Posted on 08/24/2015 6:10:42 AM PDT by SeekAndFind
Birthright citizenship has exploded into the national discourse. The issue is generating a lot of heat on the Republican side of the aisle in particular, because it threatens to expose the long-standing rift between the partys base and its pro-crony-capitalism establishment.
Unfortunately, in arguing that the 14th Amendment requires citizenship for the children of illegal immigrants, some of the more prominent interlocutors are promoting an incorrect understanding of history. The Wall Street Journals recent editorial on the matter is a case in point, and my good friend John Yoos NR essay repeats one of the same basic flaws.
The first clause of the 14th Amendment provides that 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 Journal thinks the meaning is straightforward: Subject to the jurisdiction covers everyone born on U.S. soil (except the children of diplomats and invading armies), because jurisdiction defines the territory where the force of law applies and to whom and this principle is well settled to include almost everyone within U.S. borders, regardless of their home country or the circumstances of their birth. It then states: By the circular restrictionist logic, illegal immigrants could not be prosecuted for committing crimes because they are not U.S. citizens.
Professor Yoo makes the same claim (absent the ad hominem word restrictionist): Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment.
This claim plays off a widespread ignorance about the meaning of the word jurisdiction. It fails to recognize that the same word covers two distinctly different ideas: 1) complete, political jurisdiction; and 2) partial, territorial jurisdiction.
Think of it this way. When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a temporary sojourner, to use the language employed by those who wrote the 14th Amendment, and not subject to the jurisdiction of the United States in the full and complete sense intended by that language in the 14th Amendment.
The same is true for those who are in this country illegally. They are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the 14th Amendment as a precondition for automatic citizenship. It is just silliness to contend, as the Journal does, that this is circular restrictionist logic that would prevent illegal immigrants from being prosecuted for committing crimes because they are not U.S. citizens.
Moreover, contrary to Professor Yoos contention, the text elsewhere in the 14th Amendment supports this distinction. Unlike the Citizenship Clause, which uses the phrase subject to the jurisdiction, the Equal Protection Clause bars a state from deny[ing] to any person within its jurisdiction the equal protection of the laws. (Emphasis added.) The phrase within its jurisdiction is territorial, whereas the phrase subject to the jurisdiction is political.
There were no restrictions on immigration in 1868 when the 14th Amendment was being drafted and ratified, so there was no debate on whether the Citizenship Clause confers automatic citizenship on the children of illegal immigrants. But we do have debate on the analogous circumstance of Native Americans who continued to owe allegiance to their tribes. One senator exhibiting the same confusion today exhibited by the Journal asked Senator Lyman Trumbull, a key figure in the drafting and adoption of the 14th Amendment, whether Indians living on reservations would be covered by the clause, since they were most clearly subject to our jurisdiction, both civil and military.
Trumbull responded that subject to the jurisdiction of the United States meant subject to its complete jurisdiction, not owing allegiance to anybody else. And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean a full and complete jurisdiction, the same jurisdiction in extent and quality as applies to every citizen of the United States now that is, under the 1866 Civil Rights Act, which the 14th Amendment was intended to codify. That act made the point even more clearly: 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. (Emphasis added.) As the debate over the 14th Amendment makes clear, the shift in language from the 1866 Civil Rights Act to what became the Citizenship Clause of the 14th Amendment was not intended to provide citizenship to the children of illegal immigrants, but rather to shift away from the not subject to any foreign power language out of recognition that the Indian tribes were not foreign powers but domestic (albeit dependent) powers. As Senator Howard explained, the Citizenship Clause excludes not only Indians but persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.
The leading treatise writer of the day, Thomas Cooley, confirmed this was the understanding of the 14th Amendment. As he wrote in his treatise, The General Principles of Constitutional Law in America, subject to the jurisdiction of the United States meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.
When the Supreme Court first addressed the Citizenship Clause in the 1873 Slaughterhouse Cases, both the majority and dissenting opinions recognized this same understanding. The majority in that case correctly noted that the main purpose of the clause was to establish the citizenship of the negro and that the phrase, subject to its jurisdiction was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. (Emphasis added).
That language in Slaughterhouse was dicta (a comment not strictly relevant to the decision), but it became holding a decade later in the 1884 case of Elk v. Wilkins. The Supreme Court held in that case that the claimant a Native American born on a tribal reservation was not a citizen because he was not subject to the jurisdiction of the United States at birth, which required that he be not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. Elk did not meet the jurisdictional test because, as a member of an Indian tribe at his birth, he owed immediate allegiance to his tribe and not to the United States. Although Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states, they were alien nations, distinct political communities, according to the Court, thereby making clear that its holding was about allegiance and not the reservations geographic territory. Then, drawing explicitly on the language of the 1866 Civil Rights Act from which the 14th Amendment was drawn, the Court continued: Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more born in the United States and subject to the jurisdiction thereof, within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.
Professor Yoo is therefore simply mistaken in his claim that the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory. In fact, it has never held that the children born on U.S. soil to parents who are in this country illegally are citizens. In the 1898 case of Wong Kim Ark, the Court simply held that a child born of Chinese immigrants who were lawfully and permanently in the United States domiciled here, to use the Courts phrase was a citizen. Language in the opinion that can be read as suggesting that birth on U.S. soil alone, no matter what the circumstances, confers automatic citizenship is pure dicta, because no claim was at issue in the case other than whether the child of lawful, permanent residents was a citizen.
Professor Yoos contention to the contrary overlooks the Courts use of the word domiciled in describing the nature of Wong Kim Arks relationship to the United States. Domicile is a legal term of art; it means a persons legal home, according to Blacks law dictionary, and is often used synonymously with citizenship. Wong Kim Arks parents were not allowed to become citizens because the U.S. had entered into a nefarious treaty with the Emperor of China that refused to recognize their natural right to emigrate, but they were domiciled in the United States, which is to say, lawfully present in the United States. The holding of the case, as opposed to its broader dicta, does not mandate citizenship for children born to those who are unlawfully present in the United States, and it does not even mandate citizenship for those who are visiting the United States temporarily but lawfully. In both cases, the children, through their parents, retain allegiance to their parents home country to a foreign power, to return to the language of the 1866 Civil Rights Act. They are therefore not subject to the jurisdiction of the United States in the way intended by the 14th Amendment, and therefore not automatic citizens.
As I said, no Supreme Court case has held otherwise. Wong Kim Ark did not so hold. Neither did Plyler v. Doe in 1982, contrary to the Journals assertion; the relevant language in that case is simply a footnote for comparison with the Equal Protection Clause, and pure dicta.
Professor Yoos description of the debate between Senators Cowan and Conness likewise misses the point. Cowan asked whether the Citizenship Clause would confer citizenship upon the children of Chinese parents who were living in California, or the children of Gypsies living in Pennsylvania. Have they any more rights than a sojourner in the United States? he asked. He was attempting to draw a distinction based on race or ethnic background, not on lawful versus unlawful presence in the United States, or even on permanent versus temporary presence. It was for that reason that Conness began his reply by stating that he failed to see what relation Cowans question had to do with the Citizenship Clause.
Conness then responded that automatic citizenship would be available to the children begotten of Chinese parents in California just as existed under existing law that is, the 1866 Civil Rights Act, which extended citizenship to all persons born in the United States, and not subject to any foreign power. That guarantee was available no matter the ethnic background of the parents we were not extending citizenship only to the descendants of white Europeans but his response did not suggest that the children of those who were not lawfully present in the United States, or who were mere temporary visitors, would be automatic citizens. Indeed, Cowans own question Have [the children of Chinese or Gypsies domiciled in the United States] any more rights than a sojourner? demonstrates that he was also aware of the distinction between territorial and political jurisdiction. For the debate to support Professor Yoos position, Conness would have had to respond that even the children of sojourners would be entitled to automatic citizenship. There is not a hint in his response to suggest such an answer, nor in any other part of the entire debate.
So, truth be told, the 14th Amendment does not need to be repealed in order to fix the problem of birthright citizenship for the children of illegal immigrants. It just needs to be understood and applied correctly. The Journals contention that conservatives who insist upon this understanding of the law are promising a GOP version of President Obamas illegal amnesty order could therefore not be further from the truth. Constitutional originalism requires that we give effect to the public meaning of the words actually used, even if the Wall Street Journal would wish the meaning were otherwise. And the Journals further contention that anyone who wishes to see the 14th Amendment faithfully applied is claiming that some people are not real Americans and have no right to be, is simply another ad hominem attack and mischaracterization not worthy of an otherwise great newspaper.
Finally, let me close with some agreement with Professor Yoos soaring rhetoric at the end of his piece, much of which is entirely true. Yes, rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party. And yes, It was the Republican party that opposed Dred Scott. And yes, It was the Republican Party that fought and won the Civil War. And definitely yes, it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race.
But the 14th Amendment did not do away with sovereignty. It did not do away with the importance of citizenship, or with the idea, rooted in the Declaration of Independence, that legitimate governments are grounded on the consent of the governed. Birthright citizenship, as currently practiced, allows those who continue to owe allegiance to a foreign power to demand American citizenship for their children, unilaterally and as a result of their illegal conduct. Those who oppose such an abuse do not support Dred Scott. They are drawing distinctions based not on race, but on the rule of law.
Professor Yoo need not worry, therefore, that applying the 14th Amendment faithfully would discard one of the greatest attributes of American exceptionalism. The welcome mat to American citizenship is open to anyone in the world regardless of race or ethnic background, as long as they adhere to the legal rules set out by Congress for immigration to this country.
John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former dean at Chapman University School of Law. He also serves as the director of the Claremont Institutes Center for Constitutional Jurisprudence.
Naturalized US citizens can be stripped of their US citizenship and sent away to their original countries.
Dual citizens who have double allegiances, even if born in the United States, the US can banish those persons to never come back again to the United States. See Kawakita v. United States, 1952.
Congress has the collective, naturalization, plenary powers of Article 1, Section 8, and Amendment 14, Section 5., but are restrained in Article 1 to make ex post facto laws making it doubtful to strip citizenship in this manner.
I would agree that by coming here illegally you do not have ‘permission’ to be here OR to have a baby here, and if you do you cannot force the USA to make the baby a citizen.
Excellent, thank you. I read the law review you posted and wondered what your thoughts are for the Prof. Chapman article.
I find myself beating my head against the 14th, which seems futile. It doesn’t seem right that an illegal can legally domicile in the U.S., especially if receiving the goodies (welfare) to do so. I realise right and the law are two different things. So it seems there is a path to pursue making it illegal for illegals to work, rent or purchase “domicile”, obtain driver’s license, ss#, tax refunds, etc etc.
Thank you so much for your thoughts on the two articles and responding.
Which one was it? Or does his moniker start with "N.G."?
Sorry I missed that. Now is not the time to be a "birth citizenship" troll. People are waking up.
First, the ‘question of birthright citizenship was not before the court’ in Wong Kim Ark. Then the ‘question of birthright citizenship was not before the court’ in Plyler v. Doe. And yet, Brennan places a deceitful citation in a footnote of the later and the liberal establishment uses it as a false basis for decades of pro “anchor baby” regulations.
Sometimes footnotes are given full force as precedents and sometimes they are not.
I'm glad I'm not a lawyer! The courts are lawless.
Justin Lollman - Wong Kim Ark has long been read unquestioningly as awarding citizenship to every person born in the United States, irrespective of the residency status or domicile of that persons parents.
Not true, and we would not be having discussion if it was true. The Supreme Court has never held illegal immigrants children born in the US as citizens. And see post #55.
Justin Lollman - United States to nondomiciled, alien parents. Put differently, the Citizenship Clause only extends to persons born in the United States to parents, one of whom is either a U.S. citizen or a U.S.-domiciled alien. This reading not only finds support in the Clauses original meaning, but also, as this Note attempts to show, was the interpretation endorsed by the Supreme Court in Wong Kim Ark.
Again not true. In Justice Grays' opinion, see post #27, he says the opposite.
You got the initials right on the first guess. [We know these obot trolls too well.] The smack down is worth a read. Look at the last post/post 83 on the NBC thread:
Trump: I don’t think children born to illegal parents have citizenship
Hot Air ^ | 8/19/2015 | ALLAHPUNDIT
Posted on 8/20/2015 3:01:48 PM by Laissez-faire capitalist
For a very good and easier read about citizenship than Wong Kim Ark is to review
Supreme Court case Rogers v. Bellei, 1971.
http://caselaw.findlaw.com/us-supreme-court/401/815.html
This is a superb article. I now have a complete, accurate understanding of the 14th Amendment’s application to the “birthright citizenship” issue: no U.S. citizenship for anchor babies.
Unfortunately Bill O'Reilly doesn't appear interested in changing his mind once he's started to believe something. He runs roughshod over actual experts who try to explain his errors to him. I'll never forget the time Thomas Sowell tried to explain the law of supply and demand to him and he just talked over him until Sowell gave up. O'Reilly lost a lot of credibility for me that day, and he's never earned it back.
You too can be just as "good" as lieyers reading legal opinions. :-)
"How to Read a Legal Opinion "
By Orin Kerr, George Mason U., 2007
From 'How to Read a Legal Opinion'. Link posted in #71.
..."In other setting, courts may justify their decisions on public policy grounds. That is, they may pick the rule that they think is the best rule, and they may explain in the opinion why they think that rule is best. This is particularly likely in common law cases where judges are not bound by a statute or constitutional rule."
Alas, Justice Gray in WKA dismissing Senator Howard's and other law makers' intent about the 14th Amend. that they were only "debates" so he could justify his opinion under the common law of England.
dear dsc,
I suppose all of your proposals might have an iota of merit, were you not to disqualify yourself as being educated to the reference that I had made, regarding the actions that President Eisenhower, (you DO recognize that name, don’t you?), took to relieve this nation of the illegal immigrant problem during his time in the White House.
He had the illegal immigrants boarded on ships and sent to disembark, in southern Mexico, near to that country’s southernmost border.
There is no known record of what happened to those who refused.
Legislation? Since the mulatto queer loves using the Executive Order, as a democrat, why not the next Republican do the same, in regards to the illegal invaders?
RE: This is a superb article. I now have a complete, accurate understanding of the 14th Amendments application to the birthright citizenship issue: no U.S. citizenship for anchor babies.
The great thing about National Review is this — they presented BOTH OPPOSING SIDES of the issue.
The first one was written Professor John Woo of UC Berkeley Law School who argued FOR birthright citizenship even for children of illegals.
See here:
http://www.freerepublic.com/focus/f-news/3327882/posts
This article is a rebuttal to that one.
Should have used a /s
Professor Yoo is therefore simply mistaken in his claim that the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory. In fact, it has never held that the children born on U.S. soil to parents who are in this country illegally are citizens. In the 1898 case of Wong Kim Ark, the Court simply held that a child born of Chinese immigrants who were lawfully and permanently in the United States domiciled here, to use the Courts phrase was a citizen. Language in the opinion that can be read as suggesting that birth on U.S. soil alone, no matter what the circumstances, confers automatic citizenship is pure dicta, because no claim was at issue in the case other than whether the child of lawful, permanent residents was a citizen.
Justice Brennen's silly footnote in Plyler:
As I said, no Supreme Court case has held otherwise. Wong Kim Ark did not so hold. Neither did Plyler v. Doe in 1982, contrary to the Journals assertion; the relevant language in that case is simply a footnote for comparison with the Equal Protection Clause, and pure dicta.
Liberal Brennen knew WKA, 1898 never held so he slips in a footnote #10 referring to some early 20th century book author. No Supreme Court case to cite, so he goes to meaningless dicta.
I suppose all of your proposals might have an iota of merit, were you not to disqualify yourself as being educated to the reference that I had made, regarding the actions that President Eisenhower, (you DO recognize that name, dont you?), took to relieve this nation of the illegal immigrant problem during his time in the White House.
Ya just had to get snide and shirty, didnt you? I was alive for Eisenhowers terms in office, and recently refreshed my memory with the article thats been going aroundwhich, I suspect, is where you first learned of those events.
He had the illegal immigrants boarded on ships and sent to disembark, in southern Mexico, near to that countrys southernmost border.
He had *some* illegal aliens taken by ship to Veracruz, which is on the Gulf coast not especially near the southern border. Interestingly, Old Fuss and Feathers landed his menincluding Marse Robert and U.S. Grant—at Veracruz in 1847.
There is no known record of what happened to those who refused.
It is safe to assume that the first couple of trouble-makers got butt-stroked in the mouth with the steel butt-plate of an M1 Garand, and the rest just trotted aboard.
Legislation? Since the mulatto queer loves using the Executive Order, as a democrat, why not the next Republican do the same, in regards to the illegal invaders?
The difference between good and evil is that good does things right.
When lawyers are involved, common sense isn't.
A proposed amendment becomes part of the Constitution when it is ratified by three-fourths of the States (38 of 50 States).
I need to check my 2014 midterm results.....but even uber-liberal states voted in Republicans.
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