Yea, good luck with that.
I thought this only applied to children of slaves as there was a question of their citizenship.
The law should require that the mother be here LEGALLY.
No more anchor babies!!!
Mark Levin layed out the case why the constitution does not gave grant birthright citizenship in the first hour of his show, and why Judge Nap is wrong.
The debate is already underway: http://www.freerepublic.com/focus/f-news/3326273/posts
Read the whole thing if you want to know where the truth lies on this.
8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.
Which of these categories do illegals fall under?
What nitwit wrote that? A law trumps the Constitution?
Good grief how foolish and ignorant.
The 14th Amendment is about as clear on this issue as anything in the Constitution.
The Contitution gives Congress the power to define what “subject to the jurisdiction thereof” means in Section 5 of the 14th Amendment.
Napolitano doesn’t know what he is talking about.
The biggest problem this has is precedence. Do you go and tell people born here 40 years ago, go home?
The only thing we could likely do is pass a statute that says birth right citizenship ENDS at XX date, win the legal challenges and have it over for any new cases.
It’s there in one of the penumbras somewhere, trust me....
Simple answer: border jumping while 7mos pregnant or more is child endangerment. CPS will take your newly minted American and place them for adoption with an American couple.
If your newly minted American crumb cruncher is lucky, they might even get a heterosexual couple...
Good argument. Actual constitutional analysis going on here. That is rare these days.
The law itself:
Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.
The Citizenship Clause of the Fourteenth Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The Civil Rights Act [1866] included a definition for national citizenship, to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
That was the original meaning of the jurisdiction language in the Fourteenth Amendment. A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government.
Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires.
In case law:
In 1884, the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment. The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens.
That is why Congress can specify that the children of foreign diplomats and foreign soldiers are not Americans by birth. They’re not “subject to the jurisdiction” of the United States. Congress’s INA does not grant them citizenship; federal law never has.
The 14th Amendment confers citizenship on persons (i) born in the US AND (ii)subject to to the jurisdiction of the US. If a child of an illegal alien is born in the US, at the second of its birth, it is “in the US”, on US soil [clause (i)]. I having the baby drop on US soil is automatically sufficient to satisfy the “subject to” clause [clause (ii)], there would be no reason to have the “subject to” clause in the first place since 100% of all babies born in the US would automatically satisfy the “subject to” clause. The “subject to” clause would have no meaning—it would be useless.
The amendment should be interpreted in such a way that the language of clause (ii) is not useless. That means that there must exist a class of babies born on US soil who fail the “subject to” clause.
There is plenty of room to interpret which babies born in the US do not satisfy the “subject to” clause.
Liberals would argue that the only babies born on US soil who do not satisfy the “subject to” test are children of foreign diplomats, heads of state, as set forth in the immigration statute. If they are not subject to US jurisdiction it is because of a treaty or international law, which are laws inferior to the constitution. It would be odd indeed to interpret the constitution by reference to a law inferior to the constitution.
Odd, but not impossible.
If the inferior law in question was in force when the 14th amendment was enacted, perhaps that should be taken into account since that inferior law might be considered to be the common interpretation at the time the 14th amendment was enacted. I do not know what the immigration statutes said at the time of the 14th amendment.
If the inferior law was enacted under Congress’ power to interpret and implement the 14th amendment, Congress should be able to change that law if they determine that an earlier interpretation was incorrect or did not address a specific situation, such as children of illegal immigrants. This is especially true in the case of immigration, given Congress’ broad powers over that field.
Seems to me that if you say illegal aliens aren’t “subject to the jurisdiction” of the USA, then you’re saying that (like foreign ambassadors) they can’t be penalized under our criminal laws. Therefore, they can only be deported, not put in prison.