The UnConstitutionality of Citizenship by Birth to Non-Americans

http://idexer.com/ ^ | 4/04/06 | By P.A. Madison

[Libertina]

Until this practice is banned, (just as uber-liberal Canada was forced to do) we will NEVER solve our immigration problem. I lived overseas and the locals all talked about their "American" children. Don't even get me started, it makes me see red. Although I can hardly fault them for taking advantage of our government's willful stupidity.

Oh BTW, this legal loophole they loved and took advantage of... it elicited their CONTEMPT, for us, NOT their respect. (Take note all you moronic "elected representatives" who might be reading this post.) BTTT

[Blackyce]

"Foreign dignitaries are not. Unless you're willing to stretch the word beyond all meaning." Everyone within our territory is subject to our jurisdiction, unless we have an agreement with a foreign power saying otherwise. It's inherent to the definition of sovereignty. I'm just going to quote from the controlling case Wong Kim Ark, because it attempted to answer a lot of the questions raised on this thread:

In the great case of The Exchange (1812), 7 Cranch 116, the grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country were set forth by Chief Justice Marshall in a clear and powerful train of reasoning, of which it will be sufficient, for our present purpose, to give little more than the outlines. The opinion did not touch upon the anomalous casts of the Indian tribes, the true relation of which to the United States was not directly brought before this court until some years afterwards in Cherokee Nation v. Georgia (1831), 5 Pet. 1; nor upon the case of a suspension of the sovereignty of the United States over part of their territory by reason of a hostile occupation, such as was also afterwards presented in United States v. Rice, above cited. But, in all other respects, it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof.

The Chief Justice first laid down the general principle:

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.

7 Cranch 136.

He then stated, and supported by argument and illustration, the propositions that

this full and absolute territorial jurisdiction, being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power,

has

given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation

-- the first of which is the exemption from arrest or detention of the person of a foreign sovereign entering its territory with its license, because

a foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity and the dignity of his nation; . . . a second case, standing on the same principles with the first, is the immunity which all civilized nations allow to foreign ministers; . . . a third case, in which a sovereign is understood to cede a portion of his territorial jurisdiction, is where he allows the troops of a foreign prince to pass through his dominions;

and, in conclusion, that

a public armed ship, in the service of a foreign sovereign with whom the Government of the United States is at peace and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory under an implied promise that, while necessarily within it, and demeaning herself in a friendly [p685] manner, she should be exempt from the jurisdiction of the country.

7 Cranch 137-139, 147.

As to the immunity of a foreign minister, he said:

Whatever may be the principle on which this immunity is established, whether we consider him as in the place of the sovereign he represents or, by a political fiction, suppose him to be extraterritorial, and therefore, in point of law, not within the jurisdiction of the sovereign at whose court he resides, still the immunity itself is granted by the governing power of the nation to which the minister is deputed. This fiction of exterritoriality could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it. . . . The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction which are admitted to attach to foreign ministers is implied from the considerations that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and therefore, a consent to receive him implies a consent that he shall possess those privileges which his principal intended he should retain -- privileges which are essential to the dignity of his sovereign and to the duties he is bound to perform.

7 Cranch 138, 139.

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 [p686] not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

7 Cranch 144.

In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that, upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war, and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found. See also Carlisle v. United States (1872), 16 Wall. 147, 155; Radich v. Hutchins (1877), 95 U.S. 210; Wildenhus' Case (1887), 120 U.S. 1; Chae Chan Ping v. United States (1889), 130 U.S. 581, 603, 604.

[Unam Sanctam]

Spoken like a true, blue socialist of the Peoples Republic of Mass.

Please cite where I have said one word that is socialist. The fact is, if there are illegals here, and if they're not going to be kicked out, which they are not, then you will have a permanent underclass for generations if you take away citizenship by birth. I am merely pointing out a fact that nobody seems to mention in talking about this issue. It is not the least bit socialist. But it would seem that calm intellectual discussion of different issues seems in short supply when the topic is immigration, and your post is a case in point. And the fact that someone happens to live in the Commonwealth of Massachusetts does not make someone a socialist as you so cavalierly generalize.

[Porterville]

I am happy that this post is being debated. I hope it gives our conservative ideology more power and more strength by dispelling myth.

Viva La Reagan Revolution!!

[El Gato]

I do not see in any of the quotes in the article where those Congressmen said any such thing. When they talk about the Indians, they qualify it with "belonging to a tribal relation". One exception might be what Senator Bingham said:

"[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen...[6]"

However, what Senator Bingham said in his very next sentence does not support the author's interpretation, and I find it very telling that he did not include it. He continued: (the words below follow immediately after the above quotation, with no intervening words.

... but sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of power to say that any man born within the jurisdiction of the United States not owing a foreign allegiance, is not and shall not be a citizen of the United States. Citizenship is his birthright, and neither the Congress nor the States can justly or lawfully take it from him."

Note it is the man himself, and not his parents that the good Senator referred to as "not owing a foreign allegiance".

That statement by the man the author says is "considered the father of the Fourteenth Amendment", kind of throws the author's argument right into a cocked hat, doesn't it? You can check it out at: The Library of Congress. You'll have to manually put in the page number, 1291, as indicated by footnote [6] in the original article.

BTW, the good Senator was not speaking on the resolution that would become the 14th amendment, but rather on a civil rights bill. Later in the transcript we see him arguing that Congress did not then, prior to the 14th amendment, have the power to forbid discrimination by the states on account of race by a passing a mere law. He argued for a Constitutional amendment. Later that year, the resolution that would become the 14th amendment after ratification by the states passed both Houses of Congress by very lopsided votes.

[John Valentine]

Absurd or not, it's what the drafters meant. And it's what the Congress, and the courts of the time, understood without question.

Thinking about the lucid writing of Dave in Post 19, I have to agree with many of his points, and should it be possible to resurrect any record of the debates in the various State legislatures of the time (and it may well be), I think Dave would be persuaded by such a record that indeed, those entrusted with the ratification of 14 did in fact understand the law as intended by its drafters.

The only folks who now don't seem to share that understanding are those that think that linguistic drift should undermine the meaning of words penned long ago; to make them appear "preposterous" to someone reading the language with today's understanding of the meaning of words. Now, to me, THAT'S preposterous.

As for Diplomats, even they are subject to our laws, they are simply immune from prosecution for violations of those laws. You are not the first person who seems to think that our laws against murder don't apply to diplomats. They certainly do. They simply can't be prosecuted in our courts. In fact, thay are not subject to the jurisdiction of our courts.

But the children of non-diplocmatic foreigners are similarly saved from the application of all our laws, for example from a law requiring registration for conscription, or actual conscription itself, should it ever be necessary.

As for you remark about "bending" the law, perhaps you should read up on the history of the 14th, its passage and its enforcement in the courts, right up until Kim. Then you might sing a different tune about just who is "bending" the law.

[John Valentine]

"duel citizenship"

Now, THERE'S a concept! Is that the kind Alexander Hamilton had?

[William Terrell]

"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 [p686] not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

By my reading, it says aliens that came here illegally come under the "subject to the Jurisdiction" clause.

[brytlea]

I don't think these were well to do women, but perhaps some were. From what I was told, they were not paying the bills.
susie

[AZRepublican]

I do not see in any of the quotes in the article where those Congressmen said any such thing. When they talk about the Indians, they qualify it with "belonging to a tribal relation". One exception might be what Senator Bingham said:

That is Rep. Bingham. The same citizenship language Bingham was talking about was also adopted in 1870, and 1874 civil rights legislation. This is after the adoption of the 14th.

Note it is the man himself, and not his parents that the good Senator referred to as "not owing a foreign allegiance". That statement by the man the author says is "considered the father of the Fourteenth Amendment", kind of throws the author's argument right into a cocked hat, doesn't it?

How is that? What part of "not owing a foreign allegiance" you find confusing there? If someone owes a "foreign allegiance" they cannot be under the jurisdiction of the U.S. because they are required to renounce that allegiance.

[highball]

As for Diplomats, even they are subject to our laws, they are simply immune from prosecution for violations of those laws. You are not the first person who seems to think that our laws against murder don't apply to diplomats. They certainly do. They simply can't be prosecuted in our courts. In fact, thay are not subject to the jurisdiction of our courts.

Yes.

That's it exactly.

I never said that the laws do not apply to them. But they are not subject to our jurisdiction. There's a subtle difference, but a very important one. If they break our laws we have to turn them over to their governments for trial and punishment. That's what jurisdiction means.

And that's the loophole that the drafters of the 14th Amendment placed in it. They obviously never intended that children of foreign dignitaries born in the United States be endowed with automatic citizenship. So they clarified that intent within the language of the Amendment.

Had they ever intended to limit such citizenship to children of citizens, they could easily have done so. But they did not. We can't go by what we think they may have meant, we can only go with the language of the Amendment itself. That it contains a very specific exemption for one group tells us that other exemptions we would like to find in it are not there.

But the children of non-diplocmatic foreigners are similarly saved from the application of all our laws, for example from a law requiring registration for conscription, or actual conscription itself, should it ever be necessary.

Not a great example. There are some regulations and laws that only apply to citizens. Conscription laws to not apply to foreign students, visitors, people on work visas, etc. That does not mean that people on work visas are not subject to our jurisdiction - they most certainly are, since we process he visa, renew or revoke it, etc.

Women are also exempt from Selective Service, but no one yet has floated the argument that half our population is not subject to our jurisdiction....

[John Valentine]

I agree that my examaple wasn't the greatest, and I agree that there isn't any dispute that even under its broadest interpretation the 14th is conceded not to grant citizenship to the children of diplomats.

But, the AUTHOR of the amendment, and no one should know better than he what his intention was, included the children of foreigners - as a class - among those the Amendment was intended to bar from automatic citizenship by birth.

When this amendment was adopted there were many non-foreign individuals whose own US citizenship was less than certain. They were NOT subject to the jurisdiction of any foreign power, yet they were not clearly citizens in their own right. The 14th was intended to secure the citizenship of the children of this class of person.

The reason that the condition was not expressed "and not subject to the jurisdiction of any foreign power" apparently had to do with the issue of the citizenship for American indians. Too bad, because had the law been worded this way, with no change whatever in the intent of the author (except the introduction of ambiguity into the situation of indians), our we would not today be beset with the "anchor baby" situation.

[highball]

But, the AUTHOR of the amendment, and no one should know better than he what his intention was, included the children of foreigners - as a class - among those the Amendment was intended to bar from automatic citizenship by birth.

Even if we accept this as fact, it doesn't matter. Only what the Amendment actually says matters.

He could have included "children of foreign nationals" into the language of the Amendment. But maybe then it wouldn't have passed.

The reason that the condition was not expressed "and not subject to the jurisdiction of any foreign power" apparently had to do with the issue of the citizenship for American indians. Too bad, because had the law been worded this way, with no change whatever in the intent of the author (except the introduction of ambiguity into the situation of indians), our we would not today be beset with the "anchor baby" situation.

You may be right. But again, if a specific exemption was intended for a group of people, that should have been articulated. Indians are mentioned in the Constitution itself, they could have been mentioned here.

Again, maybe if he had written the language to provide for the result he really wanted, it might not have passed. That's why we don't look at authorial intent, only by the final language of the law. The author's original intent is no more law than any of the compromise drafts considered before a final version was worked out. All are interesting; none are law.

I agree with you that "anchor babies" are not a good idea. The concept weakens our sovereignty and invites lawbreaking. But by a strict reading of the language of the Constitution, they are Constitutional.

I believe in such a reading of the Constitution. If we don't like what it actually says, we need to change that language. That there are Republicans in Congress willing to adopt Dim tactics for short-term political gain is disappointing, but does not change my opinion.

[John Valentine]

Only what the Amendment actually says matters.

No. Only what it MEANS matters.

And here is where we get into trouble, because admittedly, there is ambiguity in this language. Or, more precisely, at least to us, viewing this language from the distance of 125 years, there seems to be ambiguity. So, it's not that the idea wasn't articulated, it's just that we all wish it had been articulated better.

[Vinnie]

Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], 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, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.[3]

Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866: [I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen...>/B>

Sounds definitive to me.

Part of the oath of Naturalization

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen...

[highball]

Sounds definitive to me.

Yes, it does.

Too bad that's not the language that they actually wrote in the Amendment.

If they had included that, we wouldn't be in the mess we are now. But they didn't.

[HiJinx]

14th Amendment Ping!

[holyscroller]

After seeing all the massive demonstrations by Illegals, our gutless elected officials will never have the cajones to take away the anchor babies loophole. They're going to be trembling in their boots now every time the mobs clamor for something or other. They won't listen to their American base, but watch them fall all over themselves for the Illegals. Sickening!

[Libertina]

The very first time Americans started complaining about this, it should have been taken care of. Remember when we began saying we MUST have an English only law?

First our officials say there aren't enough illegals to be a problem, now they say the problem is too big to fix. Damn their traitorous behavior!

[B4Ranch]

A citizen from a foreign country who has a green card and resides in the US of A is NOT permitted to serve on a jury. Residence is not enough to make someone a citizen.