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.