On Citizenship, the ‘Birthers’ Are Right: Constitution, Tradition, favor Birthright Citizenship

National Review ^ | 08/22/2015 | John Yoo

[DoodleDawg]

Their parents were legal residents and therefore subject to the jurisdiction of the U.S.

What do you think "subject to the jurisdiction of the U.S." means exactly?

[Hostage]

All persons in the United States are subject to the criminal code of the United States. All persons in Canada are subject to the criminal code of Canada, etc.

You are confusing criminal code with general jurisdiction. Everyone in the USA is subject to the US criminal code.

If you think a person who commits a crime is subject to all law in the USA, you would be wrong. They are subject only to some law. For example, tourists are not subject to US Income Tax. Persons under commercial visa are not subject to the Selective Service Registration laws.

Again all persons in the USA are subject to criminal law except for certain diplomats having diplomatic immunity but even they are subject to deportation laws.

When the phrase “born in the United States and subject to the jurisdiction thereof” is interpreted, it means in the context of citizenship matters of ALLEGIANCE, not crime.

But not all persons in the USA are subject to citizenship laws in matters of allegiance. With respect to the jurisdiction of citizenship questions, not all people born in the United States are subjects to its jurisdiction of rulings related to citizenship status.

A child is subject to the laws of its parent’s jurisdiction with respect to questions of citizenship. US Jurisdiction is not conferred on a child because it was born in the US although it has been abused in this way.

Birthplace citizenship was never part of the original Constitution. Madison resolved the question of children born while aboard a ship on the high seas or abroad. For example, children born abroad of a US Ambassador were considered natural born. Citizenship was conferred by birth, not by place. Senator Barry Goldwater who ran for US President in 1964 was born in a territory that later became the State of Arizona. But his citizenship was never under question because his father was a US Citizen.

Citizenship has always been by parents not by place, or by naturalization until the Civil War when a special provision had to be made for freed slaves.

The 14th Amendment had to addressed the plight of freed slaves. Their parents were not citizens yet their parents were subject to the jurisdiction of the United States in terms of allegiance and law.

So the amendment was crafted correctly as a Civil War Amendment of TWO PARTS:

1) Born in the United States AND
2) Subject to the jurisdiction thereof

This was written for former slaves. The phrase is two parts, not one part.

An illegal alien is not under jurisdiction of citizenship laws in matters of allegiance. The alien’s allegiance is to a foreign state. The jurisdiction of the alien’s children follows that of the parents no matter where born, whether on an airplane over Canada, on a ship on the open ocean, in a tent in the Grand Canyon etc. The place is not important, it is the parent that determines citizenship of the child.

The 14th was not written for illegal aliens and their children. The abuse of the 14th in this regard has been promoted by immigration attorneys looking for a loophole when no one was looking. Now the people will require government to look and close the loophole. Immigration attorneys can expect to howl at such a movement because their livelihoods are affected. They will need to move on to other specialties.

[Petrosius]

What do you think "subject to the jurisdiction of the U.S." means exactly?

Citizens, non-citizen nationals, and legal residents; i.e. those who have a legal residence. All others are visitors.

[DoodleDawg]

Citizens, non-citizen nationals, and legal residents; i.e. those who have a legal residence. All others are visitors.

So visitors, illegal aliens, etc., what does it mean for them? Jurisdiction over what?

[semimojo]

For example, tourists are not subject to US Income Tax.

Of course tourists are subject to US Income Tax. If they derive income in the US they have to pay taxes on it like anyone else.

Persons under commercial visa are not subject to the Selective Service Registration laws.

I don't know about "commercial visas" but I do know that if Congress has passed a law saying commercial visa holders are subject to conscription law, then they are. Just because our legislature may have chosen to exclude certain classes of persons from a particular law doesn't mean they aren't subject to our laws. They are subject to every law that pertains to them.

When the phrase “born in the United States and subject to the jurisdiction thereof” is interpreted, it means in the context of citizenship matters of ALLEGIANCE, not crime.

But not all persons in the USA are subject to citizenship laws in matters of allegiance. With respect to the jurisdiction of citizenship questions, not all people born in the United States are subjects to its jurisdiction of rulings related to citizenship status.

What?

Birthplace citizenship was never part of the original Constitution

That's an interesting argument coming from someone advocating an Article V convention to amend the constitution. Do you think amendments are less a part of the Constitution than the original words?

An illegal alien is not under jurisdiction of citizenship laws in matters of allegiance.

I'll take your word for that, whatever it means, but they certainly are under the jurisdiction of our laws which is what 'jurisdiction' means in this context.

[Hostage]

> “Of course tourists are subject to US Income Tax. If they derive income in the US they have to pay taxes on it like anyone else.”

Tourists on tourist visa or for stated tourism are not income earners and are not authorized to earn income while in the USA unless they have a work permit in which case they have a different type of visa, hence they are not tourists.

Why are you confusing tourist visas with work visas?

I’ll tell you why. Because you have no point and are unwilling to admit it. So you make crap up. It’s so obvious.

Go away and don’t bother me anymore.

[semimojo]

Tourists on tourist visa or for stated tourism are not income earners and are not authorized to earn income while in the USA unless they have a work permit in which case they have a different type of visa, hence they are not tourists.

In your original statement you said nothing about the type of visa. You said tourists are not subject to US income tax. You were wrong.

People earning income in the US are subject to US Income Tax laws regardless of visa status. If a tourist violates their visa and earns income, they owe the taxes. Of course, if they honor their 'tourist' status they wont earn income and won't owe taxes, but that's completely different than not being subject to our laws.

[G Larry]

I was just waiting for somebody to respond:

Two Wongs don’t make a right.......

[Kid Shelleen]

The opinion of one man, no matter how influential in the drafting, is certainly not dispositive of determining the meaning of the amendment


Thank you for the thoughtful reply.

In trying to determine the meaning of the jurisdiction clause it seems to me that opinion of the author(s) is apt, if not essential to any honest discussion of the 14th amendment. For a layman like me the fact that renowned legal scholars agree with Jacobs shows his premise has merit.

Need I remind you of the “Grubering” of the ACA? We were told by liberals that there was a “typo” in the ACA. It was the spirit of the law that counted with the Supreme Court NOT the clear wording in the statute.

The irony of all ironies will be that in 20 years once the transformation of power is completed in favor of Hispanic leftists, the concept of birth citizenship will probably be changed to again. Just as the “free speech” movement was intended to promote student political activism we now see speech codes on universities being used to stifle political debate and any opposition to the leftist narrative.

[ColdSteelTalon]

If the law allows birthright citizenship, end of story (until the law is changed). I am not in support of changing the law, because there are situations where birthright citizenship can be useful to the oppressed.

We need to concentrate on sealing up tight the borders and strictly enforcing the current immigration laws.