Posted on 11/12/2005 6:52:36 AM PST by Crackingham
Rep. Tom Tancredo (R-Colo.) has a bold idea to stop illegal immigration: Deny automatic citizenship to the children of undocumented immigrants. "There is general agreement about the fact that citizenship in this country should not be bestowed on people who are children of folks who come into this country illegally," he told the Washington Times. General agreement? Perhaps among Mr. Tancredo's friends in the House but not among the framers of the 14th Amendment. Indeed, any such modern consensus would have a small problem in the text of the Constitution, which is, inconveniently for anti-immigrant demagogues, not subtle on the point. The 14th Amendment begins: "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." Not "all persons except children of illegal immigrants," not "all persons except those Congress exempts in moments of nativism." All persons.
How does Mr. Tancredo propose to get around this language? Like diplomats, illegal immigrants are not truly subject to American jurisdiction, he contends, and their children therefore don't satisfy the constitutional test for birthright citizenship.
The Supreme Court rejected this thesis more than a century ago. "Every 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," the court wrote. Diplomats, as a consequence of the lack of jurisdiction Mr. Tancredo would extend to aliens, cannot be arrested or charged with crimes. Is that what Mr. Tancredo has in mind for illegal immigrants? Members of Congress ought not follow him on this ugly and fruitless path.
(Excerpt) Read more at washingtonpost.com ...
For more on that, I wrote an article here.
Thanks, CO, for your enlightening post which everyone should read, INCLUDING our lawmakers. I'll make sure it gets to those in my state.
I think I read something a while back about how Roberts opposed automatic citizenship to children of illegal immigrants. Not sure though.
Ok, try to follow this. I know it's confusing, but it's worth it.
Firstly --
Justice Miller's aside in the Slaughterhouse Cases is NOT the holding in the case, and therefore has no legal precedential value. In fact, it is thoroughly dismissed in the LATER case cited by the WaPo (US v. Wong Kim Ark), where the majority opinion stated:
"Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the fourteenth amendment, made this remark: '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.' . . . This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase ...."
In other words, Miller was wrong. And as an "aside" which was not necessary to Miller's holding in that case, it was never law.
The court in Wong Kim Ark went on to say that the real intention of the words "subject to the jurisdiction of" was to exclude "children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,-both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country."
And why would we want illegal aliens to be "subject to the jurisdiction" of the United States? For the same reasons explained by the Wong Kim Ark court:
"The reasons for not allowing to other aliens exemption 'from the jurisdiction of the country in which they are found' were stated as follows: 'When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were . . . not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption."
Got that?
Secondly -
Lets take a look at your second cite -- Senator Jacob Howard. "Foreigners, aliens" is not meant to stand alone, but rather are qualifiers and emphasis for the rest of the sentence -- "who belong to the families of ambassadors" etc.
Otherwise, there would have been an "or" thrown in there.
Thirdly --
"Alien" DOES NOT MEAN "ILLEGAL ALIEN". It is a normal and ordinary synonym for any "non-citizen."
Fourthly --
"Subject"?? Subject is not a noun in this case!!! If you are "subject to the jurisdiction" it means you are within the control of the jurisdiction. Why on earth would you want illegal aliens to be exempt from our laws? (See 1. above)
Glad to be of help.
You just had to sign up here to do this and you’re annoyed? So sad. Seeing as you’ve not learned what this site is about yet, I’ll be glad to help. At least you’re probably getting paid for this, unlike the rest of us.
Justice Miller's aside in the Slaughterhouse Cases is NOT the holding in the case, and therefore has no legal precedential value.
If you read my post, I said that the Slaughterhouse Cases ADDRESS the issue. I did not say that they were precedent. The majority opinion, because it was contemporaneous with the ratification of the 14th Amendment, record the understanding of those who drafted, passed, and RATIFIED the Amendment, which DOES have value toward an originalist interpretation. Unless you believe that Justice Miller was lying, or prefer a rubber, er, "living Constitution," what the law meant at the time it was ratified is what is at issue, not what anybody else wishes it to mean at a later date. The opinion therefore has value in interpreting the intent of the 14th Amendment.
Got that?
In fact, it is thoroughly dismissed in the LATER case cited by the WaPo (US v. Wong Kim Ark), where the majority opinion stated:
About which I don't particularly care, for reasons I’ll explain later.
Now, as to dicta, notwithstanding the secret construction, hasty passage, and coerced ratification of the 14th Amendment, if it was true that the Supreme Court NEVER used dicta as precedent, you might be on solid ground. However, as Santa Clara v. Southern Pacific (118 U.S. 394 (1886)) proves (pertinent because it is more contemporary with Wong Kim Ark), even a headnote, written by the court clerk has carried significant precedence, especially because it established equal protection for fictitious persons (which may have been (railroad lawyers), Conkling and Bingham’s intent, but was not the understanding of those ratifying the Amendment). Interestingly, that self same court clerk, Court Reporter J. C. Bancroft Davis, was a corporate socialist, a student of Marx, and had a record of falsifying documents, but I suspect that doesn't matter a whit to you.
You can't have it both ways, sirrah. Drop equal protection for corporations and return them to full State jurisdiction and you might have a deal insofar as the integrity of your argument is concerned, but enough of that digression.
In other words, Miller was wrong. And as an "aside" which was not necessary to Miller's holding in that case, it was never law.
No, that's not what it says, despite how much you might wish otherwise. It says that Miller's opinion didn't matter because they were going to define the phrase as they saw fit. Fitting for the corporate attorneys who dominated the Supreme Court in those days.
Allow me to start with an examination of just who these concurring legal geniuses on the Court really were:
We have George Shiras, a prominent (drum roll please) railroad lawyer with no prior judicial experience and friend to corporate railroad barons with a rather keen interest in retaining Chinese coolies. Kinda reminds you of something rather more contemporary, doesn't it?
We have Horace Gray, author of the majority opinion, a buddy of Brandeis, Holmes, and other noted court activists and a big fan of paper money.
We have Yalie David Brewer, founder of the American Society of International Law, peace advocate, and judicial activist toward using the court to supersede State laws.
We have Yalie Henry Brown, , author of Plessy v. Ferguson!!!, and a huge fan of the use of Admiralty Law as a regulatory means (even though he hired a substitute to serve in the military for him in the Civil War).
Now, in your discussion, it is notable that you neglected to cite the dissent. Allow me to correct what must be an unintentional oversight on your part:
Finally among the dissenters, there is John Marshall Harlan, who had the temerity to oppose broad interpretation of the Commerce Clause and opposed Plessy v. Ferguson.
Justice McKenna did not participate as he was newly confirmed.
Chief Justice Fuller goes on with this elegant argument equating your preference with feudalism:
The tie which bound the child to the crown was indissoluble. [169 U.S. 649, 707] The nationality of his parents had no bearing on his nationality. Though born during a temporary stay of a few days, the child was irretrievably a British subject. Hall, Foreign Jur. 15.
The rule was the outcome of the connection in feudalism between the individual and the soil on which he lived, and the allegiance due was that of liege men to their liege lord. It was not local and temporary, as was the obedience to the laws owed by aliens within the dominions of the crown, but permanent and indissoluble, and not to be canceled by any change of time or place or circumstances.
How charming. Maybe he’s done? Not quite, and by a long shot.
You see, citizenship appertains exclusively to the allegiance of parentage, else the choices and preferences of those parents, AS LEGITIMATELY EXERCISED UNDER LAW, including changing citizenship by naturalization, is not something so easily superseded unless you think the State has a claim on the baby, the parents allegiances notwithstanding. So, I take it that you are anti-family in your stance too!
Allegiances of parentage are not so easily transgressed in law as you would suppose either. Back to the dissenting opinion:
It’s really quite an opinion; you ought to read it. Of course if you had, then your post relegates from probably contractual interest to one of singular dishonesty.
Fuller goes on to cite Story, Taney, and any number of opinions from within the Department of State, proving that Gray et al. could in no way honestly be citing historical precedent within the US as regards common law in this instance. He includes citation to the Federal Convention as well, indicating that the issue was raised and disposed in opposition of the majority opinion.
When he’s done with court and general pre-war precedent regarding citizenship, then Fuller looks to the essential precedent to the 14th Amendment, the Civil Rights Act of 1866, passed a mere TWO MONTHS before the drafting of the Amendment:
The words 'not subject to any foreign power' do not in themselves refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that, nevertheless, they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens.
You will also note that citizens of a foreign country are usually expressly prohibited from taking other citizenship without having renounced their native allegiance. It is patently illogical that their children would be allowed by that foreign power to do otherwise.
He completed his treatise addressing treaties between China and the US as well.
As to Mr. Howard's oratory in chambers (as opposed to written work), whether it should have included an "OR," frankly, that you find it necessary to make a Constitutional distinction between the children of diplomats and those of invaders and travellers is to render our treaty understandings with those countries and their jurisdiction over their citizens laughable. It is to show NO RESPECT for any other nation on earth and flies in the face of our nation's understanding of equal protection under the law.
Thirdly --
"Alien" DOES NOT MEAN "ILLEGAL ALIEN". It is a normal and ordinary synonym for any "non-citizen."
Silly me. As if I didn't know that. My point in all this detail is that the children of LEGAL aliens aren't legitimate 14th Amendment citizens either.
But I’m not done with you.
"Subject"?? Subject is not a noun in this case!!! If you are "subject to the jurisdiction" it means you are within the control of the jurisdiction. Why on earth would you want illegal aliens to be exempt from our laws? (See 1. above)
If I'm driving in Europe, I have to obey their traffic laws because I am WITHIN their jurisdiction. That doesn't make me a European SUBJECT.
I take you to Bouvier’s Law Dictionary, most applicable to the understanding of the word, “subject,” common at the time the Amendment was drafted and ratified (you know… the law):
2. In monarchical governments, by subject is meant one who owes permanent allegiance to the monarch. Vide Body politic; Greenl. Ev. §286; Phil. & Am. on Ev. 732, n. 1.
Welcome to FreeRepublic, where people take the original intent of laws rather seriously, else they become rubber legislation with no meaning at all.
Ok, I have a question for you.
How could the Fourteenth Amendment bestow citizenship rights on American-born former slaves or children of former slaves, if their parents were not citizens? Certainly the Emancipation Proclamation didn't do it, or there would have been no need for the Fourteenth Amendment. According to your interpretation, they were not "subject to the jurisdiction" of the United States because they inherited the foreign citizenship of their parents. If that is not the case, by what mechanism did slaves lose their citizenship of their country of birth? Kidnapping? By your logic, if former foreign-born slaves did not become American citizens by actively seeking naturalization, then their children, and their children's children, and their children's children's children, ad infinitum, would not be citizens today -- and the Fourteenth Amendment would be meaningless. And if you argue intent, why didn't the framers just write the Fourteenth Amendment to cover the descendants of slaves, and slaves only?
It's an Amendment to the Constitution. That was its intent. It was ratified. Nothing more need be said. Sheesh.
They may not have been citizens prior to the amendment, but they were undoubtedly subjects. They owed absolutely no allegiance to any foreign nation. Only the U.S.
That's exactly my point -- what made them "undoubtedly subjects"? The fact that they were subject TO the control of U.S. laws? (Subject in the Fourteenth Amendment is used as an adjective, not a noun. It does not say "a subject of" but rather "subject to" -- see Websters 1928 Dictionary; more likely closer to the understanding of most of the framers than Bouvier's, which only defined the noun). If that were the case, then everyone on U.S. soil is subject to the control of U.S. laws (except diplomats).
And what made them owe allegiance to the U.S.? Again -- kidnapping? Please, someone, tell me by what legal mechanism first-generation slaves lost their citizenship of their country of birth in Africa.
If the framers intended this Amendment to apply to slaves and slaves only, then they would have written it that way. Surely it didn't just slip their minds. But they didn't. They said "persons." And that must have been for a reason. Can someone answer that? In all your parsing of the intent of the framers someone somewhere must have said why they didn't write "persons of African Slave descent".
Are you familiar with the grammatical concept of a substantive noun? It's when an adjective is used as a noun (as with the word "variable", for example). A subject of a government is someone who's subject to its jurisdiction.
That means, by the way, subject to its jurisdiction at all times, even when he's out of the country. That's why a U.S. citizen who engages in child prostitution in Thailand can be prosecuted by U.S. authorities. That's why Johnny Jihad was charged with treason, despite the fact that his actions took place in Afghanistan.
And what made them owe allegiance to the U.S.? Again -- kidnapping? Please, someone, tell me by what legal mechanism first-generation slaves lost their citizenship of their country of birth in Africa.
However grossly immoral it was, it was perfectly legal under our laws at the time. That's just a fact we have to face. And it's really beside the point, because slave imports from Africa were cut off in 1808, so there'd have been nary an American former slave alive in 1868 who'd even know what the country of his ancestors' origin was, or in many cases, who is ancestors were. America is the only country they ever knew.
One does not have to be "subject to the jurisdiction" at all times. You can be subject to the jurisdiction of the country you're temporarily in. Local police can arrest you, you can be prosecuted by local authorities in local courts, and you then go to local prison. That doesn't mean that if you return to your home country, you couldn't also be prosecuted there, if their laws are written that way. You are conflating the two senses of the word "subject", by insisting that "subject to the jurisdiction thereof" incorporates the meaning of "a subject of". Check out Websters 1928 Dictionary for examples of "subject to" -- quite normal and ordinary usage. Just because Bouvier's only defines the noun, doesn't mean that was its only or most frequent usage.
I am not arguing that slaverly wasn't perfectly legal in this country. I am saying that kidnapping someone and transporting them against their will to another country does not automatically strip them of their citizenship, and bestow upon them the citizenship of their "host" country. If that were so, someone kidnapped in Bosnia, or Zambia or Pakistan, and transported to Guantanamo would automatically become an American citizen. Or Cuban, if you prefer. As the Fourteenth Amendment says, if you are born in this country, and you are subject to the jurisdiction of this country (meaning not immune, such as diplomat or child of a diplomat), then you are an American citizen.
There are many people in this country today who don't know the origins of their forefathers, not even if they were legal immigrants or not, and America is the only country they've ever known. (Many immigrants changed their names, and invented new stories for themselves when starting a new life). So are you saying they shouldn't be Americans? Even if their parents were born here? And their parent's parents? If it's just a matter of multiple generations, or passing of time, or ignorance of your origins, how many generations? How much time? How much ignorance?
I'm afraid I don't have access to that particular dictionary, but I looked it up on Merriam-Webster Online, and the first definition that came up for the adjective (not the noun) was, "owing obedience or allegiance to the power or dominion of another". So there's a difference between being subject to a government's jurisdiction, and simply being expected to obey its laws. People who are only visiting this country don't owe any allegiance to it.
And looking at the clear intent behind what was going on can only clear it up further. The well known reason for the 14th amendment was to protect the freed slaves, and in particular, to reverse the holding in Dred Scott that blacks can't be citizens. There's no evidence that Congress intended to come up with a whole new theory of citizenship to take the place of the one that had been in effect up to that point. To read it the way you're reading it, no person born in this country could ever even voluntarily renounce his citizenship.
If that were so, someone kidnapped in Bosnia, or Zambia or Pakistan, and transported to Guantanamo would automatically become an American citizen.
Except that our laws don't provide for such a thing, the way they stripped slaves of citizenship of their countries of origin.
There are many people in this country today who don't know the origins of their forefathers, not even if they were legal immigrants or not, and America is the only country they've ever known. (Many immigrants changed their names, and invented new stories for themselves when starting a new life). So are you saying they shouldn't be Americans?
How could you possibly conclude that? My point is that it does make them Americans, and by all rights, should make them citizens. The 14th amendment simply took that moral principle and made it the law of the land.
The basic idea is, if someone comes to this country, or is brought to this country, and is no longer considered by our laws to be subject to any other country's jurisdiction, and then he has children here, those children are subject to our jurisdiction, and are citizens of this country.
I think this could go on forever, but here goes, one last time....
"owing obedience or allegiance"
The operative word there is "or". Anyone in this country does owe obedience to our power or dominion. Anything less would be chaos.
And I'm not suggesting people can't voluntarily renounce their citizenship. People do it all the time. But it is a formal process and doesn't just magically happen because you reside somewhere else. This country cannot strip someone of their citizenship of ANOTHER country -- what I'm asking for is some proof that their African country of origin stripped them of their citizenship, or they renounced their original citizenship voluntarily. In fact, if you are born a citizen of certain countries, you cannot ever renounce it -- some countries consider you a citizen with all the rights and obligations that implies, despite you obtaining citizenship elsewhere. Does that mean that we would not consider that person's child an American? By your logic, "subject to the jurisdiction thereof" is defined by being the opposite of "owing allegiance to another country." And if your original country does not recognize your new citizenship, then theoretically you still owe allegiance to it, and there's nothing the U.S. can do about that.
I KNOW why the Fourteenth Amendment was passed. But by the plain words of the Amendment the framers chose NOT to restrict it to African slaves and the children of African slaves. They wrote it to mean just what it says, no more, no less. Any person born here, who is not exempt from our laws (such as children of diplomats) are Americans.
Thanks. It's been fun!
No. As a civilian, you'll have to contact the state department via the nearest U.S. consul and go through considerable red tape to secure a U.S. birth certificate if you have a child in a foreign country. There are processing fees, consular forms, affidavits, and the consul can even request evidence of maternity/paternity. The child is not automatically a U.S. citizen just because you are. If you do nothing, citizenship will not be conferred on the child automatically.
And when all is proven the kid is a citizen, despite the loops necessary to please the bureaucrats. Thus, the citizenship is automatic, but getting the concurrance of the bureaucrats is not.
You're right, a child born abroad to U.S. citizen parents is automatically a U.S. citizen -- the legal and functional equivalent of a U.S. birth certificate is the Consular Report of Birth, and there's a $65 processing fee. It's a fairly simple process whereby the parent has to present logical documentation -- parent's U.S. passport, etc. That child will be a dual-national if the country of birth also confers citizenship by virtue of birth on their soil. And if your second parent has citizenship of another country, you could be born with triple citizenship. I don't have a clue what happens if both your parents are dual citizens of four different countries and you're born in a fifth country. The most convoluted situation I can imagine is a child born in a country that confers automatic citizenship by birth, to parents that both have triple citizenship of different countries that each allow transfer of those citizenships to their children. Seven citizenships by birth? And that's only refering to birth-rights, not a situation where a parent or two have obtained extra citizenships by naturalization.
There's an interesting situation in which you can obtain U.S. citizenship even if you were not born a U.S. citizen, you don't apply for it, and you don't even want it -- If you are born abroad, and your U.S. citizenship parent cannot pass on that citizenship because they were not born in the U.S., and did not reside in the U.S. for at least 5 years, 2 of which were after the age of 14, and if you are granted legal residence in the U.S. (green card) before the age of 18, you AUTOMATICALLY become a U.S. citizen the moment you step foot on U.S. soil with green card status (whether you want it or not). Then you can apply for some sort of documentation showing that you are a U.S. citizen, but the documentation is only proof of citizenship, and does not actually confer it.
The unavoidable consequence of your own interpretation is that he can't do so while he's in this country. "All persons born" in the U.S., and "subject to the jurisdiction thereof" (according to your understanding of the term) are citizens. Any one to whom these facts apply can't change those facts about him if he's ever on U.S. soil.
Another inevitable consequence of your interpretation is that a person's citizenship can change just from crossing the border back-and-forth. He's in the country, he's a citizen, he leaves the county, he's not a citizen.
Yet another is that a diplomat's child who's born here, and who later comes back on a non-diplomatic passport, can be considered a U.S. citizen. After all, at that point he's liable to the ordinary judicial process for violations of our laws, and therefore "subject to" our jurisdiction, according to your use of the phrase.
So, how many absurdities are you willing to look at before allowing just a smidgen of common sense to govern how you read this thing?
Of course it does.
if it did, the additional qualifier of 'and of the State wherein they reside' would be redundant, but it's not.
No the additional qualifier means that said person is not only a citizen of the United States but also of the State wherein they reside. It's not redundant at all. They didn't want a southern state saying "well the 14th amendment makes blacks, citizens of the US, but they aren't citizens of our state, even though they live here."
The *United States* and it's jurisdiction is defined by Article I, Section 8,paragraph 17:
No, that paragraph only defines where Congress has "exclusive Legislation" rights. That is not the full extend of it's jurisdiction. According to your logic, the Constitution would only apply to Washington DC and Federal property. Clearly, that is not the case.
There is nothing that prevents you from renouncing your U.S. citizenship. What I'm saying is that you automatically become a U.S. citizen by being born here, but that doesn't prevent you from renouncing it later.
And where are you getting this in the country, leaves the country, business? That's exactly what I'm not saying. And if you mean that slaves formally and legally renounced their former citizenship, show me. Being brought to this country does not automatically make you an American citizen (eg. African-born slaves). Therefore, your children, even if born here, are probably citizens of another country through inheritance. Therefore, using your interpretation of the "subject to the jurisdiction thereof" clause, American-born children are subjects of their parent's country (and consequently, again, using your interpretation (and Carry Okie's) that this was inconsistent with U.S. citizenship), they are NOT subject to the jurisdiction of the United States. The consequence of this interpretation is that American-born former slaves or children of former slaves are NOT AMERICAN. Obviously not what the framers intended.
So what did the framers intend? The first stop is to interpret the plain language of the Amendment so that it makes sense. Therefore, "subject to the jurisdiction thereof" has to mean something independent of whether you are already "a subject of" another jurisdiction. Or you get the silly results above. And the easy result, consistent with the meaning of both "subject to" (see Websters 1928 Dictionary) and "jurisdiction" (see Webster's 1928 Dictionary and the Bouvier Law Dictionary), is that anyone present in this country, is "subject to the jurisdiction thereof" (except those pesky diplomats).
As to the consequence of a diplomat's child born here, and returning here as a private person, that's probably never been litigated, but they might indeed have a colorable claim that they they are U.S. citizens. After all, the amendment doesn't explicitly say that "born" and "subject to" have to be concurrent, and therefore it is a matter of judicial interpretation. I am sure most courts would conclude that they were meant to be concurrent. And it seems to me that most methods of interpretation would lead to the same conclusion -- textualist, originalists, living document etc.
What the Amendment is NOT silent on, is who it refers to (persons in general, not just slaves), where they were born (in the United States), and whether or not they are immune from U.S. jurisdiction. And since no one here other than diplomats and their families are immune from U.S. jurisdiction, voila! If you are born on U.S. soil and you're not a diplomat's child, you're a citizen.
And despite what you might think, I am not paid to do this, and much as I've enjoyed this tremendously, I really really have to get back to work...
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