Posted on 08/21/2015 8:22:45 AM PDT by nathanbedford
In addressing these issues, this Note seeks to fill a significant gap in the legal literature. To date, little scholarly attention has been paid to whether the Citizenship Clause, as interpreted in Wong Kim Ark, requires a showing of parental domicile. What is more, no scholar has ever actually analyzed, in any systematic way, how such a requirement would apply to the U.S.-born children of illegal immigrants. The requirement for which this Note argues is unique in two main respects.
(Excerpt) Read more at virginialawreview.org ...
Excellent read.
Short version. Illegals would need to provide proof of residency going back 5 years for the anchor baby to be considered a citizen.
Yes. Interesting that the author suggest Congress is free to “liberalize’ but not the other way….
He does point to the 5 year naturalization requirement. So that term has been settled on, seems a good fit.
The notion of intent to reside by an Illegal, I’m none too sure on. Certainly under a President Obama an Illegal has a reasonable expectation of being able to stay as long as he likes. Under a Trump presidency it would likely be a different matter.
I read the whole thing. That splat noise you heard was my brain exploding.
Ok there are some ways according to the article to deal with the problem, but not much and nothing to stop illegal immigration or much of anything to stop anchor babies. Am I reading this correctly?
At this point, the wall (?), more restrictive visas, actually enforcing current law? My thoughts are take away the goodies for illegals. Don’t allow establishment of domicile unless in the country legally, everity so only citizens of legal residents can work, resulting in self deportation.
Legal papers make me feel like I’m reading Shakespeare and I just zone out. Had to go back and re-read some passages.
Seems to me our country is doomed, right?
I think Mark Levin and others are flat wrong when they attribute the power to Congress by virtue of article 1 section 8 to redefine the fourteenth amendment. That is a power to affect naturalization only.
To apply this: if the rules of how domicile is established are by residency plus intent (to establish permanent connection) and that is defined by common law or the understanding as at the time of the passage of the fourteenth amendment, Congress may not arbitrarily regulate how that is to be determined for the purposes of birth citizenship although it certainly may do so for the purposes of naturalization or establishing residence or citizenship in a state.
But I think the article is largely correct, even if we persuade the Supreme Court that the fourteenth amendment does not mean what everybody thought it meant for the last 100 years, it is probable that the court will still throw a wrench in enforcement and we will be left in the same practical predicament.
Therefore, you are right, we have to look to things like E verify with teeth and a real commitment to deprive illegals of employment in America. We should also look to stopping out right chain migration, as difficult as that will be politically.
Above all, we must stop all illegal aliens in America who are not constitutionally entitled to become citizens from voting.
The Scrotus can't make anyone a citizen.
The Constitution Article 1 section 8 clause 4 gives Congress plenary power to institute a uniform rule of naturalization. The 14th Amendment reaffirms Congress plenary power in clause 5.
The power of naturalization ie who is to become a citizen of the U.S. is an ENUMERATED power GIVEN SOLEY TO CONGRESS BY THE CONSTITUTION
So when SCROTUS wants to pipe up and write law from the bench as they did in Wong Kim Ark. Congress should have impeached the dirty black-robed farks.
Thanks for playing
Tomato Tomatah. Assuming residency/domicile was key in Ark as a requirement for birthright citizenship. And Congress holds the power for naturalization, they could pass any term they see fit. No ?
I don’t play make believe.
The purpose of the fourteenth amendment was to define birth citizenship and protected from the power of Congress (and from the states).
Or a world of solipsism in which no reality exists that you don't see and if you don't read it you can't see it.
I am of the opinion that the jus soli foundation for American Citizenship is false. That our Break from England in 1776 effectuated a break with it's feudal based rules governing subjects , and that we thereafter did not follow English Common law on this matter. There is quite a bit of evidence to support this position.
I am likewise of the opinion that the reason so many people today believe we followed English Common law was because so many people in the early 19th Century were asserting that we did; Specifically William Rawle in his widely distributed book " A View of the Constitution."
But Rawle was not a Delegate at the Constitutional convention, nor was he a member of any State's ratifying legislature. He was the Son of a British Loyalist during the War for Independence, and received his legal training in England, where he would have been taught nothing else. In addition to that, I have evidence that indicates Rawle deliberately lied about this in the writing of his book.
Most of the people who make the claim that we follow English Common law were not Delegates or Legislators and had nothing to do with adopting the US Constitution.
The Only exception of which I am aware is James Madison during his defense of William Loughton Smith, but Madison himself contradicted this position as President, so you could say he's on both sides of the issue, though I would say his acts as President count for more than his words while trying to support a political ally in Congress.
The people who WERE Constitutional Delegates or members of the Ratifying Legislature indicate that we did NOT follow English Common Law, but rather followed Natural Law as related by Emmerich Vattel.
I would point out that after the treaty of Paris, there were Hundreds of thousands of British Loyalists and their children who did not suddenly become American just because they were born in the US after July 4, 1776. The rule was never applied to Indians, and it was also never applied to slaves.
The jus soli principle is conspicuous in regards to how many exceptions there were to it throughout American History. It had so many exceptions that they had to enact a 14th amendment just to create a de facto jus soli rule.
Obviously Slaves were exempt to it till 1868, and Indians were exempt to it till 1924. A rule with many millions of exemptions is hardly a rule at all.
“drive-by tourism babies are the smallest part of the anchor baby problem”
Yeah, but it’s something. And the process of passing a law to end it would IMO help build the case with the public for further action.
Great article! My favored argument is that the US government has partially surrendered it’s jurisdiction over illegals through non-enforcement.
In international law even an implied voluntary surrender of jurisdiction by a nation is a significant point. But, of course, I’m no lawyer and there are other points that would matter- points that I can’t imagine.
Thank you very much for the clarity and an exceptional post.
Challenging read and highly educational. I try to educate myself to learn the facts so I don’t get caught up in the spin, separate the wheat from the chaff so to speak. I’ve put it to use already in disputing some other readings I did after, so thank you. Bookmarked this!
That said, looking for direction for further studies of this subject. Especially for when candidates start fleshing out their platforms and promises to decide who I want to eventually support. Leaning Trump, but not too sure...trying to separate the realities from the populism.
I want to be able to ascertain promises as doable vs feel good fallacies. Ex, just watched a video on immigration. The whole thing was throwaway based on reading this article. So totally disregarded it. Probably would have accepted some of the premises prior to reading this article.
So birthright citizenship is a bust, no use persuing.
Concentrate on controlling immigration, current law, everify, and voting laws, yes?
Thank you again and I will look for your posts going forward.
Just because I think the author of this piece has got it about right does not mean that I'm supporting the Republican establishment who want us to roll over and play dead on the issue of immigration. I just want us to understand what the law and Constitution say as best we can figure out without wishful thinking.
I believe it is probably wishful thinking to believe that we can convince the court consisting of four leftists whose vote is already in the bank and two unreliable jurists that everybody's understanding of the fourteenth amendment for more than a century was wrong. But even if we could accomplish that task thanks to the scholarship in this article, I think the victory would be limited to tourist babies and the court would no doubt impede enforcement in other ways. We have to remember that race is an issue and when race is part of the Supreme Court's consideration strict scrutiny is used and the conclusions are foregone.
Thanks for the kind words.
The problem is the fourteenth amendment was adopted in 1868 not in 1787. The author's thesis is to the effect that geography determines unless there is an absence of domicile. That puts us back in nearly as tight a box as the conventional reading which says that all non-diplomat, non-soldier births are citizens leaving us with only tourism babies.
There is another problem, if we reject the author's argument entirely and say jus soli means nothing except what Congress says it means, you don't really have birth citizenship at all which is a an exceedingly strained interpretation of the fourteenth amendment and clearly contrary to the holding of the Wong case.
Thank you for your time.
I know this is far fetched, but as a rhetorical question, has the Supreme Court ever been overruled? I’ll check that out.
Thanks again!
I am not at all convinced that domicile is a deciding factor.
The American Indians were long domiciled, yet what prevented them from coming under the 14th was the fact that they refused to be under the jurisdiction of the US.
A illegal border crosser has violated that jurisdiction and should be automatically excluded. Secondly, since the mother is to be excluded, and the child certainly has no ability to express a desire to remain under the jurisdiction of the US, the child therefore is a citizen of the Mother's home country and not a citizen of the US.
This entire anchor baby nonsense is a liberal touchy feely interpretation that even fails to distinguish the original intent of the 14th, much less interpret it correctly.
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