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

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

[Kid Shelleen]

Noted legal scholars Mark Levin, John Eastman, and 14th Amendment expert Professor Edward Erler disagree, not to mention the author of the citizenship clause Sen. Jacob Howard of Michigan, who expressly said: “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.”

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

[Petrosius]

Conservatives believe in following the Constitution’s text, as understood by those who wrote and ratified it and with due regard for the course of American history and traditions. They reject the notion of a living Constitution whose meaning can change to fit the popular demands of the moment.

The constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.

Then shall we see what the author of the amendment actually meant? From the floor speech of Senator Jacob Howard (R-MI) who actually wrote the amendment:

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.

The Court read the 14th Amendment to recognize the existing American practice of granting citizenship based on birthplace. It saw no support for a new exclusion of the children of aliens. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.”

In U.S. v. Wong Kim Ark his parents were legal residents. No one is arguing against these. The question is that of those here illegally, i.e. those who are legally not residents. By law they are merely transient aliens, not residents. The precedent of the Kim case does not apply.

[tophat9000]

To the fool.who wrote this the 14 its states

“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.

birthright citizenship would be

“All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.

the debate is the clause

“, and subject to the jurisdiction thereof,

... whose jurisdiction do you belong to? ......see "illegal work both ways... because if your illegally you're still subject to the jurisdiction of your old country....your other country would have no say so about you....

let take the draft.... let's say both the United States and Mexico institute a draft for the military and they both try to draft the same person ...who gets them?

[48th SPS Crusader]

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.” The constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.

This plainly states just the opposite of what Woo claims. If the parents are illegal aliens then the child is not subject to the jurisdiction there of. He/she also is an illegal aliens

[Hostage]

Children of illegal aliens are subject to the jurisdiction that covers their illegal parents period no matter where they are born.

In the case of US v. Wong Kim Ark the Chinese parents were in San Francisco legally and therefore subject to the jurisdiction of the United States. Therefore, the children would be subject to their parents jurisdiction which was the United States.

Let Congress pass a law to clarify that anchor babies are not subject to US jurisdiction because their parents are not subject thereof as they are illegally in the USA for otherwise the provisions of deportation would contradict the law. If all persons illegally in the United States were subject to its jurisdiction, orders for deportation would not exist as the very act of deportation is to purposefully place a person under the person’s proper jurisdiction. Children of such deported persons would have to follow the deportees as such children are under the jurisdiction of their parents no matter where they were born.

Let immigration lawyers take it to court and progress to the US Supreme Court. If the SCOTUS once again defies the clear interest of the People and the meanings and intents of the Constitution, let hell rain down on them via emergency Article V amendments in the form of voiding and repealing their rulings by 3/5’s States Quash and by a much needed general reference amendment that greatly limits their ability to change the meanings and intents of words, terms and phrases of the Constitution to their own versions and devices. Let President Trump move to pack the Court as FDR did. Bring it all to a head.

No matter how the issue is argued, the battle must commence knowing that it ultimately leads to limits and conditions on the US Supreme Court that prevent overreach and abuse that the American People can no longer live with as free Americans.

[dila813]

NR : Anti-Rule of Law

[usurper]

Take the BCs away and throw them out.

Please don't say that, that is not what is being proposed. We are talking about policy going forward and not striping the citizenship of those who have it.

There are countless veterans who have served honorably in our armed forces, current and former law enforcement officers and countless other citizens in good standing who would be effected.

The dems and the GOPe will try to frame the argument as you have because no rational person would support such a immoral policy.

[Gaffer]

You have a difference of opinion with me about what the 14th amendment says with respect to the “jurisdiction” part.

In the case of the military veterans etc. you mention, this doesn’t conflict with “jurisdiction”.

BC as it has become applied in the last few decades involves primarily ILLEGAL candidates and beneficiaries. Those under military or other government approved paths aren’t what is specifically involved here. That’s what the “jurisdiction part” is all about. Those illegals who drop an entitlement baby here are extra-legal (outside the law - ILLEGAL) and not “under jurisdiction” in the sense the amendment stipulates. IOW, I’ve said nothing here that relates to those you are “concerned” about.

[Monorprise]

NR seems to be historically and legally challenged.
The limitations of Dred Scott were overturned by the 13th not 14th amendment.

Additionally the anthers of the 14th amendment made it very clear as did two subsequent court ruling that the 14th amendment’s ‘subject to the jurisdiction thereof’ qualification clearly prohibited citizenship by location of birth rather than parent of birth.

As federal law already repeats this qualification, all Trump and any other president need do is issue an order telling federal employees to stop treating theses foreign nationals as citizens.

[nathanbedford]

I disagree for the reasons expressed in the Virginia law review and in the discussion attendant upon it in that thread.

Prof. Yoo makes the argument and expresses the current conventional understanding of the fourteenth amendment citizenship clause and particularly the meaning of the clause, "and subject to the jurisdiction." In order to stop the current practice of issuing passports to anchor babies it is necessary somehow to get the Department of State to change its understanding of the constitutional mandate. In other words the State Department must disagree with Prof. Yoo and instead believe the argument of Mark Levin as he quotes Sen. Jacob Howard.

I remind you this constitutional amendment was passed by both houses of the federal Congress and three quarters of the state legislatures. The opinion of one man, no matter how influential in the drafting, is certainly not dispositive of determining the meaning of the amendment, although concededly it should be reckoned with. In reckoning with these words one opens up a discussion of what was the understanding in 1868 of the phrase "subject to the jurisdiction"?

The author in the Law Review article quoted above makes a compelling case that the meaning of jurisdiction in 1868 in this context was domicile and domicile equals a residence plus intent to establish a connection. He argues that this was the state of the law as well as the understanding of individuals like Sen. Howard. Why domicile? Because the matter of being subject to the jurisdiction means identifying the state to which the individual owes his allegiance and that is determined by domicile.

If this argument is persuasive, and the author has marshaled the facts and the law in a scholarly presentation, it means that children of aliens are in fact citizens when born providing their parents were domiciled. Even worse news, the fact that the parents were illegal does not affect their ability to establish a domicile here for their children who are therefore citizens by birth. However, tourism babies are not, according to the author, entitled to birth citizenship because their parents had not established a domicile.

At this point frustrated conservatives generally revert to Mark Levin citing his reference to article 1 section 8 granting Congress the power over naturalization. Naturalization is different from birth citizenship. Congress has plenary power over naturalization and, according to the Wong case, no power to redefine birth citizenship by defining domicile or playing with the rules of naturalization. Congress can always pass a law expelling aliens but it cannot redefine the fourteenth amendment.

At this point reference is usually made to the provision of the fourteenth amendment which grants Congress the power to enforce the amendment but that power has to do with enforcement against the states and not the power to redefine the amendment.

Any legislation in an attempt to cure the anchor baby problem will be vetoed by Barack Obama even in the unlikely event that we can get it through both houses of Congress and past a Senate filibuster. So nothing will happen so long as Obama has his pen. If a Republican is elected in January 2017, he can simply order the Department of State to decline to issue passports to any child born of illegal aliens whether they are domiciled or not. No doubt several states will continue to issue birth certificates but the passports will stop until the matter is adjudicated by a federal court.

That it seems to me is the quickest way to get a judicial resolution. We will see whose interpretation of the fourteenth amendment prevails. Meanwhile, beginning on January 2017 Congress and the president can pass laws expelling illegal aliens. Congress can change the rules of naturalization and tighten them up. That will have nothing to do with birth citizenship but it is a step in the right direction. Special attention should be paid to ending chain migration which is not protected by anybody's interpretation of the fourteenth amendment.

[kiryandil]

Yoo Hoo, John?

Gads, are Yoo stupid, or what?

[kiryandil]

“Tradition” is NOT “law”!

If we declare ourselves to be Democrat presidents or Democrat presidential candidates, tradition says that we cannot be prosecuted for multiple serious felonies.

Win-win!

[Arm_Bears]

Why I stopped reading NR.

[NTHockey]

As usual, the simplest answer is the best answer. Acknowledge that child is an American citizen, but parents are not. They have to go, baby stays. Solomon used a sword to find out who the real mother was. Allowing baby to stay and enjoy citizenship but no the parents forces the parents to choose between family and freebies.

[TBP]

Mr. Yoo, you are wrong. The Fourteenth Amendment does NOT mandate birthright citizenship. Congress can, and should, abolish it by statute.

[Biggirl]

Take it up with Mark Levin. He would not agree.

[semimojo]

Now, you have slip and fall lawyers, some phony constitutional lawyers, they have ‘Esquire’ after their name, they come on TV, they go all over the place, ‘Jurisdiction means geography.’

And here is where Levin loses me. He props up a straw man and doesn't address the critics' real point.

No one thinks it's just about geography. Most think "subject to the jurisdiction" means subject to the laws - an interpretation consistent with other uses of the word in the Constitution - as You points out in the article.

Diplomats and Indians weren't fully subject to our laws since those relationships were governed by treaty. Resident aliens (there was no such thing as an illegal alien at the time) were and still are fully subject to our laws.

This is the distinction that I've never heard Levin address.

[TBP]

The constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.

No, it does not. If it intended to say that, the jurisdiction clause is both superfluous and unnecessary. Hence, that must not be the meaning.

Nor did the people who wrote the amendment intend it to be read that way. They specifically said that aliens, owing no allegiance to the United States, were not to be considered citizens and thus neither were their children. they also excluded Indians for the same reason. (this was changed by statute in 1924.)

Current law excludes certain classes of children born here from birthright citizenship. If the Fourteenth Amendment says what Mr. Yoo says it says, then that law is blatantly unconstitutional. But NOBODY is making that argument.

Thus, this claim is provably, demonstrably wrong on both legal and historical grounds.

[TBP]

Congress drafted and sent the amendment to the states for ratification not to change the definition of citizenship

False statement. They sent it to change the definition of citizenship by affirming it for free blacks, who had been declared non-citizens by the Supreme Court.

[M-cubed]

itwasnt even a nice try...its lame at best!

‘and subject to the jurisdiction thereof,” <<<

THE OPERATIVE WORDS......DUH!