Posted on 07/17/2007 1:37:54 PM PDT by westcoastwillieg
To buy into this notion of automatic citizenship for children born here of illegal immigrants is to overlook least three points:
1) it ignores the history and intent of the Fourteenth Amendment;
2) it ignores John Locke's social contract and his discussion of tacit consent and sovereignty;
3) it forgets that a person not here legally is not legally here.
Starting with the first point, the 14th Amendment was drafted to make it explicitly clear that two classes of people who were in America legally, but who lacked either citizenship or residency status, would now be citizens. These two classes were American Indians and blacks. The former were here before we arrived, and the latter were brought here against their will.
The man who drafted the citizenship clause of the Amendment, Sen. Jacob Howard, noted that it '... 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.' If the Amendment was not intended to bestow citizenship status on the children of foreigners and aliens who were here legally, it certainly was not meant to confer citizenship status on those born here out of an illegal presence.
To ignore Sen. Howard's intentions about who is entitled to citizenship by birth is to reject a constructionist interpretation of the Constitution and to adopt the expansive view of the late Chief Justice Earl Warren. To do that, Justice William O. Douglas said, relies on 'penumbras formed by emanations'. His quote was in reference to other loose interpretations of the 14th Amendment by the Warren Court.
The second point goes back to John Locke and his Two Treatises of Government. Locke's theories were well known to the founders. He said that when in a state of society one chooses to live under a government, he gives his tacit consent to obey the laws of that government. He further said that 'foreigners, by living ... under another Government ... are bound even in Conscience, to submit to its Administration' (emphasis in original).
When foreigners enter our country illegally, they have rejected the principle of tacit consent forthwith. They have demonstrated that they have no intention of obeying the laws of our government. They have refused to 'submit to its administration', much less to recognize our sovereignty. Further rejecting Locke's state of society, they do not 'consent with others' to put themselves 'under an obligation to every one of that society', but rather demand that society has an obligation (citizenship for their children) to them. This is a complete reversal of Locke's arguments for the social contract.
Lastly, in the eyes of the law, they have no legal presence. Therefore, none of their deeds has legal status. Even though they are physically here, they are not legally here. Even though they physically give birth here, they do not legally give birth here. Since no legal birth can occur, there can be no legal status conferred upon the child born of that legal non-event.
Certainly illegal immigrants are entitled to due process under the 14th Amendment in terms of deportation hearings and criminal proceeding. To expand that - - to mean that their children are deserving of citizenship in contradistinction to the words of the author of that clause - - is folly. for strict constructionists, one cannot get there from here."
This travesty of interpretation will never get undone.
ping
The recent attempt by the United States Senate to give America away to foreigners has highlighted the issue.
Threads like this all over the net are providing hundreds of thousands of people the chance to discuss the issue and learn everything there is to know about it.
I suspect that a Supreme Court in the near term future will rule that it has always been the case that babies born to foreigners present in the US retain the citizenship status of their parents, much as American children born abroad retain the American citizenship of their parents.
Having illegal aliens as grandparents might serve to remove citizenship from people who think they are third generation Americans.
Could be interesting.
Sorry. Not true. American Indians were not citizens under the 14th Amendment. They were given citizenship 56 years later by the Indian Citizenship Act of 1924.
Sorry. Not true. American Indians were not citizens under the 14th Amendment. They were given citizenship 56 years later by the Indian Citizenship Act of 1924.
We can only hope. We can also hope that we get another appointment before 2008 or that a Repub wins so Her Heinous can’t undo the court.
It's been to the Supreme Court at least twice. See United States v. Wong Kim Ark, 169 U.S. 649 (1898) and Plyler v. Doe, 457 U.S. 202 (1982).
I mean, heck -- the Ed and Eileen Brown saga has robbed folks of the "16th Amendment Never Ratified" myth. Why not let them cry about this one, instead?
There was little public interest.
Thanks for the ref, though. It's been years since I read any of the immigration decisions and have been wondering if the issue of "TREATIES" was raised. Since the end of WWII all sorts of "rights of" deals have been signed onto by everybody as a consequence of the UN's existence. Certainly something must have tripped up the illegals on the issue in that time.
bookmark
I will wholeheartedly agree that the U.S.-born children of illegally-present aliens, diplomats, and temporary visitors (foreign-born tourists, students) do not deserve U.S. citizenship by birthright.
However, mentioning the possibility that "the Amendment was not intended to bestow citizenship status on the children of foreigners and aliens who were here legally" is disturbing. The largest waves of immigration occurred after the passage of the Fourteenth Amendment. How many children were born to these legal immigrants, prior to their attaining U.S. citizenship? How many of them should never have been granted U.S. citizenship, if the interpretations of the Fourteenth Amendments were overturned?
Yes, illegal aliens are a problem. Yes, their anchor babies are a major problem. But let's not play into the leftists' mind games by hinting that perhaps many millions of U.S. citizens are not actually U.S. citizens but stateless individuals. The real problem is the welfare state that serves as a lure for illegals.
If anchor babies are your concern, change immigration law so that the parents don't receive any advantage from them.
It's ridiculous to attack our fellow American-born citizens for being born here.
An exercise in jesuitical reasoning. It also overlooks the description elsewhere in the Constitution of what constitutes citizenship and the limits in various cases: naturalization for those not born in the United States (they cannot become president)—they become citizens by a legal process; naturally-born citizens (they are legally able to become president)—they are citizens by virtue of being born in the United States.
In that decision the USSC overturned Plessey v. Ferguson ~ and caused no end of social dislocation.
That's the problem here ~ the "anchor baby" deal is based on a Supreme Court decision ~ not statute! A future court could go off in a totally different direction with no guidance whatsoever from any statute (although I think there are treaties that probably affect the situation).
Even if the Supremes do retract that interpretation of the 14th amendment, they likely won't do it retroactively. It will be for any FUTURE children born of illegal aliens from the date of the decision. Gives them fair warning.
I'm sure that you will be the first to chime in that I should be stripped of U.S. citizenship and deported for being illegally present in the United States, since neither of my legal immigrant parents were U.S. citizens at the time of my birth.
But hey, no harm done. We'll throw out the good and the bad at the same time, right?
Comments like yours give a lot of folks reason to wonder if perhaps the MSM, broken clock as it may be, might still be right twice a day.
No, they're the nice folks in NH who don't want to pay their taxes, because the 16th Amendment was "never ratified."
No visa, no residency ~ ?
I think these earlier decisions failed to deal with today's problem. They'll need to be supplemented ~ either by statute or by new decisions.
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