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.

[CA Conservative]

Forgive the imprecise language. Of course it is a republic, more precisely a constitutional democratic republic. However, that verbal faux pas does not negate the point I was making...

[Hostage]

Go disagree with somebody else. I am not available to you. That means don’t bother me anymore.

[Rome2000]

The Republic died in 1865 when Lincoln murdered the sons of the FOUNDERS and became the first American dictator.

We are post constitutional and the law is whatever the guy with the guns and the power says it is.

It’s time to clean house and ensure the marxists and baby killers and homosexuals and illegal alien supporters and bureaucrats are not only purged but never have the opportunity to wield power again.

The party in Washington is over. It us against them.

No mercy.

[Terry L Smith]

dear phil,

yup!

[DiogenesLamp]

New people. People who haven't been exposed to you and your anti-American/anti-History/anti-Common Sense/anti-fact opinions.

You need a good dose of them. They, you, not so much.

[betty boop]

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

That would be simple justice. :<)

I just heard today that Mexico has filed a blistering complaint with the federal government that certain hospitals on the southern border were not issuing birth certificates to the children of their nationals born on U.S. soil, and demanding the federal government compel them to do so.

What chutzpah!!!

Again, the Reconquista comes to mind: Mexico could not and cannot defeat us militarily; but they can defeat us demographically.

One anchor baby is ground zero for multi-generational chain migration into the United States, in an ever-expanding geometric progression. The United States simply cannot afford this — economically, fiscally, culturally.

But the good news is an Article V Convention of the States probably would not have to put repeal of the Fourteenth Amendment on its agenda. Congress already has the power to address the citizenship issue, granted in Article I, Section 8. And reinforced in Section 5 of the Fourteenth Amendment itself — "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article" — all of the previous four Sections.

The bad news is, Congress evidently is loathe to do its duty here. Which appears simple enough: Just clarify what Section 1's "and under the jurisdiction thereof" means. And it turns out the Supreme Court defined it, in 1873 (the Slaughterhouse Cases [83 U.S. 36, 73 {1873}], which was a Fourteenth Amendment case mainly dealing with the "privileges or immunities" clause).

Referring to the Framers' intent (and the Fourteenth had quite recently been ratified, in 1868; so SCOTUS' memory was likely fresh on these matters), the Court wrote:

“The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” (Emphasis added)

All Congress has to do is secure the border and define U.S. citizenship to reflect this understanding of U.S. "jurisdiction."

Seems simple enough.

But methinks we'd probably need to get a brand-new Congress to get that work done.

Meanwhile, Congress defers to the whims of the president, whose immigration policy is — shall we say? — extraordinarily permissive and whimsical.

[betty boop]

Note "and subject to the jurisdiction thereof" is itself NOT defined.

This is the very issue we need to clear up.

Thanks so much for the link, philman_36!

[DiogenesLamp]

had ALREADY BECOME CITIZENS BY OTHER MEANS;

Irrelevant to the point. None of that addresses the facts of what was the law. If you were an Indian after 1868, you weren't recognized as a citizen.

Citizenship was granted in a piecemeal fashion before the Act, which was the first more inclusive method of granting Native American citizenship. The Act did not include citizens born before the effective date of the 1924 act, or outside of the United States as an indigenous person, however, and it was not until the Nationality Act of 1940 that all persons born on U.S. soil were citizens.

Yes, very interesting tidbits of information that are wholly secondary to the point.

If the US Constitution did not grant citizenship to Indians "not taxed" then it cannot be construed to do so to foreign Indians who are "not taxed."

It demonstrates that being subject to our laws, and being subject to our jurisdiction as articulated in the 14th amendment, are not at all the same thing.

The jurisdiction referred to in the 14th amendment is a form of jurisdiction that extends beyond mere subject to our laws. It is a jurisdiction of compulsory allegiance. That is what it is.

Foreign transients do not meet this level of jurisdiction, and never did.

[Tennessee Nana]

PING

[betty boop]

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.

Dear marron, thank you so very much for these valuable insights!

[betty boop]

Qualifying clauses are a necessary part of writing to convey meaning and clarity.

So true. Which is why it's so maddening to me that no one seems to want to clarify the necessary qualifying clause: "and under the jurisdiction thereof.'"

Thanks so much for your informative essay/post!

[betty boop]

...evidence ... 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.

I am mindful that a huge driver of the current migrations is the devastation of the Middle East, largely due to American disengagement from the region under the Obama Administration.

He's been so terribly helpful to ISIL and Ayatollah Khamenei.... People are literally dying to leave those parts of the world.

And as far as the prez is concerned, there's no such thing as a U.S. border.

Pretty sad, huh???

[caww]

Yep.....and that “Invasion” of other countries, including ours will continue at a faster pace..it's not going to slow down. It's not just refugees crossing the borders. Most are not traveling with an documentation having learned it's best not to be identified for then they cannot be deported. I do fear for the World as Islam is going ground by population/invasion and nothing is stopping it....their bases are already present in most Western nations and governance as well....it's not going to take much to topple everything when the time comes.

[betty boop]

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.”

We're being blackmailed; and Congress caves.

Of course, its Left Progressive members will delight in this fresh opportunity to provide "humanitarian relief, for the chillun" — just so long as it goes to countries who cannot provide a decent life, a decent standard of living, necessary infrastructure, medical and educational resources, etc., etc., to its own nationals. So they export their problems North, to the U.S. border.

And although Mexico, which these "exports" must traverse before they can get there, rigorously enforces its own immigration laws (based on the jus sanguinas principle), its own southern border is completely permeable by these hordes rising from their South.

Totally sick-making.

Thanks, liz, for the eye-opening essay/post.

[betty boop]

Thomas Jefferson defined "aliens" very clearly and succinctly: “Aliens are the subjects of a foreign power.”

So they are not simply "foreigners."

[Godebert]

Great article. Bookmarked.

[hosepipe]

“Invasion” of other countries, including ours will continue at a faster pace..it’s not going to slow down.

---

Pretty smart of the One Worlders brilliant..

Global illegal alien insurrection... true in Europe, here and everywhere.. even mexico..

One World Socialism is at hand....
Pretty soon where-ever you are..... will not be where-ever you are..

It will be some place ELSE.. brilliant really..
AND republicans have ZERO idea this is going on... AT ALL..
On purpose with malicious intent.. GLOBALLY..

And TRUMP is On Board with this.. after all TAXES is just the cost of doing business.. Creeping and creepy FASCISM..

The FBI ia asleep.. and the CIA has Altzheimers..
And OBAMA is the one that flew over the Cuckoo’s Nest..

[caww]

oh now that's interesting....that would make the Muslims “aliens” because they are “subjects” of the ME powers that be under the Islamic ideology....which is diametrically opposed to our Constitution....whose agenda is to "Conquer and rule all nations".

Just as you stated in you post..... Thomas Jefferson defined “aliens” very clearly and succinctly: “Aliens are the subjects of a foreign power"......So they are not simply “foreigners.”

[caww]

By the time the populations and governments have been infiltrated through these invasions under the cloak of diversity... and their numbers multiply at the rates they are now....this will be a rapid takeover so fast peoples heads will do more then spin.....and nothing to stop it when it occurs.

Federal Government 'Subsidizes' Islamic Halal Food in Public Schools....Legislators in both New York City and New York state have proposed mandating public schools to serve halal food. In February 2014, New York City Councilman Rafael Espinal introduced a resolution requiring New York City schools “to provide a halal lunch menu option.” Three separate bills have been introduced in the New York State Assembly during the current (2015-16) term that would require public schools in big cities to offer halal lunch options. One of them requires that the food be provided to Muslim students “at no cost.”

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Seems to me nobody is keeping them from having Halal food, so why is Obama busy violating the Constitution again...because nobody is stopping this creeping Sharia Law into our nation...

http://pamelageller.com/2015/08/federal-government-subsidizes-halal-food-in-public-schools.html/

[caww]

This shows the Extent of Influence of the Infiltrated Islamic Trojan Horses in the administration Machinery....
Tax Payers Money is getting spent for The Bringing Up the Destructive Elements of the Country.