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 ...
As a technical matter of law, that's true. But, as a practical matter of public discourse, I don't think it is. If you polled most people and asked them to define "anchor baby", I believe an OVERWHELMING percentage of them would define it as a child born to an illegal alien. I was using in the latter context, not the former.
it is VERY important with the likes of turbin Durbin trying to pass the dream act where citizenship will no longer be required in order to be an anchor baby. Just a public school ATTENDANCE!
Because it can have a different application depending on the object or purpose with respect to which the concept is applied. At the time of adoption of the Fourteenth Amendment senators spoke of the "extent and quality" of the jurisdiction to be applied. Your "pregnancy" analogy is oversimplified as applied to these cirumstances.
You are entitled to your opinion about whether Wong is bad law or is just completely wrong. Many people agree with you. My point is, and has been, that it IS the law, and it will either take a “conservative activist SCOTUS” to overturn it, or a Constitutional Amendment.
Until such occurs, children born in the U.S. 2 seconds after a pregnant illegal alien climbs up the bank of the Rio Grande, is a citizen.
parsy, the realist
I'm not sure I understand what you're saying. Are you saying that Dick Durbin has proposed legislation that would allow a child - even if born outside the US - who is attending school in America, to act as the impetus for her/his parent's ability to obtain a legal residency or citizenship status?
Is that what you're saying?
Even still, wouldn't that be an "anchor child" or "anchor student", and not an anchor baby?
It is bad law alright. Even though Wong Ark by being bad law it still cannot be stretched to making Ark or Obama into natural born citizens.
As you well know, I can not discuss those issues without fear of zot. Therefore, I limit myself to the immigration issues inherent in Wong.
parsy
They didn't intend not to either. There wasn't much of a problem with illegal aliens in 1866-68. While some groups were not allowed to be naturalized, there was no problem getting in for work. Irish and Chinese built the railroads. I don't think there was much paperwork nor any quotas involved at the time.
Wong Kim Ark decided that persons here legally were "subject to the jurisdiction", which is hard to argue against.
But illegals of today are arguably not "subject to the jurisdiction", since they have not subjugated themselves to it.
But even within the current, "drop 'em here and they are citizens" rules, we don't have to let the parents stay and sponsor all their other relatives. Let the parents decide if they want to take the child back to wherever, or leave them here with friends or relatives when the parents are themselves sent back. Once the child is of age, they can then decide whether to take up their citizenship or not. Although that would be a problem, since unless they voluntarily relinquish it, those born in the US are citizens for life, under current court precedents. Not natural born citizens, but citizens.
The Wong Kim Ark decision specifically listed such children as one of two exceptions to the rule that birth on U.S. soil=citizenship. The other was children of diplomats.
Well yes if they fit the same conditions as Wong Kim Ark did. Namely child of legal residents. But the children of illegals do not fit that mold, their parents did not subject themselves to the jurisdiction of the US.
That pretty much is current U.S. law, as a result of legislation passed during Bill Clinton's second term, except for the last part. They are citizens for life, but cannot sponsor their parents for citizenship unless they come back here at age 18 and live here for 10 years.
Here's a little test - let's say that illegal alien father of the newly minted little citizen, leaves the hospital and after celebrating the birth of his son/daughter, he kills someone in a vehicular accident. Can that father be prosecuted under the laws of the US?
Of course he can. Why? Because he's "subject to the jurisdiction thereof"
The subjected themselves to the jurisdiction of the US the moment they walked onto US soil - legally or illegally - just like Ark's parents (although plainly citizens of China), were subject to US law.
You don't absolve yourself of territorial, subject-matter or personal jurisdiction, just because you're trespassing.
Thanks. I thought it might, but couldn't remember specifically and I just haven't had time to read the opinion.
I haven't said that we do or shouldn't. Clearly, we shouldn't. If you break US law and enter the country illegally, you should be deported irrespective of your child's citizenship status.
Yes, exactly, but I have to concede that that point is also dictum because the discussion goes beyond the facts of Wong Kim Ark.
And the United States would be exercising a certain degree or quality of jurisdiction if it seeks to hold such persons in such a military campaign responsible for their actions committed in such a campaign, whether in applying the law of war or otherwise, while at the same time denying that they are subject to that particular quality of jurisdiction for purposes of the Fourteenth Amendment that would give the children thereof U.S. birthright citizenship.
My point is that Wong Kim Ark can be confined to its facts, and indeed neet not even be overruled for the Court to hold that children of foreign nationals who are illegally in the United States are not also subject to that particular quality of jurisdiction for purposes of the Fourteenth Amendment that would give their children birthright citizenship.
Wong Kim Ark was a Supreme court case and is valid for a discussion. The 14th amendment was never ratified by 2/3 of the states and therefore not valid as proof of citizenship rights.
Analytically, the fact that someone is subject to prosecution under U.S. law does not resolve the question of whether that person is "subject to U.S. jurisdiction" to the degree or quality sufficient to entitle his children to birthright citizenship.
The best interpretation of the constitutional phrase in my view is that to have the right of birthright citizenship, a person has to be FULLY subject to the jurisdiction of the United States, and not to only a limited extent.
To be FULLY subject to the jurisdiction of the United States (and therefore entitled to birthright citizenship), as opposed to being subject for limited purposes, a person must have an entitlement to the rights and benefits of jurisdiction of the United States, and not merely be subject ONLY to the potential burden of prosecution under U.S. law.
A foreign national who unlawfully enters or remains in the United States and pretends to be someone with a legal right to live here, does not thereby become entitled to all of the rights and benefits of jurisdiction of the United States. He cannot unilaterally by his actions force the United States against its will to grant him all of the rights and benefits of jurisdiction of the United States (although he can claim certain rights, such as due process). The United States can choose to do so, but cannot be required to do so.
In particular, one of the principal rights or benefits of being subject to U.S. jurisdiction is the right to freely live in the United States. Someone born a citizen or given permission by complying with the relevant statutes to live in the United States has that right or benefit.
To the contrary, in the case of a foreign national unlawfully in the United States, the United States may physically remove him from the country. By definition, the fact that the United States has the right to physically remove him from the country and not permit him to live freely in the United States demonstrates that he is NOT subjection to that FULL jurisdiction of the United States that a person with the right to live lawfully in the country would have.
Furthermore, the fact that the United States may choose to enforce against the foreign national unlawfully in the United States laws against murder, theft, drunk driving, etc. does NOT give the foreign national the entitlement to all of the rights and benefits of jurisdiction of the United States, such as the right to live freely in the United States. Indeed, the United States may enforce a sentence of incarceration against such a person and then physically remove him from the United States. By unlawfully being in the United States, the foreign national has exposed himself to the burden of prosecution under U.S. law, but has not thereby gained all of the rights and benefits of jurisdiction of the United States.
In sum, his status relative to the jurisdiction of the United States is limited, and not of that quality that should entitle his children to birthright citizenship.
"The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment … as the equivalent of the words “within the limits and under the jurisdiction of the United States…”
Justice Gray trips over his tongue and contradicts himself previously as he wrote.
"Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. "
First Justice Gray says to apply the meaning and intent of the first sentence of the 14th Amendment to his opinion as in the former above, and then he does a 180 degree turn around by willfully disregarding what the amendment founders intended by distancing the court from the meaning of the clause "and subject to the jurisdiction thereof" -- that includes not being subjected to another country.
Justice Gray lost his credibility by contradicting his own words and willfully ignoring the authors of the meaning and intent of the 14th Amendment.
I think he is merely saying the DEBATES aren’t part of it. That would be because the results of the debate were put into words. Sometimes the courts have to go deeper into it, but even if they did, here there was evidence that the congress critters knew what they doing and how it could interpreted in the future. One Pennsylvania senator, IIRC, was worried about the gypsies taking over his state.
parsy, who is working from memory here
Of course he can, so can a legal visitor, but that does not make him fully subject to the laws of the United States. Can't be drafted for example, while the legal resident alien can be. They don't have to pay the new Obamacare tax either.
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