Posted on 03/29/2010 1:12:55 PM PDT by OldDeckHand
George Will has never been particularly good on immigration, so I was a little surprised by his column calling for an end to automatic citizenship at birth (specifically, for the U.S.-born children of illegal aliens). This has been debated on the Corner before, and I've argued against such a change, but I think it's worth revisiting.
There are three issues: legal, empirical, and political. The first is the easiest — there just is no way to argue with a straight face that the drafters of the 14th amendment intended to give citizenship to the children of illegal aliens (Will persuasively cites this law review article by Lino Graglia). In fact, the amendment probably wasn't meant to apply even to U.S.-born children of legal immigrants who hadn't yet become citizens, though the Supreme Court decided otherwise in the 1898 Wong Kim Ark decision.
Second is the empirical question. Will writes:
A parent from a poor country, writes professor Lino Graglia of the University of Texas law school, "can hardly do more for a child than make him or her an American citizen, entitled to all the advantages of the American welfare state." Therefore, "It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry."
This may or may not be true. We can theorize about incentives all we want, but I haven't seen any real research on the motivations of people considering illegal immigration to the United States....
(Excerpt) Read more at corner.nationalreview.com ...
“I haven’t seen any real research on the motivations of people considering illegal immigration to the United States....”
Just go to a border town in South Texas at the Wal-Mart and talk to an ambulance driver. He waits at Wal-Mart for the mom’s water to break, takes her to the hospital, drops her off, and returns to Wal-Mart for the next one. Quite a lucrative business I hear.
Haven’t seen any real research on a motivation for illegal immigration? Best chuckle I’ve heard all day.
No, the ruling doesn't specify - at least not the legal holding portion of the decision
In that case, the parents were NOT here in violation of US law.
One cannot as a matter of logic or legal analysis state as a conclusion that Wong Kim Ark holds that parents who ARE here in violation of US law are also "subject to the jurisdiction thereof" for purposes of the Fourteenth Amendment.
And the fact that Congress at the time of Wong Kim Ark had not yet decided to adopt legal prohibitions on foreign nationals residing in the U.S. makes the case even LESS relevant to the question of what "subject to the jurisdiction thereof" means for foreign nationals here in violation of U.S. law. The facts are simply inapposite to our question.
I think that there might be a little confusion. Birthright citizenship right in America is established under two principles jus soli, and ius sanguinis. Jus soli is what is applicable in your examples. Irrespective of the visa status of the parent, if a child is born on US soil (provided their parents aren't foreign diplomats enjoying diplomatic immunity), then they are US citizens, or so the Supreme Court has held.
Changes to Visa regulation would be immaterial until such time as the Court reverses itself, or a constitutional amendment is passed.
Let's use some logic here, if they aren't subject to the jurisdiction thereof", then they can't be in violation of US law, right? In this regard, their immigration status is immaterial.
You are subject to the jurisdiction thereof unless you enjoy diplomatic immunity. It isn't a relative condition. Like pregnancy, you either are, or you are not. You can't say that you're "subject to the jurisdiction thereof" if you murder someone, but at the same time say that you are not "subject to the jurisdiction thereof" for purposes of the 14th Amendment. It's as simple as that.
I'm not saying I wish it to be that way, but I understand that is the legal reality as the law exists today.
You are subject to the jurisdiction thereof unless you enjoy diplomatic immunity
Offering your own conclusive speculation as to what a particular English language phrase might mean to your mind is interesting, but it takes us further away from points relevant to the question of whether Congress could by statute enforce the Fourteenth Amendment in a way that interprets "subject to the jurisdiction thereof" to exclude childen of foreign nationals here illegally and to what extent the Supreme Court would accede to that view.
No, Wong covers ‘em all. You have to read the case but it is very clear that birth on the country, with two exceptions, equals citizenship. Period.
parsy, who has had this discussion on other issues
Ping.
...and is also a citzen of the U.S.
It's not speculation, and it's not the meaning in "my mind". It's just the meaning. It's plain to anyone who spent more than two weeks in law school. In this instance, it's referring to territorial jurisdiction. This condition is absolute. You either do or do not fall within the territorial jurisdiction of the US.
Your reading the phrase only as it pertains to immigration. But, do you realize that same phrase was also included in the 18th Amendment - something that clearly had nothing to do with immigration or citizenship. That phrase is what gives the US sovereign power to prosecute people within its jurisdiction. If you're not "subject to the jurisdiction thereof", then you are beyond the reach of America's legal system. As such, you could commit murder, rape or any crime and avoid prosecution precisely because you wouldn't be under the jurisdiction of US law. Of course, such an exemption only applies to people who enjoy diplomatic immunity. Everyone else, is subject to the jurisdiction thereof.
Your views on pretty much anything carry very little weight with me.
Are there no ambulances out and about?
Parsy, believe it or not, I’m holding out hope that you will indeed score that big multi-million dollar contingency fee in a personal injury case that will lead you to that life of luxury in which you will have better things to do than spam FR threads.
Wong Ark and 14th Amendment discussion.
Who’s spamming? Facts is facts whether they tick you off or not. You don’t have to believe me. Read the case. Read this guy:
http://www.ilw.com/articles/2007,0212-ho.pdf
parsy, who says “Toodles.”
Will gets it wrong. There are no anchor babies under current law. In 1996 they eliminated that. Custody follows the parents not the child.
Thus the US citizen child goes with the deported parents and may return when it is 18.
In addition the US citizens child has to live the in the USA for TEN YEARS to have its offspring claim us citizenship.
But George will should stick to writting badly about baseball. (efete elite DC strikes again)
Will doesn't use the phrase "anchor babies", I did. And, it wasn't in the context of a dependent child's citizenship status acting as legal "anchor" for their illegal parents. But rather, it was used just as a turn of phrase to describe the current situation as it pertains to "birthright citizenship" with respect to children of aliens, legal or otherwise.
Wong Kim Ark is bad law on for 2 reasons.
1) It willfully disregarded the intent and meaning of the 14th Amendment, and
2) It further violated the US Constitution by ignoring the treaty with the Empire of China by arbitrarily making children born in the US of foreign parents citizens, which violated the will of the US government and China, that they must remain alien.
The Eighteenth Amendment refers to “subject to the jurisdiction” in connection with “territory.” The Fourteenth Amendment refers to “subject to the jurisdiction therof” in connection with “persons.” The phrase is being used in connection with different objects and for different purposes and must be interpreted taking those differences into account.
You never responded to my hypothetical of children born to parents of foreign nationals on a foreign military campaign on U.S. territory. The United States would not concede that such a force has a lawful right to be present on U.S territory or that the U.S. has relinquished its right to jurisdiction in the place where such children were born.
Under your simplistic analysis, such children would be U.S. citizens because the U.S. asserts jurisdictional rights over the “territory” on which such children were born. Such a result is of course, absurd, because it doesn’t take into account the status of the persons to whom such children were born relative to our laws.
birthright citizenship and anchor babies are two totally different leagal issues. They do not interchange.
Yep that's right. Jurisdiction applies to people, subject matter and territory. How does that negate my point? Yep, it doesn't.
"You never responded to my hypothetical of children born to parents of foreign nationals on a foreign military campaign on U.S. territory"
I never answered it because it's a hypothetical and irrelevant to the topic of illegal immigrants. They're illegal immigrants, and not an army under arms, carrying a foreign flag. If you believe such an hypothetical application of Ark is feasible, then the argument has devolved into such absurdity, it becomes pointless.
"Under your simplistic analysis, such children would be U.S. citizens because the U.S. asserts jurisdictional rights over the “territory” on which such children were born."
Reductio ad absurdum - look it up.
You still either can't, or don't want to, comprehend that people can only be (your words) in "violation of our laws", if they are indeed "subject to the jurisdiction thereof". If they aren't under US jurisdiction - either territorial, personal or subject matter jurisdiction - then there can be no violation of US law.
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