Posted on 11/30/2007 3:59:11 PM PST by calcowgirl
“If you want to end brithright citizenship, you will have to amend the Constitution. No state or federal law that tried to eliminate birthright citizenship would ever pass Constitutional muster in the federal courts - nor should it, because such a law would be blatantly unconstitutional.”
The historical references where towards black slaves. Giving them citizenship. If it applied to everyone, we wouldn’t have had to give citizenship to American Indians further down the road.
The misuse of this amendment is based upon it’s lack of historical reference.
“The Founders showed by example when they enacted naturalization laws in the states that they supported a very generous and liberal notion of citizenship and naturalization.”
Our immigration laws weren’t even fond of anyone from even Eastern Europe...at the time we saw them as backwards.
It isn't a matter of "historical reference."
The Amendment was written to be part of the US Constitution in perpetuity.
The law is the law - if it was intended solely for a limited class of persons then it would have been explicitly limited to them and it would have been grandfathered.
That's not the case.
Backwards like Revolutionary hero Casimir Pulaski?
The Framers had no prejudice against Eastern Europeans and did not see them as "backwards."
The Fourteenth Amendment says absolutely nothing about the parents of anyone born in the United States.
Illegals are still citizens of another country.
And they are still under US jurisidiction when they are on US soil. If they weren't, every time an illegal was arrested on a murder, rape or drugdealing charge, his lawyer would be able to get the charges dropped immediately on jurisdictional grounds.
Sorry, but US law enforcement has full jurisidiction over all immigrants - legal or illegal.
So essentially you are offering condescension and obfuscation in lieu of argument.
(1) Native Americans clearly were not under the jurisdiction of the US because the US negotiated treaties with the various Native American tribes and nations as if these tribes and nations were external political entities.
Native Americans were under the jurisdiction of their tribes and nations in conformity to negotiated treaties.
(2) Unless the foreign national is in the US pursuant to some diplomatic arrangement, that person - be he legal or illegal - is under the full jurisidiction of the United States. He is obliged to obey US law or he can be punished with the full force of US law. An illegal Mexican immigrant or a French tourist cannot drunkenly run someone over with a car and claim that because he is a citizen of a foreign country he cannot be arrested, charged and convicted under US jurisidction.
“Why is it that so many self-proclaimed “Constitutionalists” know so little about the Constitution?”
Agree completely. This is settled law. On the same issue, I wonder on what basis the people against birthright citizenship claim their own citizenship. If condition of the parents is the determining factor, wouldn’t everyone on this board have to prove the legal status of all ancestors to claim citizenship based on legal ancestors?
Wideawake and a certain other freeper I have pinged, have been the victims of mistaken identity on more than one occasion on this site. I'm lucky that they only mistake me for being female.
“The Amendment was written to be part of the US Constitution in perpetuity.”
Then why did we have to give citizenship to American Indians down the road (via legislation)?
Wrong again, Sleepy. I just don't want to waste my time repeating myself.
I've refuted every one of your misinformed points over the years in posts on this forum. Carry_Okie has a basic article that he now posts since it responds to all the nonsense drivel that people bring up to "defend" citizenship for anchor babies.
You do the work. Search on our forum names and find the posts.
I'm not gonna waste another minute that I could be spending with my real, live, 14th generation American citizen child trying to convince some ignorant twinkie in cyberspace that what they're saying is legal nonsense.
Who's wishing? This has been discussed a million times on this forum and I've posted relevant information almost every time over the last 6 years. Never saw your handle even once.
You can do your own research on this forum using my screen name or Carry_Okie. Hell, ping him. He's got the post as a file.
Just because I'm feeling generous, I'll even give you a few hints: Google "Meese Eastman Claremont Birthright citizenship" and see what you find.
I'm not gonna waste the time.
Not correct by a long shot.
“
What “Subject to the Jurisdiction Thereof” Really Means
By P.A. Madison on September 22, 2007
Updated 10/8/07
I have been bombarded lately with requests to revisit the meaning of the Fourteenth Amendments “subject to the jurisdiction thereof” language. Some desire confirmation whether the language simply implies temporary obedience to laws, while others want to confirm whether it requires something more direct and substantial. I’ll spare the reader a lengthy treatise by making this short and to the point.
Perhaps the first most important thing to understand about national birthright is that there was no national birthright rule until the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution.
One reason for the absence of an early-defined national birthright rule is that States had decided for themselves who were its citizens by virtue of being born within the limits of the State. Prior to the 14th amendment citizens of the United States were strictly defined as citizens of the States.
After the Revolution, States retained only those portions of common law that were applicable to their local circumstances. The practice of England at the time was every person born within the realm of the King was a natural born subject by virtue of birth alone. In the United States, such a rule was not strictly followed as children born to black slaves, transient aliens, or Indians, followed the condition of their father (natural law).
Conceivably, Congress could had from the beginning attempted to include a defined birthright rule under the laws of naturalization - whether due to place of birth or parentage - but would have found, just as the Thirty-Ninth Congress had discovered, to be no simple matter as individual States had differing opinions over who should, or should not, be its citizens.
As a rule, the nation considered only those patriotic immigrants who came here for the exclusive purpose to settling amongst us, bringing with them wealth, like habits and customs as those worthy to become part of our society. Paupers, vagabonds and imperialist were universally despised.
Imagine for a moment Congress debating during the constitutional convention, or even years following the adoption of the Constitution, a national criterion for establishing citizenship by birth of all persons as practiced under English common law. Firstly, that would have been rejected by a number of States as placing men of color on an equal footing with the Anglo-Saxon race. This in return forcing perhaps an attempt to compromise using the words “free white men,” with that in return being rejected by some northern States as repugnant of the Declaration’s “all men are created equal.”
Moreover, there undoubtly would been terrible disputes over the fact the nation was attempting to adopt common law as general law, something more than a few considered derogatory. James Madison succinctly illustrates such dilemma to George Washington:
What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & anti-republican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law.
So what was to be the premise behind America’s first and only constitutional birthright declaration in the year 1866? Simply all children born to parents who owed no foreign allegiance were to be citizens of the United States.
During the debates of the Fourteenth Amendment’s citizenship clause, both its primary framers, Sen. Jacob Howard and Sen. Lyman Trumbull listened to concerns of including such persons as Chinese, Mongolians, and Gypsies to citizenship. Additionally, Sen. Fessenden raised the question of persons born of parents from abroad temporarily in this country, and of course, the question of Indians. Chinese, if one remembers their history, where a major concern on the part of citizens on the pacific coast and occupied a great deal of the news of the time (mostly all negative).
Sen. Trumbull attempted to assure Senators that Indians were not “subject to the jurisdiction” of the United States. Sen. Johnson argued that Sen. Trumbull was in error in regards to the Indian’s not being under the jurisdiction of the United States. This must have raised concerns with Howard because he strongly made it known that he had no intention whatsoever to confer citizenship upon the Indians under his amendment, no matter if born within or outside of their tribal lands.
Sen. Trumbull and Sen. Howard then settled upon a construction for “subject to the jurisdiction thereof,” with Trumbull declaring:
The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
Sen. Trumbull further added, “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’” Sen. Jacob Howard agreed:
[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.
The above statements by Howard and Trumbull give us a good idea of what “subject to the jurisdiction thereof” as employed under the Fourteenth Amendment means: Absence of owing any allegiance to any other foreign power, which in return allows the United States to exercise full and complete jurisdiction over the person.
To understand how an alien might not owe allegiance to some other sovereignty upon arrival to this country, one need to look no further then the naturalization laws of the United States. Under United States law, an alien was required to make a declaration of his intention to become a citizen, and renounce all allegiance to his former government two years before he could make a final application.
Therefore, it does not require a leap of faith to understand what persons, other than citizens themselves, under the Fourteenth Amendment are citizens of the United States by birth: Those aliens who have come with the intent to become U.S. citizens, who had first compiled with the laws of naturalization in declaring their intent and renounce all prior allegiances.
Sen. Trumbull further restates the the goal of the language: “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens...” He could only be referring to the laws of naturalization and consent to expatriation by the immigrant in order for him to come completely within the jurisdiction of the United States and its laws, i.e., he cannot be a subject of another nation.
A citizen owes the same quality of allegiance to their nation of origin as does their country’s ambassador and foreign ministers while within the limits of another nation unless they freely decide to renounce their allegiance in accordance to law. In other words, it would be preposterous to consider under the meaning given to “subject to the jurisdiction thereof” that a French subject visiting the United States was not a subject of France, but completely subject to the will of the United States while within the limits of the nation without first consenting to expatriation.
Would anyone for a moment contend Japanese citizens were not subjects of Japan? Why the government of Japan guarded over Japanese workers in the United States like hawks, even insisting on educating them in Japanese schools.
The United States has always, as a matter of law, considered new arrivals subjects of the country from which they owed their allegiance. As a matter of law, new arrivals were recognized as bearing the allegiance of the country of their origin. No more is this evident then with the recording of the certificate of intent to become a citizen of the United States:
James Spratt, a native of Ireland, aged about twenty-six years, bearing allegiance to the king of Great Britain and Ireland, who emigrated from Ireland and arrived in the United States on the 1st of June 1812, and intends to reside within the jurisdiction and under the government of the United States, makes report of himself for naturalization according to the acts of congress in that case made and provided, the 14th of April anno domini 1817, in the clerk’s office of the circuit court of the district of Columbia, for the county of Washington: and on the 14th of May 1817, the said James Spratt personally appeared in open court, and declared on oath, that it is his intention to become a citizen of the United States, and to renounce all allegiance and fidelity to every foreign prince, &c.
James Spratt would be considered completely subject to the jurisdiction of the United States with owing no other nation his allegiance under the Fourteenth Amendment. Children born to him would under the Fourteenth Amendment, be citizens of the United States even though he might not yet been awarded citizenship himself. It should be pointed out that woman were not naturalized individually, but only became naturalized by virtue of marriage to a male who became naturalized himself.
Those who were not qualified under naturalization laws of the United States to become citizens of the United States would be unable to renounce their prior allegiances and consent to the full jurisdiction of the United States as needed to become a citizen. This is how children born to Indian’s and Asians were prevented from becoming citizens themselves under the language chosen.
What changed after the adoption of the Fourteenth Amendment? Not much really. States adopted laws that excluded either “transient aliens” or those not resident of the State. New York had already a 1857 code that read, “All persons born in this state, and resident within it, except the children of transient aliens, and of alien public ministers and consuls…”
After the adoption of the Fourteenth Amendment, California, Montana and South Dakota adopted identical language as New York.
In 1898, some thirty years after the adoption of the Fourteenth Amendment, the United States argued a Chinese man born to Chinese parents in San Francisco could not be a citizen of the United States because his parents were not subjects of the United States at the time of his birth, but the subjects of the emperor of China. (U.S. v. Wong Kim Ark)
The Government had it right and the Supreme Court got it all wrong (deliberately) by deciding the language under old English common law, something the adopted national rule departed sharply from. Additionally, Howard made no reference to citizenship as having anything to do with common law, but virtue of “natural law” and “national law.” Under old English common law, neither expressed allegiance or, the lack of it, was a requirement for birthright. The Thirty-Ninth congress by contrast, made the lack of owing allegiance to some other sovereignty an advance prerequisite, and by doing so, departed from the common law rule.
If there is one inescapable truth to the text and debates, it is this: When Congress decided to require potential citizens to first be subject to the complete jurisdiction of the United States they by default excluded all citizens of other nations temporarily residing in the U.S. who had no intention of becoming citizens themselves or, disqualified of doing so under naturalization laws. This was no oversight because it was too simple to declare the common law rule of jus soli if indeed that was truly the desired goal by these very competent lawyers (both Howard and Trumbull were lawyers). Instead, there were classes of persons no one desired to make citizens, while also being classes of persons national law prohibited from becoming citizens.
Aaron Sargent, a Representative from California during the Naturalization Act of 1870 debates said the Fourteenth Amendment’s citizenship clause was not a de-facto right for aliens to obtain citizenship. No one came forward to dispute this conclusion.
Perhaps because he was absolutely correct.
Because the tribes and nations of Native Americans eventually negotiated with the US government via the BIA to accord their members special status - Native Americans now effectively have dual citizenship as citizens of their tribe/nation and as citizens of the United States. Before that Native Americans were legal residents of the US but not citizens.
When they are on the territory of their tribal land they are under the jurisdiction of their tribal government and when they are on US sovereign territory they are under the jurisdiction of the US government per the Snyder Act. And even in tribal lands the tribal governments are not sovereign - they are basioally like tiny states that are still under federal jurisdiction but not under any state jurisdiction.
It is impossible to analogize their situation of Native Americans either before or after the Snyder Act to illegal aliens because there is no territory within the United States that has intermediary jurisdiction over illegals the way a tribal government has intermediary jurisdiction.
In other words, you lack the intellectual resources to make a succinct argument in your own words.
I'm not particularly surprised.
Amend the 14th. Change the first section. I agree on ex post facto.
wideawake wrote: “It should be obvious to anyone with a passing familiarity with the US Constitution that we have birthright citizenship... If you want to end brithright citizenship, you will have to amend the Constitution.”
The constitution WAS amended to put put the Anchor Baby provision in it, perfesser. For anyone who has MORE than “a passing familiarity with” the US Constitution, it should obvious:
“Why does the United States continue to allow a practice subject to widespread abuse? The answer lies in how American courts have interpreted the 14th Amendment to the Constitution.”
“The 14th Amendment was added to the Constitution as part of the post-Civil War reforms aimed at addressing injustices to African Americans. It states that ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States’ and was crafted so that state governments could never deny citizenship to blacks born in the United States. But at the time, the United States had no immigration policy, and thus the authors saw no need to state that explicitly.”
“The phrase ‘subject to the jurisdiction thereof’ was intended to exclude from automatic citizenship American-born persons whose allegiance to the United States was not complete. In the case of illegal aliens who are temporarily or unlawfully in the United States, because their native country has a claim of allegiance on the child, the completeness of the allegiance to the United States is impaired and logically precludes automatic citizenship.”
-snip-
“The 14th Amendment stipulates that Congress has the power to enforce its provisions by enactment of legislation, and the power to enforce a law is necessarily accompanied by the authority to interpret that law. Therefore, an act of Congress stating its interpretation of the 14th Amendment, as not to include the offspring of illegal aliens, would fall within Congress’s prerogative.”
http://www.fairus.org/site/PageServer?pagename=iic_immigrationissuecenters4608
Good point, but they are “subject to the jurisdiction thereof” once here.
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