Posted on 12/04/2007 11:29:33 AM PST by yorkie
Arizona voters may be asked to decide whether to prohibit the state from issuing birth certificates to children of non-U.S. citizens and require hospitals to check the citizenship of parents of newborns.
Those are key provisions of a proposed initiative filed Friday for possible inclusion on the November 2008 ballot, and a leading legislative critic of illegal immigration says he plans similar but separate legislation to take the issue to voters.
Della Montgomery, the woman who filed the proposed initiative with the Secretary of State's Office, did not immediately return a call for comment Monday, but the proposed “Birthright Citizenship Alignment Act” appears to be aimed at illegal immigration. “They are awarding the full privileges of United States citizenship of all persons born in the state without regard for the clear and equal requirements of federal law that a person born in the United States, shall citizenship be bestowed, shall not be subject to any foreign power and owe direct and immediate allegiance to the United States,” the proposed initiative's declaration of purpose states.
Some critics of illegal immigration contend that the U.S. Constitution's 14th Amendment has been misapplied and was never intended to automatically grant citizenship to babies of illegal immigrants.
The constitutional provision was enacted after the Civil War and was meant to apply to former slaves, said Rep. Russell Pearce, R-Mesa. “It has nothing to do with aliens.”
Supporters of the proposed initiative would need to submit signatures of at least 153,365 voters by July 3 to qualify the measure for the ballot, while legislative approval alone would be enough to put a referendum being drafted by Pearce on the ballot.
While generally banning issuance of birth certificates to non-citizens, the measure would permit one to be issued to a child whose mother is a foreign citizen and whose father is a U.S. citizen if the father formally acknowledges parentage and agrees in writing to financially support the child until adulthood.
The initiative also would require that hospitals submit “certified documentation of the parents' United States legal status” to local registrars with birth certificates for newborns.
Link to the treaty with Mexico. Name that treaty since Mexico is what the article is about.
Read post #89 and check out the links, just possibly you might learn something, although I am not going to hold my breath.
Very interesting and pertinent discussion here:
http://federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction.html?go
of course there’s a paradox. It allows people who are illegally in the country to establish an anchor here, simply by sneaking across the border in time to pop out a baby. That’s an absurdity, and it can’t possibly have been the intention of the framers of the citizenship clause. What you’re telling us is that we have three choices. We can try to deport the baby, in which case we prove it’s “subject to our jurisdiction” and therefore it immediately becomes a citizen which can’t be deported. We can deport the parents and leave the baby here, but by leaving it here we take responsibility for it and again, that means it’s “subject to our jurisdiction” and it becomes a citizen. Or finally, we can just look the other way and allow the baby and its parents to stay here unofficially.
That’s absurd.
Before there was such a thing as Political Correctness, there was something called common sense. Believe it or not, it once even applied to the law.
Here’s an example. In my state of Tennessee, we amended our state constitution last year to limit marriage to one man and one woman. Until we added that amendment, the constitution was silent on the issue. Why was it silent? Was it because the men who wrote our original state constitution supported same-sex “marriage”? Of course not. Common sense would tell you that’s not the case. The reason our constitution was silent was because the idea of two people of the same sex “marrying” was such an absurdity that no one ever thought anyone would be imbecilic enough to propose it, let alone to claim it as a “right guaranteed by the constitution”. However, with the death of common sense and the rise of PC, we saw judges in various venues trying to engineer same-sex “marriage”, so we felt the need to amend our constitution to stop it.
But the point is, we shouldn’t have had to do that. We only had to do it because, in the proverbial words, the law has become an ass.
When the framers of the 14th Amendment wrote the citizenship clause and the equal protection clause, they never imagined some of the garbage that would come down from on high decades in the future. If they had, they would certainly have been more cautious with their language. But they assumed that everyone knew what the phrase “equal protection of the law” meant because they were operating in a time when common sense still had some applicability. They never dreamed some dimwit would “interpret” it as requiring women to be admitted to the Citadel.
Likewise, they wrote the citizenship clause within a framework of common sense. The idea that babies of people illegally in the country become citizens by virtue of their physical presence on our side of the border is an absurdity.
"This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared [112 U.S. 94, 102] to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. This view is confirmed by the second section of the fourteenth amendment, which provides that 'representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.' Slavery having been abolished, and the persons formerly held as slaves made citizens, this clauses fixing the apportionment of representatives has abrogated so much of the corresponding clause of the original constitution as counted only three-fifths of such persons. But Indians not taxed are still excluded from the count, for the reason that they are not citizens."
http://laws.lp.findlaw.com/getcase/us/112/94.html
Great link! Thanks!
However, we live in a nation of laws, not of men - making the slanted biographies of various individuals you've provided utterly irrelevant to the question.
The entire substance of the argument hinges on Senator Howard's contention that the 14A does not confer citizenship on "persons born in the United States who are foreigners." That's the point of contention here, as everyone agrees that aliens and diplomatic families are not citizens.
the question is: what is a "person born in the United States who is a foreigner"?
Senator Howard's wording begs the question with its vagueness, apart from the fact that his claims are not a definitive interpretation of the legislation.
The concrete discussions that took place regarded Chinese immigrants who, at that time, were indeed foreigners and their children were also foreigners because - by formal treaty - Chinese subjects born in the USA retained their Chinese nationality as a condition of the Chinese Emperor permitting the emigration of Chinese subjects.
I will point out that at the time of the 14A debates in Congress non-citizen subjects of the British crown from Ireland were having children who grew up as US citizens.
Post 89 is so much special pleading.
Yep! It’s obvious to anyone without an agenda that a baby born to someone illegally in our country isn’t covered by the citizenship clause. Being subject to our jurisdiction has a more focused meaning.
In 1868 there were British subjects from Ireland who were not naturalized citizens of any US state who were living and working in the USA. They had children in the USA and those children were considered citizens of the USA.
Such children were functionally the "anchor babies" of the 1870s.
We can try to deport the baby, in which case we prove it’s “subject to our jurisdiction” and therefore it immediately becomes a citizen which can’t be deported. We can deport the parents and leave the baby here, but by leaving it here we take responsibility for it and again, that means it’s “subject to our jurisdiction” and it becomes a citizen. Or finally, we can just look the other way and allow the baby and its parents to stay here unofficially.
Then there is the fourth and most rational option: deport the parents and allow them to take their citizen child with them to their home country.
In my state of Tennessee, we amended our state constitution last year to limit marriage to one man and one woman.
Not analogous.
To repeat, there were plenty of people in the USA in 1868 who were citizens, although they were the children of citizens of foreign nations who were not naturalized US citizens at the time of their birth.
In 1868 sodomy was illegal and therefore so was the bizarre notion of a homosexual "marriage."
Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.
However, this sentence discussed three classes of people:
(1) "Indians born within the territorial limits of the United States"
(2) "the children of subjects of any foreign government born within the domain of that government"
and
(3)"the children born within the United States, of ambassadors or other public ministers of foreign nations"
The children of non-US citizens we are discussing are not members of Indian tribes.
They are not born within the domain of a foreign government.
They are not children of accredited diplomats.
They fall within none of the three categories the passage you quoted discusses.
You call it character assassination because your guilt by association is evident. The Frankist effort to collectivize property and destroy citizenship and sovereignty in this country for the pleasure of a morally and politically corrupt elite goes back to before its founding. Conkling and Bingham's efforts were merely actions of witless and craven agents. So it's not character assassination to show a corrupt process in action, one that you obviously support. It's not character assassination to quote two chief justices on why you are wrong, one of whom was contemporary with the drafting and ratification of the 14th Amendment. Still, it's fun to see you twist and shuffle now that you know how weak your case really is.
The entire substance of the argument hinges on Senator Howard's contention
No, it hinges on the contemporary legal definition of the word "subject" and its consequences at the time the Amendment was drafted and ratified. You lose there, so you omit any comment. That's dishonest spin, not debate. See: "shuffle."
The concrete discussions that took place regarded Chinese immigrants who, at that time, were indeed foreigners and their children were also foreigners because - by formal treaty - Chinese subjects born in the USA retained their Chinese nationality as a condition of the Chinese Emperor permitting the emigration of Chinese subjects.
Which elevates US v. Wong Kim Ark to a legal travesty, as Fuller makes eminently clear. It's almost as bad as Bridges v. Wixon. Your citation of the particulars of the case ignore the point that Fuller deals with the question in principle and on topic. You may believe that it is extraneous dicta, but it is both applicable to the case and stands on its legal and political reason.
I will point out that at the time of the 14A debates in Congress non-citizen subjects of the British crown from Ireland were having children who grew up as US citizens.
This is your strongest precedent, but it's precedent without statutory support, as if that somehow trumps the Constitution. It relies upon the claim, "We got away with it for a long time and elected officials didn't do anything about it. So we say it's legal," which is blatantly subjectivist flouting of the rule of law, almost Sabbatean in its arrogance.
" The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance."
How an illegal immigrant qualifies under that definition is beyond me.
Empty verbiage. You like listening to yourself blather.
it hinges on the contemporary legal definition of the word "subject"
If that's the case, then the children of foreigners are clearly subject to US jurisdiction.
You seem to be confused between "subject" in its jurisdictional sense and "subject" as used to describe citizens of monarchies.
Which elevates US v. Wong Kim Ark to a legal travesty
Not at all. The 14A guarantees to all US persons the right of equal protection of the laws.
The treaty with China, which was signed before the passage of the 14A, asserted the Chinese Emperor's right to execute any Chinese person who refused his allegiance.
Therefore, the deportation of Wong Kim Ark was tantamount to a death sentence being imposed on Ark by the state of California, a state which had considered him a legal resident if not a citizen his entire life.
The court ruled justly.
It relies upon the claim, "We got away with it for a long time and elected officials didn't do anything about it. So we say it's legal," which is blatantly subjectivist flouting of the rule of law, almost Sabbatean in its arrogance.
Yawn. Let's tone it down a notch, shall we?
The issue is not one of "getting away with it" - it is one of relying on common law when there is no specific legislation to the contrary.
If the 14A has wished to substitute a new definition of jurisdiction to replace the old common law one, it would have had to have specifically done so. It did not.
Illegal immigrants don't. But their children do.
—”Surely a child born to an illegal alien is not subject to the jurisdiction of the US.”
Interesting point.
So, if I get where you’re going, the child could not be deemed “subject to the jurisdiction thereof” until they would be old enough to commit a legal offense.
—”That kind of shaky interpretation”
The man who drafted the citizenship clause of the Amendment, Sen. Jacob Howard, noted that it “... 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.”
“what does “subject to the jurisdiction of,” mean?”
Well, it appears clear beyond doubt that the Republican Congress, immediately following the Civil War/War Between the States, intended the 14th Amendment to mean that anyone who could waddle across our southwestern border and drop their child in an American hospital, at our expense—well, then that child is an American and also a serviceable anchor for scores of his/her relatives.
And there should be no quibbling or argument, particularly over whether the 13th, 14th and 15th amendments were specifically passed to protect freed slaves and their children (with hazy memories of Africa and certainly not anxious to return, Liberia to one side) not subject to the jurisdiction of their former tribes, whereas conventional wisdom and experience is that Mexicans remain Mexicans, in spirit and practice, while availing themselves of American largesse. No, that’s all nativist hatred, not argument.
However, “the right of the people to keep and bear arms” could mean just about anything you know, so let’s litigate its meaning until free men/gun nuts simply give up and turn over their rifles and handguns to the proper authorities and the notion of a “free republic” is as strange to our grandchildren as the notion of “American citizenship” will be to our children.
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