Measure would target birthright citizenship

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.

Illegal aliens crossing into the U.S. are no more "fully under US jurisdiction" than Patton's Third Army was "fully under German jurisdiction" when it crossed into Germany.

The United States and Mexico are not at war. Clearly you are substituting emotional arguments for logical ones.

The point being debated is whether or not the mere physical presence of a person or persons within the territorial limits of a country fulfills the requirements of the Jurisdiction Clause of the 14th Amendment, especially when the physical presence is against the wishes of sovereign government of the country in question.

While the U.S. and Germany were at war in 1945, that does not change the issue to any significant extent. Let us change Patton's Third Army in 1945 to Pershing's Mexican Expedition of 1916-17 when the U.S. was not at war with the Republic of Mexico and Pershing's men were on Mexican soil whether the Republic of Mexico liked it or not.

Would the men of Pershing's Expeditionary force be considered "under the jurisdiction of the Republic of Mexico" as a result of physically being on Mexican soil?

No. Such persons not considered to be "under the jurisdiction of the Republic of Mexico".

Under international law, if you visit Israel with your family, can your 18 year old American citizen, non-Israeli citizen son be drafted into the IDF because he is physically on Israeli soil?

No. Your son is not considered to be "under the jurisdiction of the State of Israel" for such matters as he is a foreign citizen.

If the U.S. institutes a military draft, can the the U.S., under international law, draft a Mexican illegal alien and then imprison him for draft evasion if he refuses induction into the U.S. Armed Forces?

No. Under international law, the U.S. can deport him to Mexico or imprison him for illegal entry into the U.S. but it cannot imprison him for draft evasion because that Mexican national who is neither a U.S. citizen nor a U.S. resident alien (Green Card holder) is not considered, under international law, to be "under the jurisdiction of the United States" and it is therefore illegal, under international law, to draft him into the U.S. Armed Forces.

You can't have it both ways. If you have a class of people be they tourists, ambassadors, traveling merchants or merely illegal trespassers, you either have them "under the jurisdiction" of the country they are physically in or not.

"Jurisdiction thereof", in the originally intended context of the 14th Amendment, means the power, under international law, to send and legally enforce one of these:

If clauses are in the Constitution, they are there for a purpose and not merely to waste ink and paper.

If the "under the jurisdiction thereof" does not apply to a foreign trespasser who is illegally on U.S. soil and actively hiding from the U.S. Government, then who on Planet Earth does the "Jurisdiction Clause" apply to?

Who?

Would the men of Pershing's Expeditionary force be considered "under the jurisdiction of the Republic of Mexico" as a result of physically being on Mexican soil?

Absolutely.

As a sovereign nation Mexico would certainly have asserted its right to arrest any of Pershing's men and subject them to the full authority of Mexico's justice system.

Under international law, if you visit Israel with your family, can your 18 year old American citizen, non-Israeli citizen son be drafted into the IDF because he is physically on Israeli soil?

Again, you confuse being under the jurisdiction of a state with citzenship in a state.

According to the 14A, to be a citizen (and thus subject to selective service, entitled to vote, etc.) you must be both under the jurisdiction of the US (as every single illegal immigrant obviously and naturally is) and born/naturalized in the US (as no illegal immigrant can be, by definition).

This is why illegal immigrants are not citizens - because they cannot meet one of the two criteria. This is also why their children born in the USA are citizens: because they are both under US jurisdiction and born in the US.

Would the men of Pershing's Expeditionary force be considered "under the jurisdiction of the Republic of Mexico" as a result of physically being on Mexican soil?

Absolutely. As a sovereign nation Mexico would certainly have asserted its right to arrest any of Pershing's men and subject them to the full authority of Mexico's justice system.

As I said before, the original context of the Jurisdiction Clause would entail FULL jurisdiction, as in:

"Greetings: You have been drafted and are now part of the Mexican Army".

As to law enforcement, while Mexico might have a de jure argument in regards to arresting members of Pershing's forces, the de facto reality would have been that any Mexican authorities attempting such arrest in 1917 would have been met with armed force.

Under international law, if you visit Israel with your family, can your 18 year old American citizen, non-Israeli citizen son be drafted into the IDF because he is physically on Israeli soil?

Again, you confuse being under the jurisdiction of a state with citzenship in a state.

No, I am applying the original intent of the meaning of the Jurisdiction Clause.

The Jurisdiction Clause was meant to imply FULL jurisdiction and, for that, you do not need to be a citizen. In 1972, while a legal resident alien with a Green Card and not yet a U.S. citizen, I had a draft number and a draft card and was legally liable to be drafted into the U.S. Armed Forces. After I became a citizen, that remained the case until the day I joined the Navy.

Legal resident aliens and U.S. citizens can be legally drafted into the U.S. Armed forces because they are under the FULL jurisdiction of the United States of America but a Mexican illegal aliens cannot be drafted because they are under the full jurisdiction of the Republic of Mexico. The former meet the original intent of the Jurisdiction Clause. The latter do not.

Mere law enforcement does not meet that original intent of the Jurisdiction Clause as every POW in U.S. custody was subject to U.S. military law but were never meant to fulfill the Jurisdiction Clause.

If the perversion of the original intent of the Jurisdiction Clause were applied in a fanciful "what if" scenario, a foreign power could capture one of the Aleutian Islands, as the Japanese did with the American Aleutian island of Attu, militarily hold it for 25 years and use it as a Birthing Center to fly in tens of thousands of pregnant women to produce tens of thousands of "U.S. citizens" who would then be trained by that foreign power and then, when they are young adults, be sent back "home" to the good ole U.S. of A. because they are, after all, "Born in the U.S.A."

The original intent of the Jurisdiction Clause of the 14th Amendment is crystal clear by the fact that, until the 1924 Indian Citizenship Act, being a full-blooded member of the Seminole Nation in Florida was considered enough reason that you were NOT fulfilling the Jurisdiction Clause of the 14th Amendment to be considered a U.S. citizen by birth even if you were born and raised in Okeechobee, Florida, U.S.A.

"Jurisdiction thereof", in the originally intended context of the 14th Amendment, means the power, under international law, to send and legally enforce one of these: .... Draft Notice

Then, according to this analysis, the framers of the 14A believed that no woman or minor child in America was under US jurisdiction. In other words: your analysis is way, way, way off.

Were Draft Notices sent to women and children?

No, they were not.

You want U.S. Supreme Court case law that also specifically applied to women and children and not just men?

Fine. Here it is:

Elk v. Wilkins, 112 U.S. 94 (1884), ............... John Elk, a Native American was born on an Indian reservation and subsequently moved to non-reservation U.S. territory, Omaha, Nebraska, where he renounced his former tribal allegiance and claimed citizenship by virtue of the Citizenship Clause. The case came about when Elk attempted to register to vote on April 5, 1880, and was denied by Charles Wilkins, the named defendant, who was registrar of voters of the Fifth Ward of the City of Omaha. ............The Court held Elk was not “subject to the jurisdiction” of the United States at birth. “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.”[3]

"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 completely subject to their political jurisdiction, and owing them direct and immediate allegiance"

Those were the words of the United States Supreme Court in 1884, sixteen years after the 14th Amendment was ratified.

Let me explain this to you in a systematic way:

(1) The 14A says that people are citizens if they are both:

(a) either born in the US or naturalized in the US

and

(b) under US jurisdiction.

Both circumstances must apply in order to be a citizen.

(2) Examining criterion (a) we should be able to agree that being born on US soil means exactly what it says.

(3) Furthermore regarding crierion (a) we should be able to agree that being naturalized means someone who is (i) a legal resident of the US and (ii) has fulfilled the requirements set by Congress for earning US citizenship.

(4) The main point of contention seems to be criterion (b) i.e., what "subject to the jurisdiction" of the US means.

You say that it means eligible for conscription.

Your claim is clearly wrong. If your claim were true, all women born and living in the USA would not be citizens since only one of the two necessary criteria for citizenship would apply to them.

It is obvious that "subject to the jurisdiction of the US" has a broader meaning than simply eligibility for conscription.

"Jurisdiction" means simply (a) the territorial extent of a court's authority (e.g. the New York State Court Of Appeals has jurisdiction in New York State, but no jurisdiction in Nebraska) and (b) the range of matters which the court has competency to try (e.g. the Knox County Criminal Court has jurisdiction over criminal matters, but it is not a probate court and cannot rule in matters of trusts and estates in Knox County).

The jurisdiction of the US is clear: the Constitution gives the US judiciary full jurisdiction over US territory and full jurisdiction in all matters of law and equity.

Is any territory excepted from this jurisdiction? In certain areas, tribal land located on Native American reservations has been excepted from this jurisdiction. Another exception is the treatment of ambassadorial/consular premises of foreign nations as legally belonging to the nation whose accredited ministers are residing/working on those premises. There are no other exceptions.

Are any persons (not citizens, but persons) excepted from this jurisdiction? Historically, Native Americans resident on tribal land have been excepted from this jurisdiction. Anotehr exception has been consular staff and their immediate families. There are no other exceptions.

Are any criminal or civil matters excepted from this jurisdiction? No. Every single legal matter in the US can be appealed to the federal judiciary and can be enforced if necessary by the federal executive upon that appeal.

Persons present on US soil, whether they are on US soil legally or illegally, are under US jurisdiction.

Their children born on US soil are also under US jurisdiction and are therefore citizens.

Your point about Pershing's men, that obviously the Mexican government lacked the wherewithal to arrest them, does not take away the fact that they were under Mexican jurisdiction as far as the Mexican government was concerned.

Your other limit case regarding a theoretical breeding colony on Attu also doesn't apply because such individuals, while born on US soil and theoretically - not practically - subject to US jurisdiction at the time of their birth, by being "trained by a foreign power" in a foreign land could be shown to have substantively transferred their allegiance from the US to another power, thereby de facto renouncing their citizenship.

Likewise, if the US citizen child of illegal immigrants were to consciously choose to live in Mexico as a Mexican after attaining majority or if they served in the Mexican military or some other official government capacity, the same could be said of them.

Let me explain this to you in a systematic way: (1) The 14A says that people are citizens if they are both: (a) either born in the US or naturalized in the US and (b) under US jurisdiction.

Exactly.

Where we disagree is that:

(a) My defintion of "under US jurisdiction" coincides with what the United States Supreme Court stated in Elk v. Wilkins, 112 U.S. 94 (1884) that it was, to wit: “..... completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”

(b) Your defintion of "under US jurisdiction" coincides with what the United States Supreme Court stated in Elk v. Wilkins, 112 U.S. 94 (1884) that it was NOT, to wit: ............... "merely subject in some respect or degree to the jurisdiction of the United States....”

You say that it means eligible for conscription.

If you want to be that literal about it, I will withdraw that phrasing and substitute:

"It means, for example, being eligible for conscription, in regards to a person who is not, among a great many other things, a woman or a 5 year old child or or 4-F or a murderer on death row or (Fill in the blank)."

It's so simple that anyone can understand it. You've seen those signs on businesses that say "shirt & shoes required". It doesn't say pants are required, so does that mean you can waltz in without pants?

Of course not. It's taken as a given that you have to wear pants. It's so obvious that anyone trying to argue otherwise is just being troublesome or has some ludicrous agenda (indecent exposure, perhaps).

Likewise, it's simply taken as a given that any woman giving birth to a baby within our borders has a legal right to be here. Otherwise, she isn't supposed to be here.

The framers of the citizenship clause clearly had no intention of granting citizenship to the offspring of women illegally in the country.

When a nation loses its common sense, great pains have to be taken to explain things to people who really should know better. Today, in PC America, we have to explain why two people of the same sex can't marry. We have to explain that a new human life begins at conception. And we have to explain that it's taken as a given that if you're inside our borders, you must have a legal right to be here. Pretty soon we'll have to explain why we need to wear pants when entering Burger King.

Your posts in this thread have been very informative. And they're based on both law and common sense.

Those were the words of the United States Supreme Court in 1884, sixteen years after the 14th Amendment was ratified.

Yes, and they apply to an individual who was born on a reservation - i.e. territory which was not under US jurisdiction. Simply renouncing his tribal citizenship could not make him a citizen, he would have had to fulfill the terms of a legal naturalization to be eligible to vote. This has nothing to do with, say, a Martin Velasquez born in Elmhurst Hospital in New York City on land that was fully subject to US jurisdiction.

The Supreme Court decision was not made on the basis of where Elk was born. In fact, the Supreme Court thought that his birth on a reservation was totally irrelevant to the case and even conceded that:

"The plaintiff is an Indian, and was born in the United States ....."

The Supreme Court decision was made on the basis of the allegiance of his PEOPLE:

The question then is, whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States, within the meaning of the first section of the fourteenth amendment of the constitution. Under the constitution of the United States, as originally established, 'Indians not taxed' were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several states; and congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the states of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit, either through treaties made by the president and senate, or through acts of congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States.

"The members of those tribes owed immediate allegiance to their several tribes, and WERE NOT PART OF THE PEOPLE of the United States."

In that same decision, the Supreme Court went on to state:

"The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U. S. 303, 306.

The Supreme Court did not care if a future "Martin Velasquez" was "born in the United States".

It based its decision on whether or not a future Martin Velasquez's PEOPLE owed "allegiance to any alien power" when he was born on U.S. soil.

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