Posted on 09/04/2015 10:49:16 AM PDT by WilliamofCarmichael
A great brief history leading to the 14th Amendment including comments from the members of Congress at the time. But unfortunately "the intent of the Citizenship Clause was somewhat mixed, leaving the Supreme Court to determine its construction." However.."The Supreme Court has not directly addressed the question of whether the children of illegal immigrants are eligible for birthright citizenship under the Fourteenth Amendment. In INS v. Rios-Pineda (1985), the Court said in dicta, or language not directly part of the holding in the case, that children born in the United States to illegal immigrants are citizens. 47 The Court did rule in Plyler v. Doe (1983) 48 that another part of the Fourteenth Amendment, the Equal Protection Clause, does apply to illegal immigrants because they are 'persons within the jurisdiction' of a state. This is a different legal standard than that used for the Citizenship Clause." And the article continues on into our day of swarms of ILLEGAL aliens, birth tourism, and what other countries have done. I as a layman absent any training in law researched text from three cases mentioned in the article and included some internal links among the text of the three to illustrate that the Court has not directly addressed the question of birthright citizenship for children of ILLEGAL immigrants; hover for some definitions.
[E]ach of the thirteen states had its own rules for citizenship in that state, which then formed the basis of national citizenship. . . . the Fourteenth Amendment . . . added to the Constitution, for the first time, a definition of both national and state citizenship.
. . . in a series of revisions in the Senate the Citizenship Clause was altered and its intention became unclear. Some legislators believed that the amendments new phrase, subject to the jurisdiction thereof, meant exactly the same thing as the language in the Civil Rights Act: not subject to any foreign power. Senators Lyman Trumbull of Illinois and Reverdy Johnson of Maryland were very explicit on this issue. Said Trumbull:What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else; that is what it means.
The linked document is short, concise, and summarizes and explains much that has been in articles posted here. The reply below is about three of the cases mentioned in the article and is what I have added. Hover for some definitions.
United States v. Wong Kim Ark (1898)
I believe it is true that there has never been before the Supreme Court the issue of citizenship specific to children born here of ILLEGAL aliens, or of mothers legally here but with the intention of returning to their home country with their "American citizen" babies. I include currently in the status of overstaying visas as ILLEGAL aliens.
United States v. Wong Kim Ark (1898) was about an adult male born here. The alien parents resided here legally. INS v. Rios-Pineda (deported ILLEGAL alien parents of children born here) contained the remark or observation that children born here are "within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States;" it was in dictum I believe . . . but used by some to be a holding and though birthright citizenship had, at most, incidental bearing on the case nevertheless the remark is assumed to be a Court ruling. Apparently. Plyler v. Doe (1982) was simply about all children no matter what are entitled to a public education. But there was that famous Footnote 10.
Why was an incidental remark or observation with a narrower meaning in United States v. Wong Kim Ark labeled in dictum (See below United States v. Wong Kim Ark "'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.") and the aforementioned incidental remark with the broad meaning considered, a holding? Why didn't the broad meaning also evoke Chief Justice Marshall to explain:
"It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."
United States v. Wong Kim Ark text made the point over and over that any child born in the Country is a matter of common law location, location, location and therefore "is as much a citizen as the natural-born child of a citizen;" jus solis
But
United States v. Wong Kim Ark text recognized that there can be exceptions. It excepted children of foreign sovereigns or their ministers, "or of enemies within and during a hostile occupation of part of our territory." It even included two other exceptions: born on foreign public ships and "children of members of the Indian tribes owing direct allegiance to their several tribes."
United States v. Wong Kim Ark text noted that "issue born abroad . . . of American citizens . . . should inherit, to some extent at least, the rights of their parents;" jus sanguinis an exception to common law? BTW United States v. Wong Kim Ark included this "depending on birth within the realm [common law], [was] originally founded on feudal considerations"; like compliant servile obedient subjects (Democratic votes) and cheap labor? The two Parties needed votes and cheap labor in the 19th Century.
Two other cases are Plyler v. Doe; and INS v. Rios-Pineda.
In INS v. Rios-Pineda seemed like every time the ILLEGAL alien mother's child born here was mentioned there was included a remark that the child "is a citizen of the United States." Did that remark have a bearing on the case? I do not think so I believe the couple lost the case.
Plyler v. Doe contains the Footnote: with the observation 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." [Begin Plyler v. Doe quotes] Syllabus Held:
. . . [Footnote 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 169 U. S. 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 169 U. S. 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. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912). [end Footnote 10 quotes. Return to Plyler v. Doe top] . . . . [Begin United States v. Wong Kim Ark quotes] . . .
In a very recent case, the Supreme Court of New Jersey held that
the Fourteenth Amendment has failed to accomplish its purpose, and
The foregoing considerations and authorities irresistibly lead us to these conclusions:
To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.. . . . [End of United States v. Wong Kim Ark quotes Return to Footnote 10] |
Citizenship follows the parents, not what piece of land they happen to be over when a kid drops out of a woman.
Look up 31 CFR 515.300 and 31 CFR 515.299. By federal regulation any child born in the US is a citizen. Those same regulations can be changed so that any child born in the US to an illegal immigrant is not a citizen.
You can’t change it for anyone already born, that would be an ex-post-facto law. You can change it quite simply for future births.
showing 515.301 through 515.339
515.300 and 515.299 are not found on this Cornell site.
I used google to
site:www.ecfr.gov/ 515.301
found it then I searched for
site:www.ecfr.gov/ 515.300
site:www.ecfr.gov/ 515.299
Not found on both.
Are there more than one set of these Title 31 data? I have never searched CFR before.
Interesting...
I am not at the computer where I have them bookmarked. I’ll have to wait until Tuesday. I have them printed out and bookmarked on my pc at work.
I found the text, don’t have the bookmarks.
31 CFR 515.329
515.329 Person subject to the jurisdiction of the United States.
The term person subject to the jurisdiction of the United States includes:
(a) Any individual, wherever located, who is a citizen or resident of the United States;
(b) Any person within the United States as defined in § 515.330;
(c) Any corporation, partnership, association, or other organization organized under the laws of the United States or of any State, territory, possession, or district of the United States; and
(d) Any corporation, partnership, association, or other organization, wherever organized or doing business, that is owned or controlled by persons specified in paragraphs (a) or (c) of this section.]
[50 FR 27437, July 3, 1985, as amended at 68 FR 14145, Mar. 24, 2003]
31 CFR 515.330
515.330 Person within the United States.
(a) The term person within the United States, includes:
(1) Any person, wheresoever located, who is a resident of the United States;
(2) Any person actually within the United States;
(3) Any corporation, partnership, association, or other organization organized under the laws of the United States or of any State, territory, possession, or district of the United States; and
(4) Any corporation, partnership, association, or other organization, wherever organized or doing business, which is owned or controlled by any person or persons specified in paragraphs (a)(1) or (a)(3) of this section.
(b) [Reserved]
[28 FR 6974, July 9, 1963, as amended at 68 FR 14145, Mar. 24, 2003]
This shows amendments as current as 2003. Why would they disappear without at least an amendment reference. If they were removed there should be a searchable record of that.
Extremely curious. I’ve been away from the internet on vacation, but I have a record of successfully looking them up on August 19.
31 CFR 515.329- Person subject to the jurisdiction of the United States.
§ 515.329 Person subject to the jurisdiction of the United States. The term person subject to the ... amended at 68 FR 14145, Mar. 24, 2003] Section 515.329 ...
31 CFR 515.330- Person within the United States.
§ 515.330 Person within the United States. (a) The term person within the United States, includes: ... 2003] Section 515.330 ...
Thanks again.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.