, Wis.: Foreigners who have voted at our elections are regarded as having exercised a franchise that subjects them to military duty. Declaration of intention to become naturalized is not of itself sufficient to prevent their taking advantage of their alienage, but a man who votes must bear arms. Your telegram respecting extension of time for volunteering cannot be answered until to- morrow, some information from different States being required. EDWIN M. STANTON, Secretary of War. - - - - -
There are plenty of things that can be done to address illegal aliens. And birthright citizenship - if it's a matter of sufficient political power and anxiety in the people, COULD - under the leadership of a politician determined to do it - even become the vehicle to significantly attack and diminish the power and prestige of the Supreme Court. But on the issue itself, the Court will rule that the 14th Amendment means what every judge and lawyer in practice knows it means, and it will do so early. To get rid of birthright citizenship will either require a constitutional amendment, or a joint Congressional and Presidential assault on the very authority of the court that limits the power of judicial review itself, through legislation and through executive defiance without consequences from Congress. I absolutely concur. A child born to two illegal aliens awaiting deportation in a detention center is a natural born citizen. The child is born in the United States and does not enjoy immunity from U.S. jurisdiction. What could be done, and what I understand Trump to be alluding to with a nuanced statement, is that the parents could be deported. The U.S. citizen child could not be deported, but they could take the child with them, keeping the family together. Or not. Their choice. The 14th Amdt. establishes citizenship for the child. It does not grant anchor status for the parents.
We can and have drafted aliens, see #34. Tourists are under U.S. jurisdiction while in the U.S. Drafting of alien tourists would be a major violation of international law. Reciprocity would indicate that if we drafted tourists, others could do the same to U.S. citizen tourists.
All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside. That would accomplish the meaning you say. No. That would make the child of a foreign diplomat, born in the U.S., a natural born U.S. citizen. Recognized diplomats have immunity and are not subject to our laws while in the U.S. Their child also has immunity.
I believe this is backwards. The 1965 Act put the alien parents under the anchor baby umbrella. It is the baby who is the qualifying U.S. immediate relative citizen. The 1965 Act could be repealed or amended by another piece of legislation.
From the 'Trump, Deny Citizenship --' thread: --- Because once born in the USA, the baby is a citizen, and cannot be deported. -- And because it's parents could be deported, it would be a ward of the court until its maturity, subject to the courts orders, which could allow the parents to take the child with them when they are deported. -- Or, the child could remain in the USA, raised by foster parents.. Problem solved?
But the U.S. Constitution trumps international law. You're in the Army now.
Correct. Trump said the government was not going to break up families. Illegal aliens will be allowed to take their children with them if they wish. I might add that he said nothing about revoking anyone's existing birthright citizenship.
That would be the logical course of action... i'm sure the founding fathers never intended to keep the evidence from two illegal acts. I'm the infidel... Allah warned you about. كافر المسلح
I think it's possible to make a strong case that the children born here of illegal aliens are not U.S. citizens at birth. Congress needs only to define, "and subject to the jurisdiction thereof" as "owing allegiance to no other country". This, by the way, is not breaking any new ground. That said, I doubt they will be able make that definition retroactive.
What if foreign tourists have a baby here? Is their child a U.S. citizen? Can we draft their child into the military?
The U.S. Supreme Court has never ruled on the citizenship status of children born in the U.S. whose parent(s) are here illegally. And THAT is the subject we're discussing, not diplomats, not Indians. Illegals.
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.
I doubt it as well because of special interests and platform ideologies. Common sense however dictates that two illegals shitbags couldn't produce a legal spawn... and why would this country think it's the wisest move to keep the child and separate it from the shitbag parents? Deport them all. I'm the infidel... Allah warned you about. كافر المسلح
yes and that has been the problem since they decided they have judicial review in Madison v Marbury . Since then it's been a looking glass world. “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.” Quis custodiet ipsos custodes?
Why that was allowed to happen, and continues to happen, I don't know. "and why would this country think it's the wisest move to keep the child and separate it from the shitbag parents?" The child is a legal U.S. citizen. We can't just kick him out of the country. We can only hope that if he's young enough, the parents will take him with.
check this out : Quis custodiet ipsos custodes?
These people have got to laughing their asses off at the stupid Americans. No birthright citizenship for tourists or illegals. And add Green Card holders, those here on work visas, student visas, or any other visas. Children of U.S. citizens only.
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.
They decided, and Jefferson and the Congress did not overrule them. It takes three to dance that dance. The Supreme Court can rule however, but if the President ignores the decision, and the Congress impeaches the justices for making it, on the ground that they have abused their authority, then it isn't there. If you don't want judges exercising equitable power, you have to make it illegal for them to do so and then punish them if they do. Most people would fall well shy of THAT. Instead, most people want what they want on any given issue, but they want the Supreme Court to be a bulwark protecting them on the rest of the issues where they AGREE with the policy or the court. Desegregation, after all, was driven by Supreme Court decisions.
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'm the infidel... Allah warned you about. كافر المسلح
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.
Or by relatives lawfully present in the U.S.
Good post,
Once born in the USA, the baby is a citizen, and cannot be deported. -- And because it's parents could be deported, it would be a ward of the court until its maturity, subject to the courts orders, which could allow the parents to take the child with them when they are deported. -- Or, the child could remain in the USA, raised by foster parents.. Problem solved? Good to see we've found a legal issue where we can agree.
No, I am not Dung Beetle, Sam Hill, or Hon. But I've heard that before. Steve is on hiatus from Sweetness & Light.
I think so too.
libertysflame.com/cgi-bin...t.cgi?ArtNum=41480&Disp=0 So, -- What do you think, -- can the government ban 'anything'?
No, I am not Dung Beetle, Sam Hill, or Hon. But I've heard that before. Steve is on hiatus from Sweetness & Light Fess up, -- were you 'roscoe' on FR? And why is Steve on hiatus, -- is he ill?
That definition does not comport with the constitutional interpretation given by SCOTUS. An act of legislation cannot conflict with a constitutional interpretation of the Constitution. The child must be subject to the jurisdiction of the United States, i.e., subject to its laws and courts. The allegiance (a term not in 14A citizenship) cited by Trumbull refers to the term as used in English common law citizenship, as brought into this country. Acquired allegiance, is that binding a naturalized citizen. Local or actual allegiance, is that measure of obedience due from a subject of one government to another government, within whose territory he is temporarily resident. From this are excepted foreign sovereigns and their representatives, naval and armed forces when permitted to remain in or pass through the country or its waters. Black's Law Dictionary, 6th Ed.
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.
Your logic is nonsense. The INA is not unconstitutional now. You want to amend it in a way that conflicts with the Constitutional. That is unconstitutional. For amending the Constitution, see Article 5, not Article 1.
Yes, it goes back to the day when the king was referred to as my Liege. Today's blather is about Plyler v. Doe by Justice Brennan. - - - - - - - - - U.S. Supreme Court PLYLER v. DOE, 457 U.S. 202 (1982) 457 U.S. 202 PLYLER, SUPERINTENDENT, TYLER INDEPENDENT SCHOOL DISTRICT, ET AL. v. DOE, GUARDIAN, ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 80-1538. Argued December 1, 1981 Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not “legally admitted” into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 210-230. (b) The discrimination contained in the Texas statute cannot be considered rational unless it furthers some substantial goal of the State. Although undocumented resident aliens cannot be treated as a “suspect class,” and although education is not a “fundamental right,” so as to require the State to justify the statutory classification by showing that it serves a compelling governmental interest, nevertheless the Texas statute imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. These children can neither affect their parents’ conduct nor their own undocumented status. The depri- __________ * Together with No. 80-1934, Texas et al. v. Certain Named and Unnamed Undocumented Alien Children et al., also on appeal from the same court. [457 U.S. 202, 203] (c) The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents. It is true that when faced with an equal protection challenge respecting a State’s differential treatment of aliens, the courts must be attentive to congressional policy concerning aliens. But in the area of special constitutional sensitivity presented by these cases, and in the absence of any contrary indication fairly discernible in the legislative record, no national policy is perceived that might justify the State in denying these children an elementary education. Pp. 224-226. (d) Texas’ statutory classification cannot be sustained as furthering its interest in the “preservation of the state’s limited resources for the education of its lawful residents.” While the State might have an interest in mitigating potentially harsh economic effects from an influx of illegal immigrants, the Texas statute does not offer an effective method of dealing with the problem. Even assuming that the net impact of illegal aliens on the economy is negative, charging tuition to undocumented children constitutes an ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens. Nor is there any merit to the suggestion that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high-quality public education. The record does not show that exclusion of undocumented children is likely to improve the overall quality of education in the State. Neither is there any merit to the claim that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the State’s boundaries and to put their education to productive social or political use within the State. Pp. 227-230. No. 80-1538, 628 F.2d 448, and No. 80-1934, affirmed. BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. MARSHALL, J., post, p. 230, BLACKMUN, J., post, p. 231, and POWELL, J., post, p. 236, filed concurring opinions. BURGER, C. J., filed a dissenting opinion, in which WHITE, REHNQUIST, and O’CONNOR, JJ., joined, post, p. 242. [...] From the Opinion of the Court [457 U.S. 202, 210] The Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis added.) Appellants argue at the outset that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessy v. Mezei, 345 U.S. 206, 212 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U.S. 67, 77 (1976).9 __________ 9 It would be incongruous to hold that the United States, to which the Constitution assigns a broad authority over both naturalization and foreign affairs, is barred from invidious discrimination with respect to unlawful [457 U.S. 202, 211] Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase "within its jurisdiction."10 We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized __________ aliens, while exempting the States from a similar limitation. See 426 U. S., at 84-86. 10 "Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States .... ." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States."' Id., at 687. Justice Gray concluded that "[e]very 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." Id., at 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouvé, Exclusion and Expulsion of Aliens in the United States 425-427 (1912). [457 U.S. 202, 212] that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority In concluding that "all persons within the territory of the United States," including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. Wong Wing, supra, at 238.11 Our cases applying the Equal Protection Clause reflect the same territorial theme.12 _________ 11 In his separate opinion, Justice Field addressed the relationship between the Fifth and Fourteenth Amendments: "The term 'person,' used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws .... The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar-in face of the great constitutional amendment which declares that no State shall deny to any person within its jurisdiction the equal protection of the laws." Wong Wing v. United States, 163 U. S., at 242-243 (concurring in part and dissenting in part). 12 Leng May Ma v. Barber, 357 U. S. 185 (1958), relied on by appellants, is not to the contrary. In that case the Court held, as a matter of statu- [457 U.S. 202, 213] There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection" and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection. __________ tory construction, that an alien paroled into the United States pursuant to § 212(d)(5) of the Immigration and Nationality Act, 8 U. S. C. § 1182(d)(5) (1952 ed.), was not "within the United States" for the purpose of availing herself of § 243(h), which authorized the withholding of deportation in certain circumstances. The conclusion reflected the longstanding distinction between exclusion proceedings, involving the determination of admissibility, and deportation proceedings. The undocumented children who are appellees here, unlike the parolee in Leng May Ma, supra, could apparently be removed from the country only pursuant to deportation proceedings. 8 U. S. C. § 1251(a)(2). See 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 3.16b, p. 3-161 (1981). [457 U.S. 202, 214] Although the congressional debate concerning 1 of the Fourteenth Amendment was limited, that debate clearly confirms the understanding that the phrase "within its jurisdiction" was intended in a broad sense to offer the guarantee of equal protection to all within a State's boundaries, and to all upon whom the State would impose the obligations of its laws. Indeed, it appears from those debates that Congress, by using the phrase "person within its jurisdiction," sought expressly to ensure that the equal protection of the laws was provided to the alien population. Representative Bingham reported to the House the draft resolution of the Joint Committee of Fifteen on Reconstruction (H. R. 63) that was to become the Fourteenth Amendment.13 Cong. Globe, 39th Cong., 1st Sess., 1033 (1866). Two days later, Bingham posed the following question in support of the resolution: Senator Howard, also a member of the Joint Committee of Fifteen, and the floor manager of the Amendment in the Senate, was no less explicit about the broad objectives of the Amendment, and the intention to make its provisions applicable to all who "may happen to be" within the jurisdiction of a State: __________ 13 Representative Bingham's views are also reflected in his comments on the Civil Rights Bill of 1866. He repeatedly referred to the need to provide protection, not only to the freedmen, but to "the alien and stranger," and to "refugees ... and all men." Cong. Globe, 39th Cong., 1st Sess., 1292 (1866). [457 U.S. 202, 215] Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction - either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States - he is entitled to the equal protection of the laws that a State may choose to establish.
Pretty much says it all, doesn't it?
Oh, I see. Since that doesn't happen until 18 or 21 years from now, that's like it will never happen. That kind of thinking is what's killing states and cities swamped by pension outlays they agreed to 20 years ago.
Nope. Congress would merely define what is meant by "and subject to the jurisdiction thereof". And Congress has that power to do so.
U.S. Const., Sec 1: "The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Judicial branch interprets the Constitution, not the Congress. Legislation which conflicts with a SCOTUS interpretation of the Constitution is unconstitutional. The Court has defied the term. http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep457&id=246#246 U.S. Supreme Court PLYLER v. DOE, 457 U.S. 202 (1982) 457 U.S. 202 PLYLER, SUPERINTENDENT, TYLER INDEPENDENT SCHOOL DISTRICT, ET AL. v. DOE, GUARDIAN, ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 80-1538. Argued December 1, 1981 Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not “legally admitted” into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 210-230. [...]
Two different animals. One deals with citizenship of the United States, subject to the jurisdiction of the United States, and the other deals with the equal protection of all persons residing in (within the jurisdiction of) a state. That's the problem when you take the word "jurisdiction" a) out of context and b) attempt to define it in your own terms.
Constitution Doesn’t Mandate Birthright Citizenship
#2. To: cranky (#0)
Constitution Doesn’t Mandate Birthright Citizenship
#3. To: Vicomte13 (#2)
I could be wrong, of course, but this has been the standard juridical understanding of the 14th Amendment for a century and a half, so I can't see the Supreme Court deciding otherwise.
#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."
#5. To: cranky (#3)
So why was the Indian Citizenship Act in 1924 necessary?
#6. To: misterwhite (#4)
18 years from now, that child receives a draft notice from the U.S. military. He's going to war. He may die.
#7. To: misterwhite (#4)
18 years from now, that child receives a draft notice from the U.S. military. He's going to war. He may die.
#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.
#9. To: cranky, A K A Stone, misterwhite (#0)
(Edited)
The Constitution’s Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal.
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.
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.
RECONSTRUCTION.
SEC. 1. All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.
All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the States wherein they reside.
The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United Slates? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is, what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them.
If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.
But the Senator wants to insert the words, “excluding Indians not taxed.” I am not willing to make citizenship in this country depend on taxation. I am not willing, if the Senator from Wisconsin is, that the rich Indian residing in the State of New York shall be a citizen and the poor Indian residing in the State of New York shall not be a citizen. If you put in those words in regard to citizenship, what do you do? You make a distinction in that respect, if you put it on the ground of taxation. We had a discussion on the civil rights bill as to the meaning of these words, “excluding Indians not taxed.” The Senator from Maryland, [Mr. Johnson,] I think, on that occasion gave this definition to the phrase “excluding Indians not taxed,” that it did not allude to the fact of taxation simply but it meant to describe a class of persons; that is, civilized Indians. I was inclined to fall into that view. I was inclined to adopt the suggestion of the Senator from Maryland, that the words “excluding Indians not taxed” did not mean literally excluding those upon whom a tax was not assessed and collected, but rather meant to define a class of persons, meaning civilized Indians; and I think I gave that answer to the Senator from Indiana, [Mr. Hendricks,] who was disposed to give it the technical meaning that “Indians not taxed” meant simply those upon whom no tax was laid. If it does mean that, then it would be very objectionable to insert those words here, because it would make of a wealthy Indian a citizen and would not make a citizen of one not possessed of wealth under the same circumstances. This is the uncertainty in regard to the meaning of those words. The Senator from Maryland and myself, perhaps, would understand them alike as embracing all Indians who were not civilized; and yet, if you insert that language, “Indians not taxed,” other persons may not understand them that way; and I remember that the Senator from Indiana was disposed to understand them differently when we had the discussion upon the civil rights bill. Therefore I think it better to avoid these words and that the language proposed in this constitutional amendment is better than the language in the civil rights bill. The object to be arrived at is the same.
Mr. TRUMBULL. I think there are decisions that treat them as subjects in some respects. In some sense they are regarded as within the territorial boundaries of the United States, but I do not think they are subject to the jurisdiction of the United States in any legitimate sense; certainly not in the sense that the language is used here. The language seems to me to be better chosen than it was in the other bill. There is a difficulty about the words, “Indians not taxed.” Perhaps one of the reasons why I think so is because of the persistency with which the Senator from Indiana himself insisted that the phrase “excluding Indians not taxed,” the very words which the Senator from Wisconsin wishes to insert here, would exclude everybody that did not pay a tax; that that was the meaning of it; we must take it literally. The Senator from Maryland did not agree to that, nor did I; but if the Senator from Indiana was right, it would receive a construction which I am sure the Senator from Wisconsin would not be for; for if these Indians come within our limits and within our jurisdiction and are civilized, he would just as soon make a citizen of a poor Indian as of the rich Indian.
I think the language as it stands is sufficiently certain and exact. It is that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Mr. HOWARD. ... We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by the roots and destroy it, and expose the freedmen again to tho oppressions of their old masters.
Mr. WILLIAMS. I would not agree to this proposed constitutional amendment if I supposed it made Indians not taxed citizens of the United States. But I am satisfied that, giving to the amendment a fair and reasonable construction, it does not include Indians not taxed. The first and second sections of this proposed amendment are to be taken together, are to be construed together, and the meaning of the word “citizens,” as employed in both sections, is to be determined from the manner in which that word is used in both of those sections. Section one provides that --
All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
But whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, &c.
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.
The question, then, is whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States within the meaning of the first section of the Fourteenth Amendment of the Constitution.
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
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.
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 50 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. Clarke (1844) 1 Sandf. Ch. 583.
#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.
#11. To: Vicomte13 (#5)
Therefore, the children born here are citizens.
#12. To: nolu chan (#9)
This is birther bullcrap.
#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."
#14. To: nolu chan (#10)
"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."
#15. To: Vicomte13 (#2)
#16. To: nolu chan (#10)
#17. To: misterwhite (#14)
#18. To: GrandIsland (#15)
#19. To: misterwhite (#13)
#20. To: cranky (#11)
#21. To: nolu chan (#10)
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.
#22. To: Vicomte13 (#18)
#23. To: A K A Stone (#21)
#24. To: GrandIsland (#22)
#25. To: Vicomte13, nolu chan (#17)
so why not turn tourists into soldiers.
#26. To: buckeroo (#25)
#27. To: Vicomte13 (#26)
He won.
#28. To: Vicomte13, buckeroo, redleghunter (#26)
Supreme Court will strike down attacks on birth right citizen .
#29. To: tomder55 (#28)
But SCOTUS would most likely declare a repeal of that provision unconstitutional after they examine the "penumbras" and "emanations" of the Constitution.
#30. To: tomder55 (#28)
#31. To: All (#30)
#32. To: misterwhite (#13)
Wiki is your friend:
The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United Slates? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is, what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them.
#33. To: Vicomte13 (#16)
I don't remember Taney's exact words, but I recall a decision he wrote in which the court ordered something or other, and he knew that it would be ignored, so he wrote something bitter words along the lines of 'but I understand that the writ of this court no longer runs in this land'.
Yet, under these circumstances, a military officer, stationed in Pennsylvania, without giving any information to the district attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the district of Maryland ; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if indeed he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without a hearing, even before himself, to close custody, in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.
#34. To: buckeroo, Vicomte13 (#25)
MADISON, WIS., August 12, 1862.
WAR DEPARTMENT,
#35. To: Vicomte13 (#16)
The 14th Amendment bestows birthright citizenship on anybody born in the USA who isn't a diplomat with immunity. That's the status of "jurisdiction" TODAY, and I don't think there is one justice on the Supreme Court that will go anywhere BUT there.
#36. To: misterwhite (#14)
Can we draft tourists into our military? Hey, they're subject to our jurisdiction while they're here, right?
#37. To: A K A Stone (#21)
It could have just said
#38. To: tomder55, Vicomte13, buckeroo, redleghunter (#28)
Their children were put under the anchor baby umbrella by the 1965 immigration act.
#39. To: nolu chan (#35)
If the act of entry is illegal and criminal, why doesn't the act de-legitimize and nullify the entire "transaction"? ---- Liberator
I absolutely concur. A child born to two illegal aliens awaiting deportation in a detention center is a natural born citizen. The child is born in the United States and does not enjoy immunity from U.S. jurisdiction.
What could be done, and what I understand Trump to be alluding to with a nuanced statement, is that the parents could be deported. The U.S. citizen child could not be deported, but they could take the child with them, keeping the family together. Or not. Their choice.
The 14th Amdt. establishes citizenship for the child. It does not grant anchor status for the parents. ---- nolu chan
#40. To: nolu chan (#36)
"Tourists are under U.S. jurisdiction while in the U.S. Drafting of alien tourists would be a major violation of international law."
You're not behind a plow.
You'll never get rich
By diggin’ a ditch.
You're in the Army now.
#41. To: nolu chan (#35)
"What could be done, and what I understand Trump to be alluding to with a nuanced statement, is that the parents could be deported. The U.S. citizen child could not be deported, but they could take the child with them, keeping the family together. Or not. Their choice."
#42. To: misterwhite (#41)
Correct. Trump said the government was not going to break up families. Illegal aliens will be allowed to take their children
#43. To: GrandIsland (#42)
"i'm sure the founding fathers never intended to keep the evidence from two illegal acts."
#44. To: nolu chan (#37)
#45. To: nolu chan (#32)
"In addition, SCOTUS decisions have repeatedly held that children born in the United States without immunity are citizens at birth."
#46. To: Vicomte13 (#19)
"The law is what it says"
#47. To: misterwhite (#43)
That said, I doubt they will be able make that definition retroactive.
#48. To: Vicomte13 (#30)
It means whatever the Supreme Court says it means
#49. To: GrandIsland (#47)
"Common sense however dictates that two illegals shitbags couldn't produce a legal spawn"
#50. To: misterwhite (#44)
What if foreign tourists have a baby here? Is their child a U.S. citizen? Can we draft their child into the military?
#51. To: tomder55 (#50)
"Even though the mothers paid birth tourism operators tens of thousands of dollars in fees, they paid local hospitals nothing or a reduced sum for uninsured, low-income patients, according to the affidavits"
#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.
#53. To: tomder55 (#48)
yes and that has been the problem since they decided they have judicial review in Madison v Marbury . Since then it's been a looking glass world.
#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)
#60. To: tpaine (#39)
the child could remain in the USA, raised by foster parents..
#61. To: nolu chan (#34)
Dung Beetle .... err nolu chan.
#62. To: nolu chan (#60)
Or by relatives lawfully present in the U.S.
I absolutely concur.
#63. To: buckeroo (#61)
Good post, Dung Beetle .... err nolu chan.
#64. To: tpaine (#62)
Good to see we've found a legal issue where we can agree.
#65. To: nolu chan (#64)
#66. To: nolu chan (#63)
buckeroo (#61) --- Good post, Dung Beetle .... err nolu chan.
#67. To: misterwhite, GrandIsland (#43)
I think it's possible to make a strong case that the children born here of illegal aliens are not U.S. citizens at birth. Congress needs only to define, "and subject to the jurisdiction thereof" as "owing allegiance to no other country". This, by the way, is not breaking any new ground.
Natural allegiance. In English law, that kind of allegiance which is due from all men born within the king's dominions, immediately upon their birth, which is intrinsic and perpetual, and cannot be divested by any act of their own. In American law, the allegiance due from citizens of the United States to their native country, and which cannot be renounced without the permission of government, to be declared by law.
#68. To: tpaine (#66)
Fess 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."
#109. To: misterwhite (#106)
Is the Immigration and Nationality Act unconstitutional? If not, then neither is an amendment to it.
#110. To: Vicomte13, misterwhite (#105)
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.
Decided June 15, 1982 * (a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” Whatever his status under the immigration laws, an alien is a “person” in any ordinary sense of that term. This Court’s prior cases recognizing that illegal aliens are “persons” protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase “within its jurisdiction,” cannot be distinguished on the asserted ground that persons who have entered the country illegally are not “within the jurisdiction” of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase “within its jurisdiction” confirms the understanding that the Fourteenth Amendment’s protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. Pp. 210-216.
vation of public education is not like the deprivation of some other governmental benefit. Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and poses an obstacle to individual achievement. In determining the rationality of the Texas statute, its costs to the Nation and to the innocent children may properly be considered. Pp. 216-224.
"The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: 'Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the protection of the laws is a pledge of the protection of equal laws." Yick Wo, supra, at 369 (emphasis added).
"Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities, - each responsible for its own laws establishing the rights and duties of persons within its borders." Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938).
"Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?" Id., at 1090.
"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction." Id., at 2766 (emphasis added).
#111. To: nolu chan (#110)
"Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction - either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States - he is entitled to the equal protection of the laws that a State may choose to establish."
#112. To: nolu chan (#108)
"That's great. 18 and 21 year old babies."
#113. To: nolu chan (#109)
"You want to amend it in a way that conflicts with the Constitutional."
#114. To: misterwhite (#113)
Nope. Congress would merely define what is meant by "and subject to the jurisdiction thereof". And Congress has that power to do so.
Decided June 15, 1982 (a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” Whatever his status under the immigration laws, an alien is a “person” in any ordinary sense of that term. This Court’s prior cases recognizing that illegal aliens are “persons” protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase “within its jurisdiction,” cannot be distinguished on the asserted ground that persons who have entered the country illegally are not “within the jurisdiction” of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase “within its jurisdiction” confirms the understanding that the Fourteenth Amendment’s protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. Pp. 210-216.
#115. To: nolu chan (#114)
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