Posted on 08/18/2015 6:39:22 AM PDT by xzins
Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally. But that ignores the text and legislative history of the 14th Amendment, which was ratified in 1868 to extend citizenship to freed slaves and their children.
The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second conditional phrase is conveniently misinterpreted by advocates of “birthright” citizenship.
Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.
But that is not what that phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.
Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.
Federal law offers them no help either. U.S. immigration law (8 U.S.C. § 1401) simply repeats the language of the 14th Amendment, including the phrase “subject to the jurisdiction thereof.” The State Department has interpreted that statute to provide passports to anyone regardless of whether their parents are here illegally ... birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution.
We are only one of a very small number of countries that provides birthright citizenship, and we do so based upon an erroneous executive interpretation. Congress should clarify the law according to the original meaning of the 14th Amendment and reverse this practice.
(Excerpt) Read more at foxnews.com ...
I repeated the same cursory search here for the Slaughterhouse Cases. No joy there either.
It's all I had time for right now. Sorry.
Or President Trump could move on this without any Congrerssional action at all.
You are pointing out some of the frustration with living in America today and that is the conversion, inversion and even perversion of definitions. In a historical sense I think we can correlate these observations to the general movement to drive God out of our schools and institutions, causing a loss of moral and practical judgment.
The words you point out are a start to a larger list. Indeed even ‘abortion’ was twisted as a right of privacy under the 4th Amendment.
I’ve often sought and asked the question of why the Founders had not insisted on including a table of definitions and explanations in the US Constitution as would normally be found in a contract or compact. The answers I have found or been advised of are that most definitions were already well-understood from the body of English Common Law.
However, it seems that as history removed the United States further and further from its roots in English Common Law, the training of lawyers eventually abandoned the study of English Common Law leaving jurists to fly on their own so to speak adhering to the direction made by leading jurists who were in turn given much free rein following Marbury vs. Madison which left the courts free to say what the law is.
Other reasons for not including careful and precise definitions, meanings and intents were to avoid having the US Constitution become a book. One of the aims of writing the US Constitution was to make it brief and understandable to the People. It was not to be an elaborate contract among the States to form a central government. It was worded to be understandable by the common American. This was necessary towards it ratification and adaptation.
We can envision state delegates and their principle legislators getting to the hard work of creating a reference ‘book’. Just as a wild guess I see such a book as limited to 25 pages in normal type so that it would be quite portable and manageable. It should be feasible then to incorporate the book by reference into a constitutional amendment as a binding source document. I’m sure lawyers would be thrilled to work on such a project. We can remember too that such a ‘General Reference Amendment’ would still require 2/3’s of the state delegates to propose it as an amendment and 3/4’s to ratify and make it part of the Constitution. So it would be safe to do as a project; I’m sure the work product of such a product would be a milestone in a new era, the ‘American Reformation’! Very exciting wouldn’t you say?
One other note, just watching the effort and debate associated with a ‘General Reference Amendment’ would be so educational and enlightening to American society and particularly to its younger generation as they would come to understand how words, meanings, intents and interpretations are so influential to their lives and futures. It could help to pare down the sloppiness of speech and could bolster appreciation for fine critical thinking. Anyways, I would like to see it and I’m never one to dismiss such thinking as fantasy because I saw in my lifetime a single man turn around a whole generation of youth to a healthier and more prosperous way of life. So I know it can be done if the right people are inspired and empowered to get it done.
Good post. Left wing media such as Fox News and CNN already spreading disinformation regarding this.
That’s truly interesting.
They seem to have willfully ignored it.
Did that bill pass?
In a way there was reason to do so. Unless it was the language of the statute that passed and was signed by the President, it has no force of law. When one is grasping at originalist straws like we do, it seems compelling evidence of intent.
I don't see Fuller doing as you suggest. That opinion is worth the read. He likened birthright citizenship akin to a press gang in that citizenship entails obligations not entered into voluntarily by either the person or his/her progenitors.
How can we deport them if they aren't subject to our jurisdiction?
Because they are within US jurisdiction. To be subject to it is entirely different. Think "British subject." Yes, the 14th Amendment citizenship clause 'set the slaves free' by subjugating everybody else. The whole thing needs to be dumped.
I read it too and he doesn't deal with it in any convincing way. He hand waves and talks about one obscure man's opinion. Wishful thinking mascarading as legal analysis.
An excerpt.
"...But child born within the United States who are not citizens, and who do not reside within the United States, and who are not subject to the jurisdiction of the United States [inheriting foreign citizenship ] shall not be regarded as citizens thereof. "
This was totally in effect until U.S. vs. Wong Kim Ark opinion 1898 conferring US citizenship upon Ark who was also a subject of the Chinese Emperor because his parents who were legal and permanent residence in the United States at the time of Ark's birth.
Mark Levin is in much agreement if not all agreement here and stating that 14th Amendment has been perverted.
He's going off big time about this on his show.
Why couldn't they do this with any constitutional provision - say the 2nd amendment?
Once there's no judicial review anything goes.
If you are a citizen of another country then you are subject to their jurisdiction and not ours.
Chief Justice Marshall wrote the following in The Exchange v. McFadden. Many citizenship cases have cited it or cases that rely on it, including Wong Kim Ark, Elk v. Wilkins, and Minor v. Happersett.
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.
How, practically?
Yes, the 14th Amendment citizenship clause 'set the slaves free' by subjugating everybody else. The whole thing needs to be dumped.
OK, but that means repealing the 14th.
My thanks to all of you on this thread for a very enlightening discussion- I’ve learned quite a lot- this is why I love FR.
http://www.wildergarten.com/wp_pages/articles/birthright_citizenship.html
OK, but that means repealing the 14th.
Not insofar as birthright citizenship is concerned.
Sorry, that article doesn't address the question. As a practical matter, if someone is subject to the "territorial jurisdiction" of the US how is that jurisdiction diminished because that same person may also be subject to the "political jurisdiction" of another country?
Other than diplomats do we care about other allegiances when enforcing our laws? What is the practical effect of your distinction?
Yes it does. You just don't like it. So you redefine the terms, sic:
As a practical matter,
To which you then become judge of what constitutes a "practical matter." No sale sirrah. To be within a jurisdiction means that one is held to the laws. To be A subject, places one a MEMBER of the nation that enforces the laws, just like the definition of "subject" from the pertinent Bouvier law dictionary as quoted in the article you are ignoring says it does.
You are being deliberately obtuse.
if someone is subject to the "territorial jurisdiction" of the US how is that jurisdiction diminished because that same person may also be subject to the "political jurisdiction" of another country?
As far as enforcement goes, a foreign national within US territory is required to obey the laws pertinent to citizens AND THEN SOME, as you know very well. Citizens aren't required to carry passports. Citizens don't have to report to the INS. Said foreign national is not entitled to all of the rights and protections pertaining to citizens.
Got it now?
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.