Birthright Citizenship -- A Fundamental Misunderstanding of the 14th Amendment

foxnews.com ^ | January 14, 2011 | Hans A. von Spakovsky

[WilliamofCarmichael]

Full text with my emphasis in the form of HTML LIST formatting. Maybe such an old article will pass any Fox posting restrictions.

[WilliamofCarmichael]

I will post the text below.

[WilliamofCarmichael]

.. and I posted the text of the article with my emphasis in the form of HTML LIST formatting. I hope no one objects. Link to the FR thread containing this 2011 article here

Birthright Citizenship -- A Fundamental Misunderstanding of the 14th Amendment

By Hans A. von Spakovsky Published January 14, 2011 FoxNews.com

What’s the citizenship status of the children of illegal aliens? That question has spurred quite a debate over the 14th Amendment lately,

• with the news that several states, including
  • Pennsylvania,
  • Arizona,
  • Oklahoma,
  • Georgia and
  • South Carolina,
• may launch efforts to deny automatic citizenship to such children.

Critics claim that

• anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally.
• But that ignores the text and
• legislative history of the 14th Amendment,
• which was ratified in 1868 to extend citizenship to
  • freed slaves and
  • their children.

The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that

• “[a]ll persons born or naturalized in the United States and
• subject to the jurisdiction thereof”
• are citizens.
• That
  • second,
  • critical,
  • conditional phrase
  is conveniently ignored or
• misinterpreted by advocates of “birthright” citizenship.

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.

But that is not what that qualifying phrase means. Its original meaning

• refers to the political allegiance of an individual and
• the jurisdiction that a foreign government has over that individual.
• The fact that a tourist or
• illegal alien is subject to
  • our laws and
  • our courts
  • if they violate our laws
• does not place them within the political “jurisdiction” of the United States
• as that phrase was defined by the framers of the 14th Amendment.
• This amendment’s language was derived from
  • the 1866 Civil Rights Act, which provided that
    • “[a]ll persons born in the United States, and
    • not subject to any foreign power”
  • would be considered citizens.
  • 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.

As John Eastman, former Dean of the Chapman School of Law, has said, many do not seem to understand

• “the distinction between partial, territorial jurisdiction,
  • which subjects all who are present within the territory of a sovereign
  • to the jurisdiction of that sovereign’s laws,
  and
• complete political jurisdiction,
  • which requires allegiance to the sovereign as well.”

In the famous Slaughter-House cases of 1872, the Supreme Court stated that

• this qualifying phrase was intended to
• exclude
  • “children of ministers,
  • consuls, and
  • citizens or
  • subjects of foreign States born within the United States.”
• This was confirmed in 1884 in another case,
  • Elk vs. Wilkins,
• when citizenship was denied to an American Indian because
  • he “owed immediate allegiance to” his tribe and
  • not the United States.

American Indians and their children

• did not become citizens until Congress passed the Indian Citizenship Act of 1924.
• There would have been no need to pass such legislation if
  • the 14th Amendment extended citizenship to every person born in America,
  • no matter what the circumstances of their birth, and
  • no matter who their parents are.

Even in U.S. v. Wong Kim Ark,

• the 1898 case most often cited by “birthright” supporters due to its overbroad language,
• the Court only held that
  • a child born of lawful, permanent residents
  • was a U.S. citizen.
• That is a far cry from saying that a child born of individuals
  • who are here illegally
• must be considered a U.S. citizen.

Of course,

• the judges in that case were strongly influenced by the fact that
  • there were discriminatory laws in place at that time
    • that restricted Chinese immigration,
  • a situation that does not exist today.
• The Court’s interpretation of the 14th Amendment
  • as extending to the children of legal, noncitizens
• was incorrect,
  • according to the text and
  • legislative history of the amendment.
• But even under that holding,
• citizenship was not extended to the children of illegal aliens –
• only permanent, legal residents.

It is just plain wrong to claim that

• the children born of parents
  • temporarily in the country as students or
  • tourists
• are automatically U.S. citizens:
• They do not meet the 14th Amendment’s jurisdictional allegiance obligations.
• They are, in fact, subject to the political jurisdiction (and allegiance) of the country of their parents.
• The same applies to the children of illegal aliens because
  • children born in the United States to foreign citizens are
  • citizens of their parents’ home country.

Federal law offers them no help either. U.S. immigration law (8 U.S.C. § 1401) simply

• repeats the language of the 14th Amendment, including the phrase
  • “subject to the jurisdiction thereof.”
• The State Department has erroneously interpreted that statute to
  • provide passports to anyone born in the United States,
  • regardless of whether their parents are here illegally and
  • regardless of whether the applicant meets the requirement of being “subject to the jurisdiction” of the U.S.
• Accordingly, birthright citizenship has been implemented by executive fiat, not because it is
  • required by federal law or
  • the Constitution.

We are only one of a very small number of countries that

• provides birthright citizenship, and
• we do so based not upon the requirements of federal law or the Constitution,
• but based upon an erroneous executive interpretation.
• Congress should clarify the law according to the original meaning of the 14th Amendment and
• reverse this practice.

Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation and a former Justice Department official. Hans A. von Spakovsky is a former Justice Department official. He is the co-author, with John Fund of "Obama's Enforcer: Eric Holder's Justice Department" (Broadside/HarperCollins 2014). He is Manager, Election Law Reform Initiative and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.

[qaz123]

Listening to Coulter a while back as she was being interviewed by Hannity. She briefly mentioned something concerning birthright citizenship, a SCOTUS decision from the 80s and the fact that one of the liberal judges put something in the decision supporting birthright citizenship.

Anyone have any idea what she was/I am talking about?

[RIghtwardHo]

Legislative history is almost completely meaningless in Judicial analysis. That is a fundamental axiom. Be glad or we wouldn’t have many of the 2nd Amendment protections we now enjoy.

This article is a fundamental misunderstanding of the 14th. Amend it. But claiming it doesn’t say what it says is a fools errand.

[WilliamofCarmichael]

Though I believe that the text is 100 percent the same as the original article the way I formatted it could have changed the intended meaning.

I just heard on the radio others emphasize

• “the distinction between partial, territorial jurisdiction,
  • which subjects all who are present within the territory of a sovereign
  • to the jurisdiction of that sovereign’s laws,
  and
• complete political jurisdiction,
  • which requires allegiance to the sovereign as well.”

Isn't the absence of allegiance enough to deny citizenship without having to amend the 14th?

[FlingWingFlyer]

The 14th Amendment says nothing about foreigners getting ready to pop being allowed to sneak into the U.S. so they can pump out a child and get to stay here. A bunch of “Ninja ladies” carrying pumpkins on their heads and malingering on a cushy Feral Court bench came up with that bull****.

[tumblindice]

“Legislative history is almost completely meaningless in Judicial analysis. “

Regarding rules of legal construction in analyzing statutes, here, a constitutional amendment, that’s not right.
One of the first, the most salient things a court does—or is supposed to do—in construing a statute: in applying `black letter law,’ is to attempt to determine what it is the legislature intended.

It isn’t a court’s job to speculate or legislate itself, and if it isn’t attempting to ascertain what the lawmakers intended, then what is it doing? It is making law.

Lately the law is whatever the federal district court says it is, even if a state legislature or public mandate has reached a clear, even overwhelming decision opposite that sought by the democrats’ political agenda, SEE: homosexual marriage.

The reason the Democrats don’t want that standard procedure followed is that it would result in the abandonment of the “birthright citizenship” rule.

Our Congress may have been filled with vengeful northern “re-constructionists” unrestrained by a martyred Lincoln, but it takes a vivid imagination (or a Mexican law degree) to take the position that they intended to make the United States of America the nest for all the cowbirds of the world who could steal across our borders.

[tumblindice]

Here you go.
http://legal-dictionary.thefreedictionary.com/Canons+of+Construction

I don’t mean to sound like a pedant, but this is important stuff.
“The Constitution is not suicide pact.”
Justice Robert H. Jackson, 1949

[familyop]

Hans von Spakovsky
Wikipedia

Von Spakovsky, originally from Huntsville, Alabama, is a second-generation American whose parents immigrated to the United States in 1951 after meeting in a refugee camp as displaced persons after the end of World War II.

[familyop]

Denazification, cumulative review. Report, 1 April 1947-30 April 1948.
http://digital.library.wisc.edu/1711.dl/History.Denazi

[familyop]

Fourteenth Amendment to the United States Constitution
“Section 1. 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.”

[WilliamofCarmichael]

I do not understand the meaning of your last two replies.

Nazis?

The 14th Amendment? That's what the article is about especially the meaning of jurisdiction.

[familyop]

This should clear it up.

There are some verbose arguments against the Fourteenth Amendment, but they come from individuals whose parents or grandparents are from Cuba, or Germany around World War 2 or before. Those of you who want to turn our United States into Soviet Balkan Germanistan, get out of my country.

If you want to enforce existing laws against the flood of slave peasants and rich foreign tyrants, stick with that. Stop judicial activism. It comes from “der old country,” and it’s gone way too far. If you only want to come here for the money instead of becoming a real American, go away.

[familyop]

To be subject to the jurisdiction of a defined area is to be subject to the laws and presiding courts of that area. Foreign visitors are subject to the laws of the United States and the state that they are visiting with a few exceptions (e.g., foreign diplomats).

The Law Dictionary
Featuring Black's Law
Dictionary Free Online Legal Dictionary 2nd Ed

Law Dictionary: What is JURISDICTION? definition of JURISDICTION (Black's Law Dictionary)

The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or ad- mitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient. 1 Black, Judgm.

[John Valentine]

http://humanevents.com/2010/08/04/justice-brennans-footnote-gave-us-anchor-babies/

[semimojo]

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

With this statement von Spakovsky proves himself a tool. There may be some wing nut that believes what he asserts but the vast majority of critics know that diplomats have a degree of immunity and are not fully subject to our laws. These are precisely the people the 14th excludes.

When you have to mis-characterize your opponent's argument it means you have nothing to contribute to the discussion.

[John Valentine]

Obviously, illegals are not and never could be subject to the jurisdiction of the United States to the same degree or in the same manner as citizens. To assert otherwise, as you seem to do, is just silly at best and obfuscatory at worst. The can be no doubt that the “and subject to the jurisdiction thereof” was put in the 14th for a reason, and that reason was universally accepted for most of our history as a nation. Your perspective is an aberration and a bizarre reversal of legislative history, good statutory construction, and common sense.

[semimojo]

Obviously, illegals are not and never could be subject to the jurisdiction of the United States to the same degree or in the same manner as citizens.

OK, name one law that we can't apply to an illegal alien to the same extent that we can apply it to a citizen (assuming the law applies to both).

[John Valentine]

jury duty
voting
treason

ohhh... you say “assuming the law applies to both...” In my opinion that’s a steaming hot mess of a confession on your part that there IS a differentiation possible in the law between citizens and non-citizens, respecting the duty owed to the sovereignty... You are either incapable of honest discussion of the subject or your are being deliberately obfuscatory.

[semimojo]

I’ve never argued that there weren’t potential differences in the laws, only that illegals are fully subject to the laws that our legislators choose to apply to them.