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 ...
The 14th gave citizenship to slaves and their children. “Wong Kim Arc” USSC decision expanded that to all children born in the US to legally residing parents, citizens or not.
Key word here: LEGALLY.
The Supreme Court Decision United States v. Wong Kim Ark(1898) contains:
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.The reasoning of the decision explicitly excludes persons not born "within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction," of the US. Like ILLEGAL invaders.
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
Correct, but I have never asserted that point. I would point out that while in another country, you are subject to the jurisdiction and laws of that country. That is an established fact of both US and international law. I have traveled and worked in many other countries and have have been subject to their laws.
My argument is NOT jus soli. My argument is the current reality and jurisprudence. Trying to redefine the meaning and playing word games is not what is needed here. Change the 14th ... and I fully support changing the 14th.
Are you subject to the jurisdiction of the US when you are in Germany?
Is an illegal alien Mexican flying from the US to Germany, subject to the jurisdiction of the US when in Germany? Or is he subject to the jurisdiction of Mexico?
As a soldier of the US Army, yes. When I was in Germany as a citizen, no.
For example, I US soldier who uses the services of a prostitute, is still charged under the laws of the US. A citizen who does likewise while they may break a US law, is not breaking the laws in Germany is not then prosecuted.
However, there is a growing assertion by the Obama administration that any US citizen is always subject to the laws of the US, regardless of location. However, that is a separate discussion.
The reason that it looks like I haven’t read the article is that I reject his line of reasoning and articulate the current jurisprudence.
That is EXACTLY the right analogy.
Can you vote in a German election or can you vote as a US citizen when overseas in Germany?
Are you required to file a tax report by the US government when overseas as a US citizen?
BTW, the author is conveniently ignoring US v. Wong Kim Ark.
No, Wong/Kim is in the article. Go to the link. Fox has to be excerpted to be posted on Free Republic.
Politicians and lawyers seem to have great difficulty discerning the clear meaning of words such as “infringed” and “jurisdiction” and “is”, among others.
German laws (jurisdiction) governs German elections. I have never tried to vote in a German election so I can’t confirm one way or another, if Germany allows non-citizens to vote. I assume not.
As I am paid in the US, by a US company, even when I work overseas, yes I still file US taxes. I would point out that the US tax filing laws are far different than most other nations. With the exception of a handful of nations, there is no tax on income earned outside the jurisdiction of most nations.
The article missed a huge opportunity in failing to cite Chief Justice Miller’s arguments in his dissenting opinion in Wong Kim Ark. Read the piece I linked.
Of course we can. If the US citizen kid is under 18 then it is up to the family to determine if the kid should remain in the US with relatives or accompany the family to the parents country of origin.
If the US citizen kid is over 18 he/she can do whatever they want. The status of the kid has no baring on the status of the parents or their deportability.
The kid can file to immigrate his parents legally after he turns 23 I believe.
Now, would an illegal Mexican living in the US who then goes to Germany have a requirement to file US tax reports?
We could have ‘embassy rooms’ in hospitals where Mexican and Chinese women can have children that will count as citizens of their own countries.
Congress has the wide latitude as the US Constitutional body to make uniform rules of naturalization, and this also includes implementation of laws under the 14th Amendment.
Many of the same Congressmen that brought about the 14th Amendment 6 years earlier clarified citizenship as seen here in the New York Times on March 30, 1874. They understood the intent and meaning of the Amendment.
You, and those who take the same approach as you, have asserted exactly that point. You just don't see it.
I would point out that while in another country, you are subject to the jurisdiction and laws of that country.
Here it is again. Same argument you haven't asserted. Of course I am obligated to follow the penal code of the locality I am visiting. My point is that EVERYONE has that same requirement no matter where they are and where they are from. If that is the intent of the clause in the 14th, then it is superfluous language. That is not the intent and it isn't superfluous.
There is a broader interpretation of jurisdiction that is more political. It really boils down to citizenship. You are not just subject to the penal code but are also a full participant in citizen governance... voting, serving, et al. Would you be called up for jury duty in another county not your home? No. Why not? You are not a citizen of the other county. You are still subject to arrest for infractions of the penal code but you are not a citizen of that locality. That is the broader, political meaning of jurisdiction applied in the 14th as expressed by its authors.
Trying to redefine the meaning and playing word games is not what is needed here.
Playing word games is what has gotten us here in the first place. It's about time our political leaders enforced original intent and stopped the nonsense. There is nothing wrong with the amendment... just something wrong with those who don't understand the language in which it was written. It's the same as the 2nd... when they control the language, they control the argument.
If the political leaders at the time of Dred Scott would have taken that approach, there wouldn't have been a Civil Rights Act of 1866 nor a 14th Amendment. I suggest you read and form arguments rather than going with the status quo.
Hard to argue with the guy who wrote it.
Note that they are very, very careful at all points to distinguish between territorial jurisdiction and political jurisdiction.
The second highlighted paragraph spells it out.
Residency - presumptively legal residency, the kind granted by a nation to a foreigner - is the key point when it comes to those who are not citizens.
Undoubtedly the alien lobby will scream “but illegals ARE residents! They live here!” - but not by any agreement with the owners of the land. It’s the minimum criteria.
Howard and Trumbull understood that, as did pretty much any American of that age: their status as “subjects” of the King was not that far behind them.
People in America now have lived so long without a tyrant ruling them that they have forgotten the concept, and cannot put the word in context.
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