What Did the 14th Amendment Congress Think About ‘Birthright Citizenship’?

the American Spectator ^ | 8.24.15 | Mark Pulliam

[RC one]

The issue is whether children born in the United States—even if their parents are foreign nationals who entered this country illegally—automatically become citizens. Current law supposes that they do—a concept termed “birthright citizenship.” Many people erroneously think this concept is dictated by the Constitution or enshrined in a U.S. Supreme Court decision. Not so. Section 1 of the 14th Amendment—the Citizenship Clause—states that “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.”

When Senator Lyman Trumbell (D-IL), Chairman of the Judiciary Committee (and a key figure in the drafting and adoption of the 14th Amendment), was asked what the phrase “and subject to the jurisdiction thereof” meant, he responded: “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” Only U.S. citizens owe “complete allegiance” to the United States. Everyone present in the United States is subject to its laws (and hence its “jurisdiction” in a general sense), but only citizens can be drafted or prosecuted for treason...

Senator Howard agreed with Trumbell’s explanation: “I concur entirely with the honorable Senator from Illinois [Trumbell], in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, …; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” This exchange supports very strongly the conclusion that the Citizenship Clause was intended to mean the same as the Civil Rights Act of 1866—excluding children born in the United States to foreign nationals.

[nathanbedford]

In order to prevail in doing away with birthright citizenship for children of illegal immigrants, the following must be won:

1. A nearly century long practice, at least the modern practice, of automatically issuing birth certificates to children born in the United States of non-diplomat (and evidently even in some cases involving children of diplomats) parents must be overturned.

2. The conventional wisdom defining the critical phrase, "subject to the jurisdiction" to mean something other than, subject to the laws of the United States. (This is the Yoo interpretation of the meaning of the phrase) must be overturned.

3. The meaning of "subject to the jurisdiction" must turn on some principle other than accident of geography and that almost certainly means determining the "allegiance" of the parents of the child.

4. The legislative history and the case law prior to the Supreme Court's determination in the case of United States versus Wong Kim Ark (1898) is reasonably clear that "domicile" is the determining factor in determining allegiance which, in turn determines jurisdiction. The court held that legally domiciled parents qualified their children for citizenship at birth. It did not speak with respect to parents who were illegally domiciled. If a court decides the matter, it must decide that illegal domicile is not domicile for the purposes of fourteenth amendment jurisdiction.

5. The legislative history and the case law prior to 1898 and the Plyler v. Doe (1982)case seem to hold that domicile even unlawfully achieved qualifies to render the birth child "subject to the jurisdiction." And therefore birthright citizenship ensues.

6. If there is no legislation attempting to redefine domicile as applied to illegal immigrants and their children, the court will have to depart from the common understanding of domicile and declare that illegal domiciles do not qualify as being subject to the jurisdiction under the meaning of the fourteenth amendment.

7. If Congress by legislation authorized by the provisions of article 1 section 8 granting Congress plenary power over "naturalization" or under provisions of the fourteenth amendment empowering Congress to enforce the provisions of the amendment against the states, the court must rule whether Congress has the power to define the scope of "domicile."

8. The holding of the Wong case is that Congress does not have the power by treaty (in that case with the nation of China respecting the naturalization of Chinese people) to change the provisions of the fourteenth amendment which create birthright in children born in America of legal immigrants. In order to prevail, this doctrine would have to be distinguished as applied to illegal immigrants to hold that Congress, which is without the power to amend the fourteenth amendment as it applies to legal immigrants, in fact has that power when applied to illegal immigrants. The dicta in the Plyler v. Doe (1982) case suggests the contrary of this proposition.

In assessing the probabilities of depriving children of illegal immigrants of birthright citizenship, the following should be considered: A) an executive order instructing the State Department not to issue passports etc. B) Congressional statute purporting to redefine domicile for illegal immigrants from the current conventional understanding. In assessing these probabilities one should understand that the four leftist Justices will certainly vote to retain automatic birthright citizenship based on geography. Even if they do not, they are almost certain to vote to declare that domicile is the same for illegal immigrants as for legal immigrants meaning that birthright citizenship will ensue. The votes of Justices Kennedy and Roberts are uncertain at best, but since race is involved it is not unreasonable to believe that they will be politically correct. The probabilities of succeeding in the Supreme Court are, therefore, not great.

Ted Cruz is correct but not complete. Conservatives should proceed with legislation and, assuming a victory on the national ticket, should also proceed with an executive order as described. All avenues should be pursued. Finally, by Article V a constitutional amendment should be advanced right now without reference to the federal Congress.

[CSM]

Exactly right and thank you for posting.

I’d add to the article that the authors of the 14th later clarified that it was not even intended for the “tribal peoples.” They understood that the Indians had their allegiences alligned with their Tribe, so they were not eligible to be considered “natural born citizen.”

Congress passed legislation later to change that. This issue resides wholly with Congress. The Constitution actually gives them the broadest possible power for this issue. It is actually “planary,” meaning “fully.” The Executive branch and Judicial branch is meaningless with regards to this issue.

[tanknetter]

Keep in mind that the legislative intent of the 14th Amendment was somewhat more complex than that.

There was a groups of opponants who did so based on their belief that it would convey exactly the kind of general and broad birthright citizenship Progressives claim it does.

And there was a group of supporters who did so for precisely that reason: they were from California and saw great political opportunity in having the children of Chinese immigrants automatically conferred with citizenship upon birth.

Not that I disagree with the premise of a limited interpretation, mind you. Just that the matter isnt as cut and dried as some on both sides of the argument would gave you believe.

[Comment Not Approved]

Your analysis shows the improbability of ever sorting this out.

"A) an executive order instructing the State Department not to issue passports etc."

If that EO happens I'll be more hopeful than I am now. I may even live long enough to see this sorted out. But with the current invasion underway ... I'm not betting on it.

[jetson]

After listening to Levine the other day something dawned on me. The law passed by our congress gave the American Indian's certain rights due to the fact that they are a nation within themselves and we strongly stand behind the ruling by allowing privileges to the tribes such as gambling casinos and other goodies. Then why is the anchor baby law treated with such carelessness? The law is spelled out with very much the same language as the American Indian laws so why so much confusion? The anchor baby law does not apply to any race other than the negro race after the civil war.

[CpnHook]

You are a complete coward if you do not respond to this.

You are such a buffoon. Hey, DumbDumb, if I'm posting on other threads, then you might be able to insinuate that I"m ducking out. But when I'm not posting at all, it just means I've not been here since you last posted.

Do you really want to play this game? Do you know how many posts I've made where there's been no reply by you at all? Like this one where I skewered your utterly naïve question on why the 14th Amendment was passed?

Do you want me to count the number of posts I've made where your retort has been an evasive "this is not worthy of my consideration" or "I'm ignoring your wall of text?" Like every other point of contention, I will win that exercise.

Again, what you level at me is projection as you look in the mirror.

[DiogenesLamp]

Do you really want to play this game? Do you know how many posts I've made where there's been no reply by you at all?

An idiot who misrepresents things at every opportunity is not entitled to a reply. I have no respect for you. I consider you to be a particular class of fool who thinks he knows something, but really does not.

You are the sort of person Reagan referred to when he said:

"The Trouble with our opponents is not that they are ignorant... it's that they know so much which isn't so. "

You currently have the bulk of Free Republic against you on your theories regarding the meaning of the 14th amendment, and I just couldn't wait to see you get the sort of responses to which your opinion *IS* entitled.

In other words, I want to enjoy watching you get your @$$ whipped. So don't keep us waiting. Go attempt to defend your position. :)

[CpnHook]

An idiot who misrepresents things at every opportunity

Now there you go again . . .

Identify ONE thing (with documentation) that I've misrepresented. Just one.

I call your bluff on these sorts of statements every time. I really don't know why you keep trying.

I just couldn't wait to see you get the sort of responses to which your opinion *IS* entitled.

You mean like the guys claiming that the U.S. can't exercise jurisdiction over an alien here unless the country of that person's nationality grants that jurisdiction upon entry? Yeah, some really insightful stuff going on there.

But tone deaf people think other tone deaf people sound good. No surprise if you think he's making a point.

[DiogenesLamp]

I am not interested in attempting to reason or trade facts with you. I am only interested in you going and telling other people what you think, so they can also verbally beat your stupid @$$.

I have nothing to prove to myself, and I don't consider what you think to be the least bit interesting. I just want to see you try your lines on the vast majority of people on this website who think your opinion is nuttery inspired crap.

Don't keep us waiting. Dive right in on one of the numerous 14th amendment threads that have been opened since you have been AWOL.

I'm sure others could use a good laugh as much as me. :)

[CpnHook]

I am not interested in attempting to reason or trade facts with you.

I thought perhaps you would try that at SOME point. But after two year waiting, I suspect it's not happening.

Don't keep us waiting. Dive right in on one of the numerous 14th amendment threads

As always, Chief, I'm already two steps ahead of you.

At this point 2 out of the final 3 posts on the thread are mine. So far no one's laughed. And no one's attempted to demonstrate any point in error.

Now, you (for about the 10th time on this Board) have just claimed I'm not worth your time to reply. And in 9 of out those 10 times you've later jumped in anyway. Then when you get boxed in again, you claim you're not going to reply to me because it's not worth your time, etc., etc.(Do you ever get dizzy moving around your circle?

So I trust this time you're for sure going to sit back and let others do the heavy lifting, right?

[CpnHook]

Dive right in on one of the numerous 14th amendment threads that have been opened since you have been AWOL.

AWOL? Funny. In the 2 years I've been posting, that's been my pattern: I post for a short time, then I wander off for a much longer time and enjoy the rest of my life.

You make a fuss that I wasn't here, but then when I return you make a fuss how you're not going to reply to 90 percent of the arguments (and sources!) I rub your nose in.

You are a strange person.

[DiogenesLamp]

At this point 2 out of the final 3 posts on the thread are mine. So far no one's laughed.

I guess it never occurred to you that this thread is old and mostly forgotten. In order to get people laughing at you, they must first see what you've written.

Go someplace more current, and I suspect you will find all the laughter you want. :)

So I trust this time you're for sure going to sit back and let others do the heavy lifting, right?

One saves talent for where it is needed. What you need is argumentum ad nauseum, rather than any sort of rational or thoughtful rebuttal. You'll get plenty enough of that former from others, but it is not my stock in trade, and I have little patience for someone who thinks they know what they are talking about when they don't.

[DiogenesLamp]

You make a fuss that I wasn't here, but then when I return you make a fuss how you're not going to reply to 90 percent of the arguments (and sources!) I rub your nose in.

I consider you a fool, and so I really don't care to attempt to reason with you. This does not stop me from wanting to see others pummel you. Go argue with people who don't yet know you! Get to them before they find out that it's a waste of time!

[CpnHook]

I guess it never occurred to you that this thread is old and mostly forgotten.

I thought up to a moment ago that this was the thread I was on in July. Then I noticed the titles in this latest flurry varied. Pinging me on a thread I hadn't posted on and implying I should be replying was confusing.

Go someplace more current

The 14th Amendment thread I've posted on was started today. Is that current enough for you? So far, no laughter. You're wrong again. Go figure.

but it is not my stock in trade,

Your stock in trade is to make unsubstantiated claims, exalt your personal opinion over all others, duck any point you can't answer, and hide all of this under a blanket of misplaced "logical fallacies" and ad hominem.

You are predictable in the ways you avoid things and fail. That's why so many times I've been able to post something and predict the way you will avoid it.

[DiogenesLamp]

I think that regardless of what happens, you will claim to have predicted it. Of course some predictions are relatively easy. That a knowledgeable and astute fellow will not waste a great deal of trouble trying to reason with you is a fairly safe prediction.

Good for you. You must needs find something of which you can feel proud, albeit undeservedly. :)

[CpnHook]

You must needs find something of which you can feel proud

I already knew how to win a debate. I'm running on auto-pilot with you.

One thing I have noticed since 2013 is I've gotten you to cease your erroneous argument that Horace Gray erred in not considering 39th Congress legislative history. Nope. Howard, Trunbull, Wilson and a host of others can be lined up to state the law just as Gray recited it.

You still haven't figured out what "existing law" they had in mind when they kept saying they were affirming it. All the sources cited (like Lynch v. Clarke, Blackstone, Rawle) cite the law as I've stated it, and as Gray stated it.

And this new 14th Amendment thread takes us right back to WKA. Which is why I suspect you will stay away; you know it's not one you have anything to say at this point.

As they say "lose the 39th Congress and you lose the war." Now, go find a BIG picture of John Bingham and try to make yourself feel better.

[DiogenesLamp]

I’ve moved to a different thread. No point in whipping your @$$ if no one is around to see it.

[CpnHook]

The ink is not even dry on your latest "you're not worth my time to engage" comment when you jump back in.

You make it impossible not to mock you.

[DiogenesLamp]

The ink is not even dry on your latest "you're not worth my time to engage" comment when you jump back in.

You must not be grasping the fact that I'm talking past you.

I'm not reasoning with you, i'm showing you to be a fool.

[CpnHook]

You must not be grasping the fact that I'm talking past you.

Oh, I grasp that in many cases you side-step the points I make and authorities I cite. You'll recall all those posts where I say you're striking your ostrich pose. And your new technique -- the Appeal to Unidentified Evidence -- isn't so much talking past me as it is not talking at all.

I'm not reasoning with you, i'm showing you to be a fool.

And you do that by ducking points, avoiding substantive argument, and resorting to ad hominem? Every time you've claimed I've ignored facts or misstated them or "shoveled aside" your arguments (pretty snow plow picture and all) I've challenged you to NAME ONE INSTANCE and document that. Each time you've failed.

So your not being able to substantiate a single point shows me to be a fool? Gosh, how does that work? You've got your Projection Machine flashing on the big screen again.