Birthright Citizenship -- A Fundamental Misunderstanding of the 14th Amendment

Fox News ^ | January 14, 2011 | Hans A. von Spakovsky

[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.

[snoringbear]

“I’m betting that news will not be good.”

Agree. Also agree that if neither parent is a citizen then although born in U.S. Soil neither should be their odd spring. But, having said that, deporting those already born to the above circumstances has zero possibility of ever happening. In order to do something like those already born and issued citizenship will have to be grandfathered. And, those who are parents of minor children already citizens will have to be granted some sort of exception till their children reach age of majority. I haven’t thought through all the issues associated with executing something like this. But, I do know that numbers news clips every night of SWAT teams kicking down doors and dragging little kids away won’t fly with the Anerican publi. And, I guarantee those against this policy will make sure that this scene occurs, over and over and over......

[DoodleDawg]

That’s the implication.

So that could mean that I'm not a citizen. I have no idea if my great-grandparents were citizens when they gave birth to my grandparents. It they were not then my grandparents were not citizens, which means my parents weren't, and so forth and so on.

[Anitius Severinus Boethius]

I misread what Spakovsky said. Mea Cupla.

The focus of this argument, then, comes down to what the word ‘jurisdiction’ means in legal terms.

I fall clearly on the side that says if you can be arrested and tried by an agency, you are under the jurisdiction of that agency.

In the Medellin v. Texas case, the Federal Government sided with illegal immigrants who were on Death Row but were not given access to Mexican counsel during their trials. Ted Cruz appeared before the Supreme Court and argued that Texas, and not Mexico, had jurisdiction over the illegals because they had committed the crimes in Texas.

The Supreme Court upheld the State of Texas.

It’s in cases like that where I find the understanding that an illegal alien in the United States still is under the jurisdiction of the United States.

Again, it will take a amendment to the Constitution to fix this problem. All it has to be is a simple statement like -

“In addition to other criteria, the mother of a child must be a legal permanent resident of the United States in order for a child born here to become a citizen by birth.”

[xzins]

It is very clear to me that ‘subject to the jurisdiction of’ means that they are the sovereign nation of the individual, and that it does not mean that lawbreakers can be apprehended by the government of a country in which they commit a crime.

The second is a silly interpretation. So, it does strike me that those who play word games should check their logic against reality.

But it isn’t the sovereignty folks who must do that.

You know deep down that no sane legislator would intend such a silly notion as “subject to prosecution for crimes” that is obvious law anywhere and everywhere throughout time.

[Biggirl]

Remember that it came out in the years following the civil war.

[xzins]

See #44.

My sense is that the Congress can do this legislatively with a removal of any court’s opportunity for judicial review.

The Founders gave Congress the final word on constitutional interpretation.

[taxcontrol]

Your logical fallacy is appeal to authority.

You have your authorities, I have mine (SCOTUS).

[tanknetter]

That quote from Senator Howard really says it all, doesn’t it?

And, thanks to the King vs Burwell decision we have recent precedent, loved by the Left, that legislative intent is a critical component of understanding law.

[xzins]

Absolutely. Interpreting it beyond the citizenship of slaves is a real stretch.

[DoodleDawg]

My sense is that the Congress can do this legislatively with a removal of any court’s opportunity for judicial review.

When was the last time Congress exercised that authority? Wasn't during Reconstruction?

[Wallace T.]

Until 1924, American Indians were not considered citizens of the United States, even though all were born within its limits. The reason for the exclusion was that they were considered to have their primary loyalty to the tribal nation to which they were born. As with foreign nations, the United States, as well as states like North Carolina and New York, engaged in treaties with these nations. In that sense, the Indian nations were as much foreign entities as Britain or Mexico. The purpose of granting American Indians citizenship was to facilitate their integration into mainstream American life.

If people here illegally hold citizenship in a foreign country, they are, like the Indians, considered to have their primary allegiance to that country, not the United States. Therefore the child is no more a citizen than the child of two Apaches born in 1890.

This is what Senator Howard meant when he excluded "persons born the United States who are foreigners, aliens...".

[Anitius Severinus Boethius]

Clearly illegal immigration has been revealed to be a big issue in politics, and not in the way the media expected it to. So why don’t we just amend the Constitution and be done with it? Why settle for something less, something than can be twisted or interpreted differently?

We have enough States to ratify this change, so let’s just do it and stop trying to dwell in the nuances of a particular phrase.

[moehoward]

"I'm pretty sure the federal courts (possibly the SCOTUS) have ruled that birthright is the law"

Not specifically, it's referenced in footnotes.

Courts 'deport' children born in the US in custody cases when one parent is a foreign national.

[xzins]

Far beyond the statute of limitations.

[Liz]

Mexico still teaches that the American SW (over which they had very limited control 1821-1848) still rightfully belongs to Mexico; Mexico actively encourages colonization via illegal immigration into the US...and plots to takeback the land.

That makes illegals on US soil a de facto invading army. And just as children born of diplomats are specifically excluded from birthright citizenship, so are children born of invading armies.

Nice deconstruction.

=====================================

JULY 2014---Plotting the overthrow of the US govt w/ Central American federales in the White House. President Barack Obama, President Salvador Sanchez Ceren of El Salvador, left, President Otto Perez Molina of Guatemala, second left, and President Juan Orlando Hernandez of Honduras, right.

Picture below.

[ballplayer]

I thought you didn’t have allegiance to a Soveriegn until you took an oath to the same.
When have the illegal taken an oath to the United States?

[Ray76]

I’m not appealing to authority, merely what the authors stated.

[USNBandit]

I agree with fixing the anchor baby issue. First through legislation that will go to the Supreme Court. Then through the constitutional process, if required. Selling it to the American people is exceptionally important and requires a unified front. We don't get that from the GOPe because they are afraid to stand up for law and order, working families, union trades being displaced, and legal immigrants.

In the mean time the quickest way to stop and reverse illegal immigration is to make e-verify mandatory. I hear a lot about walls and fences, but the demand for illegal labor is the most important driver in illegal immigration. Take that away and you have a much greater chance of securing the border.

[xzins]

I’m not arguing against an amendment, but I am saying that an amendment is not the only avenue.

IIRC, an amendment is a 75% vote of the states after a 2/3rds vote of the Congress. On the other hand, with legislation, Even when over-riding a veto, it’s only a 2/3rds vote. If there’s a President Trump/Cruz, the threshold would be 3/5ths, if there’s a recalcitrant Senate, or if nuked, just a majority.

[taxcontrol]

jurisdiction - noun the official power to make legal
decisions and judgments.

No sane justice or legislator would assert that establishment of laws, and the prosecution there of; is not apart of “jurisdiction” and part of the authority of Congress as established by the Constitution. Thus, those that are subject to the laws of Congress are subject under the jurisdiction of Congress. There is no question in US or even international law that the US Congress has jurisdiction over the lands and territories of the US.

As currently written, the 14th is very clear that it applies (grants citizenship) when:

1) the person in question is born or naturalized within the US
- and -
2) subject to the jurisdiction of the US

If you don’t like it (I don’t), then change it.