Will and Citizenship (commentary on G.Will's piece on "anchor babies")

"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. "

This is where you and I part ways. You're arguing the analytics of it, and I'm describing what the law is, and how it's been interpreted by the court.

"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."

Again, you've described an interpretation without judicial precedent. I'm not aware of any binding precedent that uses the phrase fully subject. Prudentially speaking, it (subject to the jurisdiction thereof) is not a condition of varying gradation.

"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."

Just because someone doesn't qualify for all the legal privileges and rights associated with citizenship, doesn't mean they aren't subject to the jurisdiction of the country. Again, you continue to completely ignore the definition of "jurisdiction". You should learn what it means, as this is the precise word used in the 14th, as well as applied in Ark.

Look at this excerpt from the majority opinion in Plyler v. Doe...

"Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." [n10] We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized [p212] that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority."
Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the protection of the laws is a pledge of the protection of equal laws.
Yick Wo, supra, at 369 (emphasis added).

In concluding that "all persons within the territory of the United States," including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. Wong Wing, supra, at 238. [n11] Our cases applying the Equal Protection Clause reflect the same territorial theme: [n12] [p213]
Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities, each responsible for its own laws establishing the rights and duties of persons within its borders.

The Supreme Court is clearly saying that the 14th isn't exclusively limited to citizens, but is applicable anyone subject to the jurisdiction thereof. Plyler is also CLEARLY holding that even illegals are "subject to the jurisdiction thereof", without qualification.

"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."

Sure, but that were aren't talking about all rights, we're talking about birthright citizenship. The Court has affirmed, without equivocation, that anyone born in this country to parents "subject to the jurisdiction", is a birthright citizen.

"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."

Again, you keep arguing about the "quality" of the jurisdiction. But NO HOLDING in the US Supreme Court makes such a distinction with respect to "subject to the jurisdiction thereof".

If you're prayer is that a case will come along where a Court will find such an exception, I believe it unlikely that such a case will prevail. It would require that the course at least partially reverse themselves on more than a dozen cases including Ark & Plyler. That is highly unlikely.

This is where you and I part ways. You're arguing the analytics of it, and I'm describing what the law is, and how it's been interpreted by the court

In this particular post, yes, I am stepping back and offering more broadly what I would consider the best approach to Constitutional interpretation of this phrase.

In my prior posts on this thread, I pointed out that your description of the existing law was incorrect insofar as you claim that Wong Kim Ark holds that children born to foreign nationals illegally in the United States are entitled to birthright citizenship under this clause. Wong Kim Ark holds no such thing.

Plyler v Doe did not address, and was not interpreting, the phrase "subject to its jurisdiction" in the Citizenship Clause of the Fourteenth Amendment. To the contrary, it was interpreting the Equal Protection Clause: "[no] State [shall] deny to any person within its jurisdiction the equal protection of the laws." Plyler was an ideologically-driven 5-4 decision that was more a judicial advancement of the liberal agenda than an objectively-decided court case. The majority opinion gives the game away when it uses in the opinion terms such as "innocent children" and "undocumented children." The majority goes over the ideological edge when it bases its decision on the fact that the Texas law was "directed against children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control." Powell and Blackmun emoted their belief that these children "should not be left on the streets uneducated" (well then, Powell and Blackmun should have run for office in the Texas legislature!). A foreigner in a balloon whose balloon is, against his best efforts, carried by the wind and lands in the United States is just as much an illegal alien, even though he attained his status through a situation in which he had "little control." Of course, Plyler was wrongly decided. The four dissenting conservative justices correctly saw this as nothing more than a naked attempt on the part of the liberal justices "to set the Nation's social policy." Were this case to be addressed de novo by today's court, I would expect it to go 5-4 the other way, with Kennedy on the side of the conservatives.

But in any event, Plyler is certainly not dispositive against my offered interpretation of the Citizenship Clause, and to the contrary I acknowledged in my post that a foreign national illegally in the United States "can claim certain rights, such as due process" and, yes, equal protection as well.

One can look at the phrase "subject to the jurisdiction thereof" in the narrow sense of whether a particular court can properly hail a certain person (or thing) to come before it. However, my argument is that to accomplish the objects for which this clause was intended, the intent was that "subject to jurisdiction" meant the full panoply of relationships with a person as to which the state has authority.

My position as to intent is supported by comments made by senators at the time of adoption. The senator who authored the Citizenship Clause stated that birthright citizenship would not include "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States" and stated that "subject to the jurisdiction thereof" meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now" and that the United States possessed a “full and complete jurisdiction” over such persons (emphasis added).

In 1873 the U.S. Attorney General opined that "the word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment... Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them." (14 Op. Atty-Gen. 300)(emphasis added) Obviously this is a very old opinion and would not today be controlling, but it is interesting in that it does echo the thinking of the time of adoption of the Fourteenth Amendment of the distinction between a full and complete jurisdiction versus a limited jurisdiction with respect to a person.

It would require that the course at least partially reverse themselves on more than a dozen cases including Ark & Plyler.

You are simply wrong here. Wong Kim Ark does not extend to illegal aliens, and Plyler's holding does not address the Citizenship Clause.

To sum what I am saying:

1. Congress can take the position in a statute passed under Section 5 of the Fourteenth Amendment that "subject to the jurisdiction thereof" does NOT include children born to aliens not legally resident here.

2. As to whether, in that case, Congress has altered the meaning of the Citizenship Clause, the Supreme Court has stated that it will give "wide latitude" to Congress in deciding whether it has altered the meaning or is merely seeking to carry out the objects of the provision.

3. The Supreme Court has not directly ruled on whether the children of foreign nationals who are in the United States illegally have birthright citizenship. The holding of Wong Kim Ark does not extend to these facts. The most apposite analogy to these facts is the question of whether children of parents who are foreign nationals in a military campaign on United States soil are birthright citizens. In both cases, the presence of such parents in the United States is contrary to the will and laws of the United States and the answer in both cases should be "no."

4. Yes, a Supreme Court with five liberal justices would fall over themselves to grant birthright citizenship to children of illegal aliens, regardless of what Congress does. However, a conservative majority confining existing law to the actual holdings in those cases could deny birthright citizenship by distinguishing and not overturning existing precedent, and such a result would better accomplish the intent and purpose of the Citizenship Clause.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.