[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.