Bill rekindles debate on birthright citizenship

Anything heading to Congress which supports hoisting up the anchor baby will be given my full support.

We allow them to have access to all things supported by taxpayers. Hospitals are closing because they are going broke, schools are educating our young poorly, housing areas areas are being affected by the massive amounts of illegal immigrants living in their own made squalor.

Every attempt so far by Americans to protect themselves from this mess has been squelched by the OBL politicians, judges, and Mexican support groups.

We've had Mexico shoved forcibly down our throats, and it is costing us billions every year in California alone. This isn't America anymore.

Of course we here in California have been blessed by the 9th circus that is so controversial to American values. Although I currently have children in the school system, I am appalled at the requirement to slow down the learning process by catering to those that do not speak English. California and the rest of the United States should follow Arizona's lead by making English the official state language.

Ping for your standard responses.

Interesting that the Big Perfesser at Yew-T points to Plyler V. Doe as somehow deciding the issue of citizenship. Hadn't heard that joke yet.

Anyone born in the United States is an American citizen

Bunk. Perhaps Sr. Castillo wants it to be true in his own case (and certainly in the case of his homeys), but it isn't.

It's very, very clear beyond reasonable doubt that under current interpretation of the 14th Amendment, and simply U.S. law, that anybody born in the United States, except for a few exotic examples, becomes a citizen

Actually it isn't, and has never been adjudicated by any court. The closest case is Wong Kim Ark v. United States, last visited in 1898. And his parents were legal aliens at the time of his birth in San Francisco, two decades earlier than the case - in the 1870's. So it doesn't apply to those here illegally.

Mr. Levinson - who's homeys probably weren't here either before 1898 - is just babbling for effect, hoping people will buy his assertions. The left always operates that way: insist something is true long enough and pretty soon the gullible start buying it.

For y'all "strict constructionists" here who sorta lack a law degree, this argument is probably reasonably easy for most of you to get it: Amicus Brief in Hamdi v. Rumsfeld . Note the co-authorship of Mr. Reagan's Attorney General.

And for even further clarification if all those legal arguments are just too confusing, Mr. Eastman clears it up with this: Eastman Testimony Before the House .

Eastman's brief and testimony are not the opinions of one man but they are some of more plain arguments made recently. Anyone who wants to research this on the web will find that out for themselves. It is not the simplistic interpretation insisted on here by the Journalism major from Mexico or his lap dog leftist "Constitutional" law professor.

Ping for your standard responses.

As in, you want it posted (it takes a fair bit of work to put together)?

Interesting that the Big Perfesser at Yew-T points to Plyler V. Doe as somehow deciding the issue of citizenship. Hadn't heard that joke yet.

I don't know anything about PvD.

ping

As in, you want it posted (it takes a fair bit of work to put together)?

I've seen you post it so many times, I would have thought by now you did a cut'n'paste!

Plyler was the 1982 Supreme Court decision that asserted that public education must be given to all regardless of 'status'. This was in opposition to a Tyler, Texas law requiring citizenship to attend public schools in the Tyler school system. Asserting that it confers citizenship through an oblique mechanism is almost hilarious, especially considering that being born in the U.S. was never an element of the case. If we buy that argument from this "professor", then I guess we can amend the 14th to say "all persons who happen to attend primary school in the United States are citizens" and point to some tortured logic for that.

I wrote this in Word. It's a pain to reformat it for this text box.

About 2-1/2 years ago, I posted a thread featuring a quote from the majority opinion on the Slaughterhouse Cases. It was a detailed interpretation of the citizenship clause of the 14^th Amendment that precluded conferring automatic citizenship to children born of aliens within the United States. As the “keeper of the quote” various people have occasionally requested that I post that information in order to help refute the common impression that the phrase, “subject to the jurisdiction thereof,” means that all babies born in the US are therefore citizens under the 14^th Amendment:

The key statement in Chief Justice Miller’s opinion says that the clause precludes citizenship to children of ALL foreigners born with the United States:

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. Note that the phrase, “was intended to exclude,” implies that Miller had reason to be aware of, or had records to the effect that such was a common understanding of those who drafted, passed, and ratified the Amendment. Miller’s opinion was not a general ruling on the citizenship clause of the 14^th Amendment and is therefore not precedent and carries no effect of law. However, it DOES help record at least one of the common understandings of the original legislative intent, which does carry weight when applying the Amendment as ratified (which IS the law).

Since that time, several posters have also cited a Congressional speech by Second, Senator Jacob Howard, one of the co-authors of the citizenship clause of the 14th Amendment, from the Congressional Globe in 1866:

"Every Person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. This statement is somewhat at variance with the Miller’s majority opinion in the Slaughterhouse Cases. Howard’s statement, insofar as aliens are concerned, denies citizenship only to representatives of foreign governments.

The precursor to the citizenship clause was the Civil Rights Act of 1864. The Slaughterhouse Cases were overturned nearly eighty years later, in US v Wong Kim Ark. Here is a discussion of that case brought to you by the Washington Post (probably in response to the slow boil of noise as more people find out about Miller’s opinion in the Slaughterhouse Cases, no, I'm not going to give them the benefit of a link, you can find it for yourself : -):

“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.... “

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.”

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.”

The idea that just because a baby is not a citizen they would enjoy any kind of immunity from our laws is totally specious. If I drive in a foreign country using my passport and California Driver License as qualification, I am still required to follow the rules of the road in that nation. That’s because I am WITHIN its jurisdiction. However, if I was arrested for a violation, the fact that I possess identification as an American citizen means that I (supposedly) enjoy certain protections as a citizen of the US, not a SUBJECT of that country. The American consulate would be notified and an officer would seek to act upon my behalf.

Further, the very idea that the citizenship of a baby born in the US of foreign parents should make a difference in its willingness to abide by American law is plainly silly. Babies don’t particularly care about local allegiance or show any interest in violating any laws (mom, food, and a dirty diaper are higher priorities). Meanwhile the parents remain foreigners! Are these legal geniuses on the Supreme Court suggesting they hold the kid hostage as an American citizen to ensure their parents’ good behavior? It’s absurd.

Let’s take a moment to examine just who these concurring legal geniuses on the Court (in US v. Wong Kim Ark) really were:

We have Rufus Peckhamfont color=blue>style='color:teal'>, infamous inventor of the now-discredited term, "substantive due process," used to invalidate a state statute regulating the hours of bakery employees.

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).

Lovely bunch. >By contrast, the dissenting opinion was written by:

Chief Justice Melville Fullerfont color=blue>style='color:teal'>, a big fan of Thomas Cooley’s Treatise on Constitutional Limitations and property rights, but by no means a corporate shill.

The other dissenter was 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.

Justice Fuller’s opinion is extensive, so I’ve excerpted its most pertinent points.

If the conclusion of the majority opinion is correct (that children become natural law citizens of whatever country in which they happen to be born -CO), then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect. And children who are aliens by descent, but born on our soil, are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court,-an exemption apparently disregarded by the acts in respect of the exclusion of persons of Chinese descent.

It is an admirably clear construction, complete with an astute prediction of the modern consequences of the majority ruling. Chief Justice Fuller goes on with this elegant argument equating automatic birthright citizenship with feudalism:

The English common-law rule, which it is insisted was in force after the Declaration of Independence, was that 'every person born within the dominions of the crown, no matter whether of English or of o reign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning in the country, was an English subject; save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England.' Cockb. Nat. 7.

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.

In sum, a child born in England was a possession of the crown, literally a form of indenture. That is what “subject” really means, a form of subjection that was utterly dissolved by the Declaration of Independence.

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 the State has a claim on the baby, the parents allegiances notwithstanding. Effectively, for government to determine the citizenship of a baby without regard to its parents is in some respects not only indenture, it is anti-family.

Allegiances of parentage are not so easily transgressed in law as one would suppose either. Back to the dissenting opinion:

Twiss, in his work on the Law of Nations, says that 'natural allegiance, or the obligation of perpetual obedience to the government of a country, wherein a man may happen to have been born, which he cannot forfeit or cancel or vary by any change of time or place or circumstance, is the creature of civil law, and finds no countenance in the law of nations, as it is in direct conflict with the incontestable rule of that law.' Volume 1, p. 231.

It’s really quite an opinion.

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 even includes citation to the Federal Convention as well, indicating that the issue was raised and disposed of 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 civil rights act became a law April 9, 1866 (14 Stat. 27, c. 31), and provided 'that all persons born in the United States, and not subject to any foreign power, excluding Indians [169 U.S. 649, 720] not taxed, are hereby declared to be citizens of the United States.' And this was re-enacted June 22, 1874, in the Revised Statutes (section 1992).

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.

One notes 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.

Now we go to Bouvier’s Law Dictionary, most applicable to the understanding of the word, “subject,” common at the time the 14^th Amendment was drafted and ratified:

SUBJECT, persons, government. An individual member of a nation, who is subject to the laws; this term is used in contradistiction to citizen, which is applied to the same individual when considering his political rights.

ALL of these cases hinge upon the meaning of the term “subject to the jurisdiction thereof.” 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.

Imagine for a moment a pregnant woman is on an airplane. It lands in a foreign country for a stopover and the woman delivers. They fly home the next day. Is the kid Italian, German, Japanese? If the stopover was on Guam, the SCOTUS says that the baby is American citizen as a matter of natural law? Even if the kid was here for two days and the parents have no intention of ever setting foot in the US again? Doesn’t it stand to reason that this flies in the face of natural law principles which obviously dictate that the child’s citizenship should appertain to whatever nation and culture from which the parents originate, where it learned its language and customs? To argue otherwise is insane.

But what about children of permanent residents, who are born in the US If they are raised in the United States and therefore adsorb its culture and loyalties, aren’t they due the Constitutional protections of their natural law rights?

First let’s examine whether permanent residents deserve Constitutional rights in the first place. The first case under which the Federal government extended the ability to confer Constitutional rights to aliens was Bridges v. Wixon. Here again, political leanings of the offending justice bears some examination.

The power to extend rights is to gain the power to take them. The Constitution is a social contract among “we the people of the United States” by which to mutually guarantee that the government it defines does not have the power to violate those pre-existing rights.

CITIZEN, persons. One who, under the constitution and laws of the United States, has a right to vote for representatives in congress, and other public officers, and who is qualified to fill offices in the gift of the people. In a more extended sense, under the word citizen, are included all white persons born in the United States, and naturalized persons born out of the same, who have not lost their right as such. This includes men, women, and children. 2. Citizens are either native born or naturalized. Native citizens may fill any office; naturalized citizens may be elected or appointed to any office under the constitution of the United States, except the office of president and vice-president. The constitution provides, that " the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." Art. 4, s. 2.

3. All natives are not citizens of the United States; the descendants of the aborigines, and those of African origin, are not entitled to the rights of citizens. Anterior to the adoption of the constitution of the United States, each state had the right to make citizens of such persons as it pleased. That constitution does not authorize any but white persons to become citizens of the United States; and it must therefore be presumed that no one is a citizen who is not white. 1 Litt. R. 334; 10 Conn. R. 340; 1 Meigs, R. 331.

4. A citizen of the United States, residing in any state of the Union, is a citizen of that state. 6 Pet. 761 Paine, 594;1 Brock. 391; 1 Paige, 183 Metc. & Perk. Dig. h. t.; vide 3 Story's Const. 1687 Bouv. Inst. Index, b. t.; 2 Kent, Com. 258; 4 Johns. Ch. R. 430; Vatt. B. 1, c. Id, 212; Poth. Des Personnes, tit. 2, s. 1. Vide Body Politic; Inhabitant.

Thus the Court’s (and the public’s ignorance) of the mid-19th Century term "subject" is, in my opinion, a deliberate misconstruction generated in law schools and the media for the unexpressed purpose of diluting citizenship to the point of meaninglessness.

The Constitution is a compact among “We the People of the United States.” It is quite clear therefore that anyone else, who is not a person of the United States, is not protected by the Constitution’s guarantees. That the Constitution is a limiting document means that the government of the United States does not have an enumerated power to extend its protections to anyone else. That blessing, unique in history and among the nations of the world, is the proud possession of American CITIZENS alone. It may be entirely within the legitimate powers of the government to extend such protections by statute, but they cannot extend to the Constitutional level. Should the Congress decide to treat aliens, including permanent residents, any differently than citizens, the Constitution itself is mute.

Citizenship inherently means something, or at least it should.

Thanks, C_O. That's indeed what I was thinking of.

A tour de force of a post, I must say!

For the others pinged, please see the previous post. It makes clear in a practical way the issue of "birthright citizenship" for illegal aliens in the States that are United.

Bump!

Sorry, but just because liberals abuse the text of the Constitution to create rights that don't exist doesn't mean what conservatives can do the same. The text is clear -- if you're born here, you're a citizen. Anything else is sophistry.

I guess you haven't done much research on this, have you?

BTW, how would feel if Al Qaeda started bringing their wives in and giving birth to little terrorists? Would you wish to grant them citizenship?

As an OBL would say, "Pshaw. That's a bunch of crap. Just let them be citizens".

Man, how I wish that Amendment had been written more clearly.

Bravo!!!!

The 14 Amendment was to make sure former slaves were considered citizens. It is really sick to give this privilege to families who have broken our laws to come here.

I read recently that 60% of births in Texas are to illegals.

3/4 of all births in L.A. county are to illegals.

I don't know how they got that statistic, but it is what they recently reported.

"3/4 of all births in L.A. county are to illegals.

"I don't know how they got that statistic, but it is what they recently reported."

They probably counted!