Deconstructing "Birthright Citizenry"

self/vanity | August 28, 2015 | Jean F. Drew

[betty boop]

Thanks in very large part to The Donald, the illegal immigration issue has come raging to the fore in the consciousness of a great many American citizens (and others) in recent times. People are not only thinking about the issue, but they have started talking about it, oftentimes with great passion. And this is so regardless of which side of the dispute the contenders align with.

It seems there are two basic, contending schools of thought, both premised in the Fourteenth Amendment, which says:

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 States wherein they reside.

School I cherry picks this language to give a certain result: That all persons born in the United States are citizens of the United States. This is the jus soli doctrine boiled down to its essence: That citizenship is a matter of geography, and of nothing else. If you are born on U.S. soil, you are automatically a citizen of the United States. Your parents’ heritage or status as citizens of a foreign country, who are in the U.S. illegally — i.e., operating entirely outside of our visa, immigration and naturalization laws —are completely irrelevant considerations. And thus we obtain automatic “birthright citizenry.”

School II points out that this reading of the Fourteenth gives short shrift to the clause, “and subject to the jurisdiction thereof,” and obviates the matter of State citizenship altogether (and thus the entire idea of any established permanent residency within the bounds of the nation). The School II proponents gravitate to the jus sanguinis doctrine: A child born no matter where is regarded, naturally and in common law (and common sense), as inheriting his citizenry from his parents; from the moment of his birth.

It cannot be doubted that Article I, Section 8 of the U.S. Constitution vests plenary power in Congress to “establish an uniform Rule of Naturalization.” Clarifying “birthright citizenship,” thus, does not require a repeal of the Fourteenth Amendment, as some commentators insist; it just requires Congress to act. Nor does the Constitution place this power in the hands of the Supreme Court.

From an excellent “backgrounder” published by the Center for Immigration Studies (August 2010) — “Birthright Citizenship in the United States: A Global Comparison,” by Jon Feere — we have seven main scholarly findings regarding “birthright citizenship,” as follows:

• Only 30 of the world’s 194 countries grant automatic citizenship to children born to illegal aliens.

• Of advanced economies, Canada and the United States are the only countries that grant automatic citizenship to children born to illegal aliens.

• No European country grants automatic citizenship to children of illegal aliens.

• The global trend is moving away from automatic birthright citizenship as many countries that once had such policies have ended them in recent decades.

• 14th Amendment history seems to indicate that the Citizenship Clause was never intended to benefit illegal aliens nor legal foreign visitors temporarily present in the United States.

• The U.S. Supreme Court has held that the U.S.-born children of permanent resident aliens are covered by the Citizenship Clause [see the Wong decision; notably, Wong was the U.S.-born child of legal, permanently-resident aliens], but the Court has never decided whether the same rule applies to the children of aliens whose presence in the United States is temporary or illegal. [That would likely be because the Court understands that it does not have the constitutional power or authority to do this. To recognize the plenary power of Congress in this matter is to recognize that the issue must be decided through the political, not the judicial branches of government.]

• Some eminent scholars and jurists have concluded that it is within the power of Congress to define the scope of the Citizenship Clause through legislation and that birthright citizenship for the children of temporary visitors and illegal aliens could likely be abolished by statute without amending the Constitution.

The global trend over the past several decades has shown many countries that formerly defined citizenship according to the “right of the soil” (jus soli) principle have abandoned this practice. Freer writes,

In recent years, the international trend has been to end universal birthright citizenship. Countries that have ended universal birthright citizenship include the United Kingdom, which ended the practice in 1983, Australia (1986), India (1987), Malta (1989), Ireland, which ended the practice through a national referendum in 2004, New Zealand (2006), and the Dominican Republic, which ended the practice in January 2010. The reasons countries have ended automatic birthright citizenship are diverse, but have resulted from concerns not all that different from the concerns of many in the United States. Increased illegal immigration is the main motivating factor in most countries. Birth tourism was one of the reasons Ireland ended automatic birthright citizenship in 2004. If the United States were to stop granting automatic citizenship to children of illegal immigrants, it would be following an international trend.

Oh, that unlovely child of jus solis doctrine, “birth tourism!” We have that over here, in the U.S., in spades! It defies logic; it defies reason; it defies common sense.

Though the major impact of “birthright citizenry” is caused by invasions over our southern border, and mainly by Mexicans (according to the statistics they account for 60 percent of the illegal immigrant population in the United States), it cannot fairly be said that Mexican nationals can be held mainly accountable for the phenomenon of “birth tourism.” As it turns out, Chinese and Turk “anchor babies” have exploited this particular form of entrepreneurial activity more than other “anchor baby” groups.

“Birth tourism” takes the form of providing wonderful tourist packages marketed to foreign nationals who wish to birth their babies on U.S. soil, so to make them instant citizens, while receiving splendid amenities during their stay in the U.S.: Good hotels, medical care, shopping, touring the local landmarks, etc., etc. It’s a “package deal!” [At rates in the multi-thousands of dollars per trip for those who can pay.]

So, say a Chinese expectant mother, who likely was educated in the United States (and thus had a legitimate visa to be here at one time), along with her husband likewise situated, who both had to pay small fortunes for their tuition, might realize that U.S. tuition rates at first-rate American universities would be far cheaper, were their child a U.S. citizen. So, make your kid a U.S. citizen! The Fourteenth Amendment lets you do it! So enjoy your stay, drop the kid, and go back to China. There is rarely any intention of becoming a permanent resident of the United States in any of this, let alone a citizen.

But the most egregious example of abuse of the prevailing construction of the Fourteenth Amendment goes to Turkey. A family of Turkish citizenry, illegally present in the United States to this day, as founded on a single “anchor baby,” managed to establish in the U.S. a thriving hotel chain that caters to the U.S. “birthright citizenry” interests of Turkish nationals. And to add insult to injury, one learns that certain hospitals on the southern U.S border likewise engage in this trade, offering “package deals,” mainly marketed to Mexican nationals.

But I am encouraged to learn that, recently, certain hospitals on the southern border have refused to issue birth certificates to the U.S.-born children of illegal immigrants. No birth certificate, no proof of American birth. Kudos to them. [See ya’ll in court!!!]

This nonsense has to stop. And Congress alone has been invested with the constitutional duty to do it. It NEEDS to define the meaning of the “under the jurisdiction of” clause of the Fourteenth Amendment.

The legislative history of the Fourteenth Amendment, and of the prior Civil Rights Act of 1866, point clearly to the matter of undivided allegiance to one’s country as the key determinative factor in defining U.S. citizenship. Only those people are the people fully subject to the jurisdiction of the United States.

As Thomas Jefferson defined it, “Aliens are the subjects of a foreign power.” They are those who have not given their allegiance to the United States, because they are under allegiance to another nation.

With that thought in view, consider these chilling lines, from Jon Freer:

Are illegal aliens subject to the authority of the United States? Not in the way contemplated by authors of the 14th Amendment. … [T]he authors of the 14th Amendment explained that being subject to the jurisdiction of the United States means not owing allegiance to anybody else.

Without asking immigrants themselves, we cannot know where their allegiances lie, but in the case of Mexican immigrants, who constitute nearly 60 percent of the illegal alien population in the United States, we do know what their government thinks. It appears these individuals owe at least partial, if not complete allegiance to the government of Mexico.

For example, in its recent amicus brief to the U.S. District Court overseeing the injunction hearing on Arizona’s anti-illegal immigration bill S.B. 1070, the government of Mexico refers to Mexican illegal aliens as “its people” and “its citizens.” This is not a new perspective.

Former Mexican President Vicente Fox appointed one Juan Hernandez to head a governmental agency called the Institute for Mexicans Abroad. According to Mr. Hernandez’s own website, the agency’s principal objective is to “serve and dignify the 24 million whom President Fox has called heroes — the countrymen who live in foreign lands.” Mr. Hernandez explains: “We are betting on that the Mexican-American population in the United States…will think ‘Mexico first’ … But now I want the third generation, the seventh generation, I want them all to think ‘Mexico first.’”

Can you think of a better enabling principle for the Mexican Reconquista of the United States? Mexico has never recovered from the defeat of Santa Ana at San Jacinto, meted out by the hands of feisty Texans. Mexico receives billions of dollars a year in payments from their out-of-the-country population, which is probably a main support of subsistence and lifestyle for a great many of its citizen/nationals living within its geographic borders.

If Congress will not do its duty to define U.S. immigration/naturalization law, then likely our policy in such matters will be left to the determination of foreign governments.

No wonder The Donald has a “beef” with the Mexican government!

It’s time — past time — for Congress to do its constitutional duty to clarify such critical, even existential, matters.

The evident fact, however, is Congress is loathe to do so.

What a clown college they have got going on there! On the one side, the clowns demand endless, indiscriminate immigration, evidently thinking they can register millions of new (ignorant, mainly low-skilled, unculturated, non-English-speaking) Democrat voters.

On the other hand, you have the Chamber of Commerce, Business Roundtable, National Association of Manufacturers types who fund the GOP, who only want an unlimited supply of cheap labor. Not that they care at all about how this undermines blue-collar and middle-class employment in this country, and how it suppresses U.S. wage rates and standards of living.

Then they have the chutzpah to demand that the very people whose policies they are disadvantaging must pay all the costs associated with these “newcomers,” as federal and state taxpayers.

Am I alone in thinking that this is a horrifically corrupt, deranged system of governance that has completely departed from constitutional requirements — to which each legislator (and judge) has sworn an Oath of Office to uphold and defend?

Time to get rid of such folks, time to remove them from public office.

It’s time to bring in new national leadership, who understand and love the United States of America, “warts and all.”

We aren’t a “perfect union.” But we have ever strived towards that end.

Let’s keep on doing that. Let’s make America great again.

JMHO, FWIW.

[betty boop]

FYI!

[Hostage]

Great great analysis and summary! Wow!

Will keep this one as solid reference material!

[Hostage]

> “Mexico receives billions of dollars a year in payments from their out-of-the-country population, which is probably a main support of subsistence and lifestyle for a great many of its citizen/nationals living within its geographic borders.”

And Donald Trump will use a substantial portion of those remittance payments to fund the building of the Trump Wall!

[ktw]

It really comes down to this following question. If you are 8 1/2 months pregnant, run across the border and give birth in a U.S. hospital, is the baby a U.S. citizen?

Well, the 14th Amendment says this.
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Some people say that, if any woman is 8 1/2 months pregnant and has a baby in the U.S., that baby is automatically a U.S. citizen. Some people say that this is partially true. The key part of Section 1 is this, “and subject to the jurisdiction thereof,”.

This is what history tells us about it. The 14th Amendment was added after the Civil War in order to overrule the Supreme Court’s Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves — many of whom had roots in this country longer than a lot of white people.

This is what the original author (Sen. Jacob Howard of Michigan) co-author of the 14th Amendment (1866) expressly said what it means. “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers.”

In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians — because they were subject to tribal jurisdiction, not U.S. jurisdiction.

For a hundred years, that was how it stood, with only one case adding the caveat that children born to LEGAL permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)

And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” (Other than the part about one being lawful and the other not.)

Brennan’s authority for this lunatic statement was that it appeared in a 1912 book written by Clement L. Bouve. (Yes, THE Clement L. Bouve — the one you’ve heard so much about over the years.) Bouve was not a senator, not an elected official, certainly not a judge — just some guy who wrote a book.

So on one hand we have the history, the objective, the author’s intent and 100 years of history of the 14th Amendment, which says that the 14th Amendment does not confer citizenship on children born to illegal immigrants.

On the other hand, we have a random outburst by some guy named Clement — who, I’m guessing, was too cheap to hire an American housekeeper.

[Liz]

Thanks for the heads-up.

[Terry L Smith]

The Constitutional discussion is necessary, but there is a U.S.C. Title Code on the matter, as well.

It was a topic of discussion within the last 30 days on FR.

[marron]

Its quite common in countries all over Latin America that people who can, will protect themselves in several ways.

Buy at least some property in the US, maybe a condo or something.

Have a bank account in the US.

And when mom is about to give birth, fly her to the US so that the baby is a US citizen. The child may never live as an American, but they’ll keep the blue passport in a safety deposit box for the day that things go badly and they have to go. If you wait until you need a place to go, to start looking for a place to go, you’ve waited too long. And in a politicized economy as most of these are, you need to think ahead. An unlucky change of government can leave you in an untenable position.

That, and a lot of countries are so dangerous for people who have money that they need a place where they can walk the streets without having to worry about kidnappings. You may notice that many Latin entertainers and actors have homes here though they don’t advertise it.

I know people who have had to leave their home country; some arrive and get a lawyer and start working the system. The ones whose parents thought ahead, though, walk through the front door without any problems.

[Liz]

Former Mexican President formed a governmental agency called the “Institute for Mexicans Abroad” .....the agency’s principal objective is to “serve and dignify the 24 million living abroad. “We are betting on that the Mexican-American population in the United States…will think ‘Mexico first’ … But now I want the third generation, the seventh generation, I want them all to think ‘Mexico first.’”

---

REALITY CHECK Central American govts are conspiring against the US-—threatening the United States.......UNLESS we send them more money.

Guatemalan President Otto Perez warns the USA:
“you will be inundated w/ more contagious illegals
if billions of US tax dollars are not handed over.”

GUATEMALA CITY (Reuters) - The United States should provide billions of dollars to help Central American nations curb the flow of illegal migrants, Guatemalan President Otto Perez said, and his government warns the problem will get worse if Washington fails to help.

Fleeing violence, trying to reach relatives already in the United States or seeking jobs, record numbers of child migrants from Honduras, Guatemala and El Salvador have been stopped at the southern U.S. border this year, causing widespread alarm. Last month, the three countries pitched Washington an ambitious development plan to confront the issue.

They want to pump about $10 billion into the region to create jobs and lift living standards, with the bulk of funding coming from the United States, Perez told Reuters. He hopes the plan could come up with about $2 billion a year from 2015 to 2019, a sum he equated to roughly 10 percent of annual U.S. spending on border security and immigration enforcement.

“Now we understand it’s not simply a question of the United States saying: ‘Right, here’s $2 billion a year for five years’ for example - the governments of the three countries have to play their part too,” the conservative Perez, who took power in early 2012, said in an interview late on Monday.

The US aid package would boost infrastructure and provide more jobs in all three countries, especially in areas that send large numbers of migrants to the United States, he added.

The three Central American governments are urging the United States to shoulder the lion’s share of the costs, arguing that U.S. demand for illegal narcotics has fueled violence among drug gangs across much of the impoverished region.

“The United States has to support this, it has no other option,” Guatemala’s foreign minister, Carlos Morales, told Reuters. “If they don’t support it, the crisis will kick off again, you can count on it.”

Perez said he hoped the United States would put up about 60 percent of funding. “But we’ll have to discuss it calmly and see what each individual country can do, and what can be achieved by common consent.”

During meetings in New York in September, U.S. Secretary of State John Kerry told Central American officials he hoped Congress could approve about $300 million in funding, Morales said, noting the sum was “nothing” given the scale of the problem.

Central American leaders are due to meet Vice President Joe Biden on Nov. 12 in Washington to sound out U.S. support for their plan, Morales added.—SNIP—

(OCT 2014-—Reporting by Dave Graham; Editing by Kieran Murray) http://news.yahoo.com/u-stump-billions-curb-central-america-migration-perez-171130651.html

JUST A REMINDER : $266 million of your tax dollars
in the current spending bill...going to Central America
earmarked for “humanitarian aid to the children.”

[Armando Guerra]

but the Court has never decided whether the same rule applies to the children of aliens whose presence in the United States is temporary or illegal. [That would likely be because the Court understands that it does not have the constitutional power or authority to do this. To recognize the plenary power of Congress in this matter is to recognize that the issue must be decided through the political, not the judicial branches of government.]

You have WAY more faith in this court than I do. They likely haven't ruled because they have not needed to. Jus soli has already carried the day. If Texas were, for example, to be refusing to issue birth certificates to children of illegals, I would expect a federal judge (at the behest of the Obama DOJ) to order Texas to do so. The argument being what you have stated that Congress decides who is a citizen and they have not stated otherwise. If it were to go to the Supreme Court the "wise Latina" would issue the order agreeing the horse has already left the barn. Boehner would just cry about the poor children.

Your points are well reasoned and well presented. I do not disagree with the issues raised. I just have no faith in this Court or Congress to do the right thing and I am not yet convinced that Trump would either (nor even Cruz and I support him).

[CA Conservative]

“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers.”

I am not sure that this quote supports the idea that the children of illegals that are born here are not citizens. Back when I went to school in the 60's and 70's, they taught us how to diagram a sentence. This sentence appears to limit the restriction against birthright citizenship to the families of ambassadors or foreign ministers. The sentence construction makes it appear that the word "aliens" is a clarification of the preceding term "foreigners", not a separate category. As such, the term could be deleted without changing the meaning of the sentence.

So the best reading of that sentence would be, "“This will not, of course, include persons born in the United States who are foreigners who belong to families of ambassadors or foreign ministers.” So it appears that the ONLY foreigners being excluded from birthright citizenship by this statement were the families of diplomats.

Note that I am not in favor of birthright citizenship - just pointing out that this quote does not support the argument against it.

[CA Conservative]

And Donald Trump will use a substantial portion of those remittance payments to fund the building of the Trump Wall!

Not unless Congress approves a tax on those remittances - Trump could not do so himself.

Now, there may be other ways a president could recoup the cost of building the wall without the assistance of Congress - withholding foreign aid payments, etc. - but no president could constitutionally impose a tax on remittances on his own.

[caww]

...”Am I alone in thinking that this is a horrifically corrupt, deranged system of governance that has completely departed from constitutional requirements — to which each legislator (and judge) has sworn an Oath of Office to uphold and defend?”.....

It's not just this nation Betty.....there's a grand shift occurring Internationally overall....and it's a co=operative effort.....evidence of is the huge immigration of nations now...it's not something unplanned....anymore than what we have seen Obama do on our borders....they're shifting the worlds populations.

[DiogenesLamp]

Here’s another one for you two. Jump right in. Let the rest of Free Republic know what you think.

[Cheerio]

AMEN - carefully researched, well written and presented so anyone can understand the issue.

[DiogenesLamp]

I am not sure that this quote supports the idea that the children of illegals that are born here are not citizens. Back when I went to school in the 60's and 70's, they taught us how to diagram a sentence. This sentence appears to limit the restriction against birthright citizenship to the families of ambassadors or foreign ministers. The sentence construction makes it appear that the word "aliens" is a clarification of the preceding term "foreigners", not a separate category. As such, the term could be deleted without changing the meaning of the sentence.

This is a reasonable conjecture. I think I have seen clarifications from Senator Howard that indicated he didn't care if they were naturalized or not, which clarifies this against the meaning offered.

However, Chief author of the 14th amendment Representative John Bingham makes it very clear that he has no intention of granting citizenship to the children of foreign nationals.

Who are natural-born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth — natural born citizens. There is no such word as white in your constitution. Citizenship, therefore does not depend upon complexion any more than it depends upon the rights of election or of office. All from other lands, who by the terms of your laws and compliance with their provisions become naturalized, and are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens.

And here is another quote from John Bingham:

..“[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . . ”

It is reasonable to believe that this is the opinion he shared with the other members of congress when the Amendment was being drafted and debated.

[5th MEB]

Time to get a rope, or lots of ropes.

[Jim Robinson]

Bump!

[Jacquerie]

A most excellent vanity.

[hosepipe]

Time to get rid of such folks, time to remove them from public office.It’s time to bring in new national leadership, who understand and love the United States of America, “warts and all.”We aren’t a “perfect union.” But we have ever strived towards that end.Let’s keep on doing that. Let’s make America great again.

---

America CAN NEVER be great again UNTIL the democrat party is exposed and some LIVING members punished for the most heinous crimes against the American people for more than a hundred years..

AND........ the republicans that have been complicit with them..

THEN we can start over.. clean and fresh.. until then America will never be great..

for sure Donald will never do it, I wonder what HE thinks a Great America is like..

Probably he thinks CANADA is great.. he loves their health care..
as do most RINOs..