Posted on 02/06/2025 11:54:42 AM PST by AJFavish
Because of the current president and the current composition of Congress, we may never have a better opportunity to eliminate federal funding for illegal aliens in K–12 government schools.
(Excerpt) Read more at americanthinker.com ...
<>Unfortunately illegal aliens are allowed by law . . . <>
Not by law, but by a few unelected lawyers.
[American Thinker] Yes, it’s legal to strip school funding for illegal aliens
This nonsense was flayed by the United States Supreme Court in a case directly on point.
https://www.loc.gov/item/usrep457202/
Plyler v. Doe,, 457 U.S. 202, 210-16 (1982)
No. 80-1538. Argued December 1, 1981-Decided June 15, 1982*
Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 210-230.(a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 210-216.
(b) The discrimination contained in the Texas statute cannot be considered rational unless it furthers some substantial goal of the State. Although undocumented resident aliens cannot be treated as a "suspect class," and although education is not a "fundamental right," so as to require the State to justify the statutory classification by showing that it serves a compelling governmental interest, nevertheless the Texas statute imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. These children can neither affect their parents' conduct nor their own undocumented status. [...]
[210]
Opinion of the Court, Section II
[...]
II
The Fourteenth Amendment provides that "[n]o State shall ... 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." (Emphasis added.) Appellants argue at the outset that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessy v. Mezei, 345 U. S. 206, 212 (1953); Wong Wing v. United States, 163 U. S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U. S. 67, 77 (1976).9
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9 It would be incongruous to hold that the United States, to which the Constitution assigns a broad authority over both naturalization and foreign affairs, is barred from invidious discrimination with respect to unlawful
[211]
Opinion of the Court
Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase "within its jurisdiction."10 We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized
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aliens, while exempting the States from a similar limitation. See 426 U. S., at 84-86.
10 Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States .... ." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States."' Id., at 687.
Justice Gray concluded that "[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States." Id., at 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, 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. See C. Bouvé, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).
[212]
that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.
"The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: '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.' These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the protection of the laws is a pledge of the protection of equal laws." Yick Wo, supra, at 369 (emphasis added).
In concluding that "all persons within the territory of the United States," including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. Wong Wing, supra, at 238.11 Our cases applying the Equal Protection Clause reflect the same territorial theme:12
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11 In his separate opinion, Justice Field addressed the relationship between the Fifth and Fourteenth Amendments:
"The term 'person,' used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws .... The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar—in face of the great constitutional amendment which declares that no State shall deny to any person within its jurisdiction the equal protection of the laws." Wong Wing v. United States, 163 U. S., at 242-243 (concurring in part and dissenting in part).
12 Leng May Ma v. Barber, 357 U. S. 185 (1958), relied on by appellants, is not to the contrary. In that case the Court held, as a matter of statu-
[213]
"Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities,—each responsible for its own laws establishing the rights and duties of persons within its borders." Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 350 (1938).
There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection" and therefore available to a larger class of persons.
To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all castebased and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection.
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tory construction, that an alien paroled into the United States pursuant to § 212(d)(5) of the Immigration and Nationality Act, 8 U. S. C. § 1182(d)(5) (1952 ed.), was not "within the United States" for the purpose of availing herself of § 243(h), which authorized the withholding of deportation in certain circumstances. The conclusion reflected the longstanding distinction between exclusion proceedings, involving the determination of admissibility, and deportation proceedings. The undocumented children who are appellees here, unlike the parolee in Leng May Ma, supra, could apparently be removed from the country only pursuant to deportation proceedings. 8 U. S. C. § 1251(a)(2). See 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 3.16b, p. 3-161 (1981).
[214]
Although the congressional debate concerning § 1 of the Fourteenth Amendment was limited, that debate clearly confirms the understanding that the phrase "within its jurisdiction" was intended in a broad sense to offer the guarantee of equal protection to all within a State's boundaries, and to all upon whom the State would impose the obligations of its laws. Indeed, it appears from those debates that Congress, by using the phrase "person within its jurisdiction," sought expressly to ensure that the equal protection of the laws was provided to the alien population. Representative Bingham reported to the House the draft resolution of the Joint Committee of Fifteen on Reconstruction (H. R. 63) that was to become the Fourteenth Amendment.13 Cong. Globe, 39th Cong., 1st Sess., 1033 (1866). Two days later, Bingham posed the following question in support of the resolution:
"Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?" Id., at 1090.Senator Howard, also a member of the Joint Committee of Fifteen, and the floor manager of the Amendment in the Senate, was no less explicit about the broad objectives of the Amendment, and the intention to make its provisions applicable to all who "may happen to be" within the jurisdiction of a State:
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13 Representative Bingham's views are also reflected in his comments on the Civil Rights Bill of 1866. He repeatedly referred to the need to provide protection, not only to the freedmen, but to "the alien and stranger," and to "refugees ... and all men." Cong. Globe, 39th Cong., 1st Sess., 1292 (1866).
[215]
amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another .... It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction." Id., at 2766 (emphasis added).
Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction—either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States—he is entitled to the equal protection of the laws that a State may choose to establish.
Our conclusion that the illegal aliens who are plaintiffs in these cases may claim the benefit of the Fourteenth Amendment's guarantee of equal protection only begins the inquiry. The more difficult question is whether the Equal Protection Clause has been violated by the refusal of the State of Texas to reimburse local school boards for the education of children who cannot demonstrate that their presence within the
[216]
United States is lawful, or by the imposition by those school boards of the burden of tuition on those children. It is to this question that we now turn.
Agreed.
An appendectomy, for example. Broken bones. True emergency situations.
I remember when you were writing those articles.
It seemed that logic died with Mariana Pfaelzer, and she was dead set on never letting anything happen that she didn’t want. She’s a villain in state history, and a person who discredited the entire Federal judiciary.
“Pfaelzer has been accused of deliberately putting her own political and social views ahead of the law”
And being such an imperious little character, she refused to allow her photo to ever be published. Now that she’s gone, there are pictures of her, but many don’t match. I have no idea what she actually looked like.
Your points about her decision are of course all rational, but she threw rationality out the window and abused her power to push her agenda. Maybe she thought it would be somewhat rolled back at the Appellate level, but was miraculously saved by Davis’ end run using the 9th Circuit Arbitration stunt.
I don’t know if Schwarzenegger could have dropped the arbitration agreement and appealed to the Supreme Court. But it was obvious that he had no intention of doing that. So that was the last chance for a California resolution.
Think that, like the Eastman/Meese position on Birthright Citizenship, such pushback will have to come from either another state or a President such as the one we have now, and the people around him. We have four years to strike and it’s off to a good start. It’s the best chance we’ve had in 35 years. But who knows...the other side will go completely violent and the leftover Establishment types will run for cover.
I logged onto FreeRepublic back in 2000 when I did a websearch on “Gray Davis is a traitor” and FR came up. They had just made the deal on 187, and I was appalled. A legitimate proposition had passed 60/40 and there was no doubt that it was the will of the people. Yet the slimy SOB conspired with the other side to keep Pfaelzer’s absurd rulings in place, and short circuit the electoral process. Never had I seen anything like that. Ever since, have worked and donated to end it. The lion known as “Don Trump” is the end result. It just shows that we’re not alone, the country is with us.
But the war ain’t over. Really just getting going in earnest.
Thank you for staying in the political fight to save America.
My article refutes your points. Also, the costs are immense. Here is some discussion of the costs, although the author does not adequately evaluate Plyler: https://thehill.com/opinion/immigration/3837385-estimating-illegal-immigrations-cost-to-public-education/
They are not citizens and they don't qualify for free public school education and taxpayers should NOT have to pay for this abuse.
My article refutes your points.
Good luck with your nonsense. You can start by trying to overturn Plyler v. Doe. A magazine article does not overturn a U.S. Supreme Court decision. Take it to court and show the world what you've got.
From Plyler as quoted previously,
Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction—either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States—he is entitled to the equal protection of the laws that a State may choose to establish.
Tell me a bedtime story. I like the one about the great success of Prop 187 in the great state of California, passed November 1994. You can start by recounting your efforts to get Prop 187 enforced in California, or recount why all efforts failed.
Couldn't you just go to court and argue that your magazine article refutes all points holding Prop 187 to be unconstitutioonal?
League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995)
US District Court for the Central District of California - 908 F. Supp. 755 (C.D. Cal. 1995), November 20, 1995
https://casetext.com/case/league-of-united-latin-american-citizens-v-wilson
Summaryholding that state cannot deny public education to children based on immigrant status
Here is what I wrote about Plyler and Prop. 187 in the mid-1990s, explaining why United States District Court Judge Mariana R. Pfaelzer’s decision that several provisions of California’s Proposition 187 violate federal law was incorrect. A shortened version of this article appeared in the Los Angeles Daily Journal, December 18, 1995, at page 6. The Daily Journal is the city’s primary newspaper for the legal community. See
https://allanfavish.com/index.php/illegal-immigration/115-a-decision-under-fire-pfaelzer-decision-prop-187
A magazine article with the absurd title, "Yes, it’s legal to strip school funding for illegal aliens," does not get it done. It remains unconstitutional to strip school funding for illegal aliens, and that is binding precedent in every court except the U.S. Supreme Court. No challenge to Plyler has succeeded.
The Plyler opinion was based on the assumption that the extra spending on illegal aliens caused no harm. The opinion did not create a rule for cases in which there is such harm. As the lawyers say, Plyler can be distinguished. Of course, it can also be overruled. My article simply shows how the Feds and the States can win without having Plyler overruled.
The Plyler opinion was based on the assumption that the extra spending on illegal aliens caused no harm. The opinion did not create a rule for cases in which there is such harm. As the lawyers say, Plyler can be distinguished. Of course, it can also be overruled. My article simply shows how the Feds and the States can win without having Plyler overruled.
14A took the common law rule of jus soli which had been in effect since the founding of the British colonies in America, and put it in the Constitution to place it beyond the authority of the legislature to change. You have to overcome not just Plyler but over 400 years of precedent.
Plyler has withstood all your challenges for thirty years.
From Plyler as quoted previously,
Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction—either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States—he is entitled to the equal protection of the laws that a State may choose to establish.
The common law rule of jus soli has over four centuries of precedent establishing that the applicable interpretation is that all children born on the soil of the sovereign, with the exceptions of the children of ambassadors and the children of hostile foreign occupying forces, are natural born citizens or subjects, depending on the nature of the sovereign.
The Supreme Court has recognized that the traditional formulation of jus soli is the common law rule in both England and the United States, finding that:
at common law in England and the United States, the rule with respect to nationality was that of the jus soli,—that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute . . . .
Each state made the application of the English common law clear in its constitution or statute laws. The language was clear to 18th century colonials. It may not be clear to 21st century dreamers seeking to find the law of European philosophers as their guiding light. I cannot help with the myopia of those who will not see.
Constitution of Connecticut — 1776.
PARAGRAPH 1. Be it enacted and declared by the Governor, and Council, and House of Representatives, in General Court assembled, That the ancient Form of Civil Government, contained in the Charter from Charles the Second, King of England, and adopted by the People of this State, shall be and remain the Civil Constitution of this State, under the sole authority of the People thereof, independent of any King or Prince whatever. And that this Republic is, and shall forever be and remain, a free, sovereign and independent State, by the Name of the STATE OF CONNECTICUT.
Georgia, Act of February 25, 1784
3. Sec. I. Be it enacted, &c. That all and singular the several acts, clauses, and parts of acts, that were in force and binding on the inhabitants of the said province, on the 14th day of May, in the year of our Lord 1776, so far as they are not contrary to the constitution, laws, and form of government now established in this state, shall be, and are hereby declared to be in full force, virtue, and effect, and binding on the inhabitants of this state, immediately from and after the passing of this act, as fully and effectually, to all intents and purposes, as if the said acts, and each of them, had been made and enacted by this general assembly, until the same shall he repealed, amended, or otherwise altered by the legislature: And also the common laws of England, and such of the statute laws as were usually in force in the said province, except as before excepted.
Constitution of Maryland — 1776.
III. That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances, and of such others as have been since made in England, or Great Britain, and have been introduced, used and practised by the courts of law or equity; and also to acts of Assembly, in force on the first of June seventeen hundred and seventy-four, except such as may have since expired, or have been or may be altered by acts of Convention, or this Declaration of Rights — subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State: and the inhabitants of Maryland are also entitled to all property, derived to them, from or under the Charter, granted by his Majesty Charles I. to Cæcilius Calvert, Baron of Baltimore.
Constitution of Massachusetts, 1780
ART. VI. All the laws which have heretofore been adopted, used, and approved in the province, colony, or State of Massachusetts Bay, and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature, such parts only excepted as are repugnant to the rights and liberties contained in this constitution.
Constitution of New Jersey — 1776
XXII. That the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter; and that the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever.
North Carolina, Act of 1778, Chap. 133
2. Be it enacted, &c. That all such statutes, and such parts of the common law, as were heretofore in force and use within this territory, (b) and all the acts of the late general assemblies thereof, or so much of the said statutes, common law, and acts assembly, as are not destructive of, repugnant to, or inconsistent with the freedom and independence of this state, and the form of government therein established, and which have not been otherwise provided for, in the whole or in part, not abrogated, repealed, expired, or become obsolete, are hereby declared to be in full force within this state.
Pennsylvania, Act of 1777
II. Be it therefore enacted, and it is hereby enacted, That each and every one of the laws or acts of General Assembly, that were in force and binding on the inhabitants of the said be province on the fourteenth day of May last, shall be in force from and binding on the inhabitants of this state from and after the tenth day of February next, as fully and effectually, to all intents and purposes, as if the said laws, and each of them, had been made or enacted by this General Assembly; and all and every person and persons whomsoever are hereby enjoined and required to yield obedience to the said laws, as the case may require until the said laws or acts of General Assembly respectively shall be repealed or altered, or until they expire by their own limitation; and the common law and such of the statute laws of England as have heretofore been in force in the said province, except as is hereafter excepted.
Constitution of South Carolina— 1776
XXIX. That the resolutions of this or any former congress of this colony, and all laws now of force here, (and not hereby altered,) shall so continue until altered or repealed by the legislature of this colony, unless where they are temporary, in which case they shall expire at the times respectively limited for their duration.
Patrick Henry, Debates and Other Proceedings of the Convention of Virginia, 2nd Ed., pp. 316-17.
When our government was first instituted in Virginia, we declared the common law of England to be in force.
Virginia, Statute § 1-200, The Common Law, (Code 1919, § 2, § 1-10; 2005, c. 839.)
§ 1-200. The common law.The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.
(Code 1919, § 2, § 1-10; 2005, c. 839.)
Vermont Act of November 4, 1797; An Act, adopting the common law of England, and declaring that all persons shall be equally entitled to the benefit and privilege of law and justice.
Sect. 1. It is hereby enacted by the General Assembly of the State of Vermont, That so much of common law of England, as is applicable to the local situation, and circumstances, and is not repugnant to the constitution, or to any of the acts of the legislature of this state, be, and hereby is adopted law, within this state; and all courts are to take notice thereof, and govern themselves accordingly.
1 V.S.A. § 271, common law adopted
§ 271. Common law adoptedSo much of the common law of England as is applicable to the local situation and circumstances and is not repugnant to the constitution or laws shall be laws in this state and courts shall take notice thereof and govern themselves accordingly.
Northwest Territory, Act of July 14, 1795, A Law declaring what laws shall be in force.
The common law of England, all statutes or acts of the British parliament made in aid of the common law, prior to the fourth year of the reign of King James the first (and which are of a general nature, not local to that kingdom) and also the several laws in force in this Territory, shall be the rule of decision, and shall be considered, as of full force, until repealed by legislative authority, or disapproved of by congress.
Vanderbilt Journal of Transnational Law
Volume 33
Issue 3 May 2000
Article 5
2000
Birthright Citizenship in the United Kingdom and the United States
Michael Robert W. Houston
[excerpt]
Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608)
At 698
1. Exposition of the Territorial Birthright Citizenship Principle:Calvin's Case
Calvin v. Smith (Calvin's Case), decided in 1608, established the seminal exposition of territorial birthright citizenship.7
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7. 77 Eng. Rep. 377 (K.B. 1608) [hereinafter Calvin's Case]. This case was heard by all the justices of the King's Bench and Common Pleas, as well as the Lord Chancellor and barons of the Exchequer-14 justices in all. See Polly J. Price, Natural Law and Birthright Citizenship in Calvin's Case, 9 YALE J.L. & HUMAN. 73, 82 (1997). All but two justices found in favor of Calvin. See id. While Calvin's Case embodies the quintessential explanation of common law territorial birthright citizenship, some historians have asserted that the concept dates back as early as 1290, in the case of Elyas de Rababyn. See id. at 92 n. 109. (noting the rule was assumed to be that all persons born on English soil were the King's subjects). In Elyas, it was assumed that all persons born on English soil were the king's subjects. See id. (citing 9 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 75 (1926)).
United States v. Wong Kim Ark at 169 U.S. 649, 662-63 (1898)
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said: "All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."
Slaughterhouse Cases, 83 U.S. 36, 73 (1872)
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. 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.
U.S. Circuit Court of Appeals: Perkins v. Elg, 99 F.2d 408 (D.C. Cir. 1938)
We think the decision of the lower court is in all respects correct.The law of England, as of the time of the Declaration of Independence, was that a person born in that kingdom owed to the sovereign allegiance which could not be renounced. Many early American decisions applied that as the common law in this country. All agreed that every free person born within the limits and the allegiance of a State of the United States was a natural born citizen of the State and of the United States. And this was undoubtedly the view of Mr. Justice Curtis in his dissenting opinion in the Dred Scott Case, 19 How. 393, 581, 15 L. Ed. 691, in which he said:
"* * * we find that the Constitution has recognised the general principle of public law, that allegiance and citizenship depend on the place of birth."
U.S. Supreme Court: Perkins v. Elg, 307 U.S. 325, 328-329 (1939)
Syllabus
1. A child born here of alien parentage becomes a citizen of the United States. P. 307 U. S. 328.
Opinion of the Court:
First. On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866,307 U. S. 329
14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U. S. 649. In a comprehensive review of the principles and authorities governing the decision in that case -- that a child born here of alien parentage becomes a citizen of the United States -- the Court adverted to the
"inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship."
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